E.  School Discipline Under IDEA

McNaught, supra note 16 at 17.
Due process rights regarding school discipline exist for all student. Discipline under IDEA and Section 504 is much more complex, and attorneys should be prepared to advocate for a student’s due process rights.



Randy Chapman, The Everyday Guide to Special Education Law, 59 (The Legal Center for People with Disabilities and Older People 2008)
Strict timelines also exist for this process. Filing a complaint with the CDE is best for clear violations of IDEA rather than disagreements over services.



20 U.S.C. § 1415(k)(1)(A) (2005); 34 C.F.R. § 300.530(a)
1. When IDEA Applies to Discipline

When a child with a disability violates a code of student conduct, IDEA provides a special framework for discipline. “School personnel may consider any unique circumstances on a case-by-case basis when determining whether to order a change in placement for a child with a disability who violates a code of student conduct.”

Wright, supra note 1 at 118.
Congress added this language to clarify “that school officials may use discretion and consider each individual situation carefully, and [rebut] arguments by administrators who refuse to exercise discretion.” 

Chapman, supra note 15 at 64-65.
This may “encourage flexibility, rather than a zero tolerance approach, to disciplining students with disabilities.” 

McNaught, supra note 16 at 93.
The American Bar Association opposes “zero tolerance” policies in principle.

20 U.S.C. § 1415(k)(5).
IDEA procedures and protections apply to a child who has a disability and is eligible for special education and related services. In addition, a child who has not yet been determined eligible, and has violated a code of student conduct, still may assert these protections if the local educational agency had knowledge that the child has a disability.











20 U.S.C. § 1415(k)(5)(B);
34 C.F.R. § 300.534(b).
A local educational agency shall be deemed to have knowledge that a child has a disability if, before the behavior that precipitated the disciplinary action:
  • a parent has expressed concern in writing to a teacher or the administration that the child is in need of special education and related services;
  • a parent has requested an evaluation of the child under IDEA (with some exceptions);
  • a teacher or other personnel has expressed concerns about a pattern of behavior by the child to supervisory personnel of the agency.
20 U.S.C. § 1415(k)(5)(C);
34 C.F.R. § 300.534(c).
However, these exceptions do not apply if a parent has not allowed an evaluation of the child, or has refused services.

20 U.S.C. § 1415(k)(5)(D);
Wright, supra note 1 at 122;
34 C.F.R. § 300.534(d).
Even if the local educational agency did not have knowledge that the child has a disability, an evaluation may be requested when the child is subject to disciplinary measures, and “shall be conducted in an expedited manner.” If the child is determined to have a disability, that child receives all rights and protections under IDEA.

20 U.S.C. § 1415(j).
If parents disagree with decisions regarding placement in the discipline context, they may request a due process hearing. With the exception of certain dangerous behavior, the child has a right to “stay put” in the current educational placement during this process.



Tulman, supra note 39 at 4-8.
2.  Disciplining a Child With a Disability/Manifestation Determination

School investigation of misconduct also must accommodate the disabilities of the student.  During questioning, for example, provision must be made to accommodate disabilities such as deafness or cognitive impairment.

20 U.S.C. § 1415(k)(1)(B);
34 C.F.R. § 300.530(b)(1).
School personnel may suspend a child with a disability who violates a code of student conduct, or remove the child from the current placement to an appropriate, interim, alternative educational setting for not more than ten consecutive school days. 

20 U.S.C. § 1415(k)(1)(C) & (E).
However, if the disciplinary consequences will exceed ten school days cumulatively, the school district must determine whether the behavior was a manifestation of the child’s disability.

Tulman, supra note 39 at 4-15.
Note that if there is doubt as to whether the alleged misconduct occurred, it may be necessary to have a pre-hearing to determine whether the child committed the act, before holding a manifestation determination as to whether the conduct was a  manifestation of the disability. A student has a constitutional right to due process in school discipline.

 20 U.S.C. § 1415(k)(1)(E)(i);
CDE State Complaint Decision 2010:516.
The manifestation determination is carried out by the local educational agency (LEA), the parent, and relevant members of the IEP team,  as determined by the parent and the LEA. Parents are entitled to proper notice of the manifestation determination, which notice must be sufficient to allow them to exercise their right to include relevant members of the IEP team (including persons with special knowledge of the child).



