Discipline of Students with Disabilities

School and IEP team conducts a manifestation determination (see a detailed description below) and ascertains the behavior the student engaged in was not caused or related to the student’s disability.

Given that the Individuals With Disabilities Education Act considers long-term suspension a change in the student’s placement, school personnel have to ensure that the student:

• Continues to receive educational services that are designed to enable each student to continue to participate in the general education curriculum and progress toward meeting the goals set out in the IEP (although in another setting), and
• Receives (as appropriate), a functional behavioral assessment, and behavioral intervention services and modifications that are designed to address the behavior violation so that it does not recur.

These rules (as specified in this section) apply only to students whose problem behavior is not dangerous. Schools have to refer to the rules specified in the paragraph pertaining to special circumstances below in cases where the student’s behavior is dangerous.

• Manifestation Determination: Within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct, the LEA, the parent, and relevant members of the student’s IEP Team (as determined by the parent and the LEA) must:

• Review all relevant information in the student’s file, including the student’s IEP, any teacher observations, and any relevant information provided by the parents to determine—

• If the conduct in question was caused by, or had a direct and substantial relationship to, the student’s disability; or
• If the conduct in question was the direct result of the LEA’s failure to implement the IEP; or
• Whether the school or LEA knew or was aware that the student has a disability (for students who are not yet eligible).

• The conduct must be determined to be a manifestation of the child’s disability if the LEA, the parent, and relevant members of the child’s IEP team determine that any of the conditions specified above are met.

• If the LEA, the parent, and relevant members of the child’s IEP team determine the condition described in paragraph (1)(ii) of this section was met, the LEA must take immediate steps to remedy those deficiencies.

If the IEP team determines that the student’s behavior:

• Was caused by, or had a direct and substantial relationship to the child’s disability; or
• Was the direct result of the LEA’s failure to implement the IEP; and/or that
• The school or LEA was aware the student is a student with a disability;

the behavior in question was a manifestation of the student’s disability. In such a case, the student cannot be removed from school for disciplinary reasons. Instead, the school and IEP team must:

• Either—
• Conduct a functional behavioral assessment (unless the LEA had conducted a functional behavioral assessment before the behavior that resulted in the change of placement occurred) and implement a behavioral intervention plan for the student; or
• If a behavioral intervention plan already has been developed, review the behavioral intervention plan, and modify it, as necessary, to address the behavior; and
• Except as provided in special circumstances as described in paragraph below, return the student to the placement from which the child was removed, unless the parent and the LEA agree to a change of placement as part of the modification of the behavioral intervention plan.
• Special Circumstances: School personnel may remove a student to an interim alternative educational setting for not more than 45 school days without regard to whether the behavior is determined to be a manifestation of the student’s disability, if the student:
• Carries a weapon to or possesses a weapon at school, on school premises, or to or at a school function under the jurisdiction of an SEA or an LEA;
• Knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, while at school, on school premises, or at a school function under the jurisdiction of an SEA or an LEA; or
• Has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of an SEA or an LEA.

 

During the 45 school day removal, the IEP team must meet and go through the manifestation determination procedures described in paragraph (C) above.

**Note: On the date on which the decision is made to remove a student with a disability from his or her current placement  for more than 10 cumulative or consecutive school days in a year (i.e., change the student’s placement), the LEA must notify the parents of that decision and provide them with their procedural safeguards notice.

The terms:

• Controlled substance means a drug or other substance identified under the United States schedules I, II, III, IV, or V code (21 U.S.C. 812(c)).
• Illegal drug means a controlled substance; but does not include a controlled substance that is legally possessed or used under the supervision of a licensed health-care professional or that is legally possessed or used under any other authority under that Act or under any other provision of federal law.
• Serious bodily injury means bodily injury that 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.
• Weapon means a weapon, device, instrument, material, or substance (animate or inanimate) that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2½ inches in length.