Dealing with Discipline
Defined, Overview, and Regulations
Discipline is a hot topic. When the federal special education law was passed in 1975, Congress found that most handicapped children were not receiving an appropriate education - and that millions of children were excluded from school altogether.
Students miss classes every day because of suspensions and expulsions, sometimes for only a minor infraction. Office for Civil Rights data shows that minority students and students with disabilities are disproportionately impacted.
Today, schools continue to suspend and expel students with disabilities for behavior caused by their disabilities. If you are advocating for a child with behavior problems, the articles and resources collected on this page will help.
Change of Placement for Disciplinary Reasons
What constitutes a change of placement?
School personnel have the authority to make additional removals of a child with a disability for not more than 10 consecutive school days in the same school year for separate incidents of misconduct—as long as those removals do not constitute a change of placement under §300.536. Section 300.536 states that a change of placement occurs if:
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The removal is for more than 10 consecutive school days; or
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The child has been subjected to a series of removals that constitute a pattern.
What factors are to be considered in determining if the series of removals constitutes a pattern? IDEA states in §300.536 that a pattern would exist—
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when the series of removals total more than 10 school days in a school year;
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when the child’s behavior is substantially similar to the child’s behavior in previous incidents that resulted in the series of removals; and
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when additional factors exist such as the length of each removal, the total amount of time the child has been removed, and the proximity of the removals to one another.
Does a suspension of less than 10 school days constitute a change of placement?
A student with special needs may be suspended for up to 10 school days (cumulative) during the school year. A suspension of 10 school days or less is considered short-term. The school may follow regular student discipline procedures.
What if the child gets suspended for more than 10 days?
1. Exclusion of students with disabilities for more than 10 consecutive school days constitutes a change of placement, which requires both a TEAM meeting and parental consent. However, the school does not need a parent’s consent if either a court or the Bureau of Special Education Appeals (BSEA) approves the exclusion. This may happen if the court or BSEA decides that the student’s continued presence is substantially likely to result in injury.
In the event there is a court order or BSEA appeal, parents are advised to consult with an attorney to learn about additional specific rights.
If the special education student has brought any weapon or drugs to school, or has inflicted serious bodily injury on another person at school, the district may place the student in an alternative placement for up to 45 school days, with or without parental consent, and without court or BSEA approval.
2. All students who are suspended for more than 10 school days, regardless of whether they receive special education services, must have a fair hearing that includes the following procedural rights:
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written notice of the charges (in the student’s primary language);
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the right to be represented by a lawyer or advocate (at the student’s expense);
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adequate time to prepare for the hearing;
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access to documented evidence prior to the hearing;
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the right to request that witnesses attend the hearing and to question them; and
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a prompt written decision including specific grounds.
Use of suspension/expulsion with student who are identified as having a disability under IDEA:
A student is “suspended” when he has temporarily lost the right to go to school. An “expulsion” is a permanent exclusion from a particular school.
Change of placement due to expulsion:
Most importantly, a school system cannot impose a long-term suspension or expel a student with special educational needs if the behavior for which s/he is being disciplined was a "manifestation" of his or her disability. (§1415(k)(4)(B),(C)) IDEA provides that the IEP team must find that behavior was a manifestation of the child's disability if:
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the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability; or
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the conduct in question was the direct result of the local educational agency’s failure to implement the IEP.
If either of these circumstances applies, the IEP team must correct the IEP or its implementation and, except for the 45-day provisions I described earlier, the school cannot legally suspend the student beyond ten days. If the team finds that the behavior is not a manifestation of the child's disability, the school can suspend longer than ten days as it can a student without a disability, but must still provide ongoing education under his/her IEP during the suspension.
Manifest Determination Review
Definition/Requirements:
When a child with a disability engages in behavior or breaks a code of conduct and the school proposes to remove the child, the school must hold a hearing to determine if the child’s behavior was caused by his disability. This hearing, a Manifestation Determination Review (MDR), is a process to review all relevant information and the relationship between the child’s disability and the behavior.