Email from Brad Bittan, Juvenile Law Attorney (May 22, 2008)(on file with author).
Effectively, it is an IEP meeting that will determine the manifestation determination issue.

20 U.S.C. § 1415(k)(1)(E)(i).
The team reviews all relevant information in the student’s file, including the IEP and information from teachers and parents. 

20 U.S.C. § 1415(k)(1)(E)(i)(I);
34 C.F.R. § 300.530(e).
It determines whether “the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability . . . .”

20 U.S.C. § 1415(k)(1)(E)(i)(II).
It also determines whether “the conduct in question was the direct result of the local educational agency’s failure to implement the IEP.” 

20 U.S.C. § 1415(k)(1)(E)(ii).
If either of these is the case, the conduct is a manifestation of the child’s disability.

34 C.F.R. § 300.530(e)(3).
If the conduct in question was the direct result of the LEA’s failure to implement the IEP, the agency must take immediate steps to remedy the deficiencies.

Chapman, supra note 15 at  63.
If the behavior was not a manifestation of the disability, the LEA may discipline in the same manner as it would discipline a student without a disability.

Wright, supra note 1 at 119.
To prepare for a manifestation determination, a parent or child advocate could obtain a comprehensive psycho-educational evaluation of the child by an expert in the disability (for example, autism or bipolar disorder). The evaluator should analyze the relationship, if any, between the child’s disability and the behavior and submit a detailed report that describes the disability, the basis for determining the behavior was a manifestation of the disability, and recommendations for an appropriate program. The evaluator may attend the manifestation determination hearing.

Unique Challenges, Hopeful Responses:  A Handbook for Professionals Working With Youth With Disabilities in the Juvenile Justice System 52 (Pacer Center, Minneapolis, MN  1997).
In determining whether inappropriate behaviors are a manifestation of the disability, the IEP team should consider any medical, psychological, or psychiatric reports available. If needed at this stage, a functional behavioral assessment can provide more information. This assessment collects data on the behavior such as the setting, timing, environment, reinforcement, and interventions attempted or not attempted to answer the question of why the behavior occurred. 

Stephen Starin, Functional Behavioral Assessments:  What, Why, When, Where, and Who?
Available here
( viewed Oct 15, 2010 )
A functional behavioral assessment should include interviews and rating scales. It should be performed by an expert, who directly observes the child’s behavior in his or her natural environment, and the events that immediately precede and follow the problem behavior.









20 U.S.C. § 1415(k)(1)(F)(i) through (iii);
34 C.F.R. § 300.530(f).
If the behavior was a manifestation of the disability, the IEP team shall:
  • conduct a functional behavioral assessment (if not previously performed);
  • implement a behavioral intervention plan (BIP);
  • review any current behavioral intervention plan and modify it as needed to address the behavior; and
  • return the child to the previous placement, unless special circumstances exist, or unless the parents and local educational agency agree to a change of placement.




18 U.S.C. § 930(g)(2) (2008)
18 U.S.C. § 1365(h)(3) (2002).







20 U.S.C. § 1415(k)(1)(G) and (k)(7);
34 C.F.R. § 300.530(g) & (i).
These special circumstances, which prevent the return of the child to the previous placement, exist when the child, while at school, on school premises, or at a school function:
  • carried or possessed a dangerous weapon, capable of causing death or serious bodily injury; (bodily injury means “bodily injury which involves--a substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty. . .”).
  • knowingly possessed or used illegal drugs (a controlled substance that is not legally possessed), or sold or solicited the sale of a controlled substance at school; or
  • inflicted serious bodily injury on another person.
20 U.S.C. § 1415(k)(1)(G).
Under these circumstances, even if the behavior was a manifestation of the disability, the student may be removed to an interim, alternative educational setting (IAES) for not more than forty-five days.

20 U.S.C. § 1415(k)(2);
34 C.F.R. § 300.531.
The setting is determined by the IEP team.





20 U.S.C. § 1415(k)(1)(D)(i);
34 C.F.R. § 300.530(b)(2) and (d).



20 U.S.C. § 1415(k)(1)(D)(ii);
34 C.F.R. § 300.530(d)(1)(ii).
Whether or not the behavior was a manifestation of the child’s disability, the following must occur:

If the child has been removed from the current placement for more than ten school days in the same school year, during any further removal, the child must continue to receive educational services and progress towards meeting the goals set out in the IEP.  (Note:  the ten days need not be consecutive.)

The child shall receive, as appropriate, “a functional behavioral assessment, behavioral intervention services and modifications, that are designed to address the behavior violation so that it does not recur.”



20 U.S.C. § 1415(k)(3)(A).
3.  Appeal of a Manifestation Determination

A parent may request a hearing to appeal either the result of the manifestation determination or the decision regarding placement in an interim alternative educational setting (IAES). 

20 U.S.C. § 1415(k)(3)(A).
The school also can request a hearing if it believes “maintaining the current placement of the child is substantially likely to result in injury to the child or to others.” 

20 U.S.C. § 1415(k)(4);
34 C.F.R. § 300.533
During the appeal, the child remains in the IAES. 

20 U.S.C. § 1415(k)(4).
The hearing process is expedited, and must occur within twenty school days of the date the hearing is requested, with a determination within ten school days after the hearing. 

Rule 6.02(7).
More details on due process hearings are found in the ECEA Rules.



Chapman, supra note 15 at 63.
4.  Change in Placement

If the student is removed for more than ten days, regardless of whether the misbehavior was a manifestation of the disability and whether the student is being disciplined in the same manner as a student without disabilities, the extended removal is a change in placement.  In this situation, the school must continue providing educational services consistent with the IEP.























Herrick and Ward, supra note 65 at 5-3. 
5.  Preventing Discipline Problems

Children with disabilities often need proactive attention to prevent discipline problems from developing because of their frustration or inadequate social skills. For many children with disabilities, it is unrealistic that the child “work it out” or “tough it out.” The child may not understand the situation or how to deal with it. Moreover, children with disabilities often are a target for bullying, then are not uncommonly blamed for “inappropriate responses.” The following steps may be helpful:
  • make sure the child understands the school rules and which rules are to be taken seriously (see zero tolerance policies);
  • monitor the child’s progress and intervene when issues occur that cause the child anxiety, such as bullying or other incidents;
  • obtain assistance from an anti-bullying program, such as through a community agency, may be helpful;
  • if not a breach of confidentiality, notify the school when something particularly upsetting has happened in the child’s life;
  • develop good ongoing relationships with school personnel;
  • connect the child with an ongoing outside mentor;
  • if there is a pattern of misbehavior, request an evaluation for a disability;  and
  • try to identify a teacher or counselor the child can talk to regularly. 
A child who believes there is a way to solve problems is less likely to melt down or explode.














Id. at 5-12.
6.  Behavioral Intervention Plan (BIP)

A behavioral intervention plan (BIP) is designed to manage a student’s behavior and prevent the circumstances that precipitated the behavior. It should include:
  • ways to reduce stress, such as finding a quiet place to go when the student is overwhelmed, with a prearranged signal that will allow the student to leave the classroom or other stressful setting;
  • ways that teachers can recognize a problem is developing (for example, physical signs such as shaking or twitching, bright red ears, raised voice);
  • positive reinforcement for good behaviors;  and
  • education for the student on how to manage his or her own behavior by recognizing escalating stress and learning strategies to cope.
Sometimes, when the student knows a highly structured plan exists, including positive steps that the student can control, the incidence of stress-induced inappropriate behavior is drastically reduced. If support staff provides regular training in problem solving and conflict management each time a conflict situation arises, the student not only internalizes the positive strategies, but approaches life with growing hope that problems may have a solution. Hope is a powerful motivator for positive behavior.



Chapman, supra note 15 at 83.
7. School Discipline Under Section 504

Discipline under Section 504 is similar to but not as closely regulated as under IDEA. Schools may not punish students for misconduct related to their disability. 

Id. at 83.
Excluding a student from school for more than ten consecutive school days, or a series of suspensions that totals more than ten days in a school year, is likely to be a significant change in placement that requires a re-evaluation and a manifestation determination meeting. 

Id. at 83.
If the misconduct is related to the disability, the student may not be continually suspended or expelled, with certain exceptions for emergencies. 

Tulman, supra note 39 at 4-22.
The student is protected whether or not the school has identified the disability.

Id. at  4-21.
Parents may challenge an evaluation by requesting an impartial due process hearing. However, unlike under IDEA, there is no “stay put” provision while waiting for a due process hearing.

Wright, supra note 1 at 293.
Under Section 504 alone, when IDEA does not apply, if a child’s misbehavior is not a manifestation of a disability, the child can be expelled, and the school is not required to continue providing FAPE.