Consequences for problem behaviors should not discriminate against a child based on his disability. Yet, schools continue to suspend and expel students with disabilities for behavior caused by their disabilities.
Behavior Determined not a Manifestation of Disability
A manifestation determination of “no” means either that:
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the child’s behavior was not caused by or did not have a direct and substantial relationship to the child’s disability; or
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the child’s behavior was not the direct result of the LEA’s failure to implement the IEP.
In either case of “no,” school personnel have the authority to apply the relevant disciplinary procedures to the child with disabilities in the same manner and for the same duration as the procedures would be applied to a child without disabilities, except—and this is very important—for whatever special education and related services the school system is required to provide the child with disabilities under §300.530(d).
Behavior Determined to be a Manifestation of Disability
There are two scenarios under which the manifestation determination would be “yes.” These are when the conduct:
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was a manifestation of the child’s disability, or
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the direct result of the LEA’s failure to implement the child’s IEP.
If either condition is met, the student’s conduct must be determined to be a manifestation of his or her disability [§300.530(e)(2)-(3) and (f)]. In other words, the manifestation determination is “yes.”
But it matters which of the two conditions was the basis for the determination of “yes.”
“Yes,” for failure to implement the IEP. If the group determines that the child’s misconduct was the direct result of the LEA’s failure to implement the child’s IEP, the “LEA must take immediate steps to remedy those deficiencies.” As the Department explains, if such a determination is made:
The LEA has an affirmative obligation to take immediate steps to ensure that all services set forth in the child’s IEP are provided, consistent with the child’s needs as identified in the IEP. (71 Fed. Reg. 46721)
Authority of School Personnel for Imposing Discipline
Interim alternative placements:
There are certain behaviors for which a school system can change a student's placement to an "interim alternative educational setting" for up to 45 school days. This is so if the student carries a dangerous weapon to school or a school function, knowingly possesses, uses, sells or attempts to sell illegal drugs at school or at a school function, or has inflicted serious bodily injury upon another while at school or at a school function.
A school department can also try to convince a hearing officer in your state's special education due process system to order an interim alternative educational placement for up to 45 days by proving that maintaining the child in her current placement "is substantially likely to result in injury to the child or to others."
In either case, any alternative educational placement for up to 45 days under these provisions must provide FAPE. Accordingly it must be designed to "enable the child to continue to participate in the general curriculum, although in another setting, and to progress toward meeting the goals set out in the child's IEP."
The placement must also include services to address the behavior for which the student is being suspended in the first place. (A home tutoring program would not normally satisfy these requirements, though if the only alternative is a program for students with severe emotional / behavioral disabilities, sometimes a parent is faced with either accepting an inappropriate home-bound instruction program or placement in a volatile setting with an inappropriate peer group. If it is feasible to use the expedited hearing process, described below, it may be best to accept home tutoring while contesting the matter.)
The behavior of which your daughter has been accused does not fall into the categories that would allow the school system to move her to an alternative 45-day setting since there was apparently no dangerous weapon or drugs involved. While the school could try to convince a hearing officer that she represents a danger to herself or others, it would be unlikely to succeed. It is easy to think of steps the school system could take to "minimize the risk of harm in the child's current placement." Ordinary security measures in the halls, a peer mediation program, the assignment of an aide, and/or modifications to your daughter's IEP are some of the options that might be considered.
“Stay-Put” requirements:
IDEA 2004 maintains the “stay put” provisions of IDEA 1997. (Section 1415(j)) Under the “stay put” provision, the child can remain in the then-current educational placement and continue to receive the same services during proceedings to challenge the IEP, unless the parents and school agree otherwise. Although there is no “then-current educational placement” when there is a dispute between parent and school over the initial IEP, the fact that the parent and school agree on some part of the IEP creates an obligation for the school to implement those parts of the IEP to which the parent provided consent.
Disciplinary methods and Zero Tolerance rules - Weapons, Drugs, and Serious Bodily Injury
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School can develop policies that address student behavior.
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Policies cannot prohibit or punish behavior that does not adversely affect the delivery of education.
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Rules must be easily understood.
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Since mid-1990s-strong movement to address the issues of violence, drugs, and safety in schools. This led to policies known as zero tolerance policies (strict)
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Students with disabilities may be more impacted.
Parent Appeal Process Regarding Discipline
Both the LEA and the parent of the child with a disability have the right to request a due process hearing to appeal decisions taken during disciplinary procedures, although the reasons these parties may do so differ. Summarizing these:
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Parents may appeal decisions regarding placement of their children (under §§300.530 and 300.531);
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Parents may appeal decisions regarding manifestation determination under §300.530(e); and
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The LEA may appeal a decision to maintain the current placement of the child, if the LEA believes that maintaining the current placement of the child is substantially likely to result in injury to the child or others. [§300.532(a)]
Procedures for filing a due process complaint. A hearing is requested by filing a due process complaint. Some points to note about the process include:
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The public agency must inform the parent of any free or low-cost legal or other relevant services in the area. [§300.507(b)]
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The due process complaint must remain confidential. [§300.508(a)(1)]
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The party who files a due process complaint must forward a copy of the complaint to the SEA. [§300.508(a)(2)]
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The due process complaint must include specific information: name of the child; address of the child’s residence; name of the child’s school; description of the nature of the problem, including any related facts; and a proposed resolution of the problem (to the extent known and available to the filing party at the time). [§300.508(b)]
Expedited hearings. The parent and the LEA have the opportunity for an expedited due process hearing on the disciplinary matter about which they are disagreeing. The expedited hearing must comply with IDEA’s provisions for due process hearings (including hearing rights, such as a right to counsel, presenting evidence and cross-examining witnesses, and obtaining a written decision), although clearly the timelines for the hearing will be speeded up. The SEA or LEA is responsible for arranging the expedited due process hearing, which must occur within 20 school days of the date the complaint requesting the hearing is filed. The hearing officer must make a determination within 10 school days after the hearing. [§300.532(c)(2)]
Can due process be avoided? As discussed in the webpages on Resolving Disputes, IDEA strongly favors avoiding due process hearings, when possible, by resolving disputes through alternate, less adversarial and more cost-effective means. Mediation is specifically mentioned as an option when a due process hearing, including when an expedited due process hearing, is requested. Under IDEA, parties can choose to use mediation to resolve a dispute regardless of whether a due process hearing has been requested, and a parent can choose not to have a resolution meeting, if the parent and the school district agree instead to use mediation to resolve their differences.
In the context of an expedited due process hearing, parents and the LEA have available to them either the resolution process or the mediation process as vehicles for resolving their differences without having to conduct an expedited due process hearing. They also may choose to waive either option and proceed directly to an expedited due process hearing. [§300.532(c)(3)] Waiving the resolution meeting, however, requires that both parties agree in writing to do so.
How Student Discipline Under IDEA Impacts Special Education Teachers
Beginning on the 11th school day of a student’s disciplinary removal, and if a removal is a change of placement, the student must be provided a free appropriate public education. This will allow him or her to participate in the general education curriculum and still work toward the IEP goals. The district can exclude the student from the current placement without having to provide FAPE as long as the district does not provide services for students without disabilities who are removed for similar purposes. Once the 10th school day of removal occurs in the same school year, the district has to consult with at least one of the student’s teachers to determine the FAPE services that are needed to allow the student to continue participating in the general education curriculum. As a future special education teacher this could very well be my job. Special education teachers along with general education teachers, depending on the circumstances, are the ones that will be making most of the decisions on what services need to be provided to the child and to what extent. I will need to be aware of the children and their abilities to be able to provide them with the most appropriate services I can get for them. Even though these students are being disciplined, I will still have to set up ways that they can make measureable steps towards their IEP goals. Also, after the 10 school days of removal the parents and IEP Team members must review relevant information make decisions for the child’s placement and services at that time. I will be a part of those meetings and I will need to come ready to provide my input on the best ways possible to provide the students with FAPE. Also, I will need to provide, as appropriate, functional behavioral assessment and behavioral intervention services and modifications. This means we, as a team, need to give a functional behavioral assessment and develop a behavioral implementation plan or review and change existing plans if necessary.
Why Understanding Discipline Procedures is Important
It is extremely important to understand the discipline procedures as a future special education teacher because I will be a huge player in the process to aiding the students in a free appropriate public education during the time of their discipline if the duration exceeds a specific amount of time. If the school district or I did not know the procedures and we violated them, we could find ourselves in huge trouble. I need to be very aware of the procedures so that I can prepare myself to help develop FAPE services for students that are in need. I also need to be aware if the student needs a reevaluation of their IEP and/or functional behavioral assessments and behavioral intervention services. These are key components that may help a child get back on the right track. If they need something changed like that I need to be aware and observant enough to realize that and try to help them. I am going into this job trying to help children learn and I need to keep in mind that just because a child is getting disciplined does not mean that they should not be receiving FAPE and getting help to avoid having the same problem again.
Pitfalls to Avoid & Trouble Shooting, Handling Complaints
It is important to avoid making judgments. Every kid is entitled to FAPE and just because they are getting disciplined that does not change. We as teachers need to be on our toes when it comes to being proactive about helping the students to not get to the point where they are expelled or removed from schools and if that does happen we need to ensure the students that we will honor their rights to FAPE and help them obtain their education. I also think that handling complaints can be a very touchy subject. Parents often do not see eye to eye with teachers and administrators because they are there to protect their child in the best way they know how.
Positive Discipline Strategies Improve Safety and Outcomes for All Students
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It is important that the children know your expectations and consequences for them. I am going to outline a proactive classroom environment for you that is based off of a frog theme.
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Physical objects that display their progress- Each child has a cutout that is magnetic to the front board. The board also has four pouches on it. If the child has already received a verbal warning and does not follow the rules again they will have to go put their cutout in the warning pouch. If they make it to the second pouch, hop two, they will have note sent home with them for their parents to read about their behavior. If they make it to hop three the child must call their parents and tell them what happened. Hop four results in going to the principal’s office. If the student does not move their cutout for an entire week they are able to remove their cutout completely. The ideal goal is the have no cutouts on the board. This is a great proactive system to have the kids seeing their warnings and discipline in action. Making is real and relevant to the students by having something that they can physically move can be very eye opening for a lot of them.
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Captains and Co-Captains- This approach focuses on positive reinforcements, rewards. Each group has a captain and co-captains and at the end of each week the table with the most points gets to go and eat lunch with the teacher. This keeps the children motivated to be working hard all of the time so that they can reach the reward at the end of the week.
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Tickets for Good Behavior- Tickets are also a great way to use positive reinforcement strategies. At the afterschool program that I work at we use tickets to encourage the students to display good behavior and random acts of kindness. We have a super store at different times of the month and the kids can use their tickets to buy items. They love getting tickets and it is a great reminder for other kids that they need to behave when they see other kids getting the tickets. You don’t always have to discipline the kids that are acting out, if you simply give the kids that are acting properly the tickets the other kids understand they are not behaving well and change their attitudes.
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Warm Fuzzies- Warm Fuzzies are little figurines that each kid receives. The kids are able to give the warm fuzzies to anyone who has done something nice for someone else. It is a huge accomplishment when the children receive warm fuzzies from their classmates and they enjoy being acknowledged for their random acts of kindness. I like this idea a lot. I think it would be great to have the kids giving each other things like this to encourage them to be nice and respectful to others in comparison to always having the teacher be the determining one. This not only allows them to feel good about getting them but it also teaches kids to watch and learn what good behavior looks like in others.
