Students with disabilities—especially ADHD, autism, or serious emotional disturbances—may be particularly vulnerable to feeling frustrated or overwhelmed with schoolwork or the classroom environment. That stress—coupled with limitations related to their disability—can easily lead to disruptive behavior and its aftermath. According to data collected by the federal government, special ed students are more than twice as likely to be suspended or expelled from school than their nondisabled peers.
Of course, teachers need to be able to control the classroom and deal with misconduct by any student, with or without disabilities. But all students have certain rights in school disciplinary proceedings under federal and state law. And children who are eligible for special education under the federal Individuals with Disabilities Education Act (IDEA) are entitled to another layer of legal protections. These rules are designed to make sure that when there’s a strong connection between disabilities and misconduct, students get suitable behavioral support and continue to receive the services they need to make progress in school.
IDEA and the Right to Stay Put
One of the central requirements in the IDEA is that public schools can’t move special ed kids from their current “placement”—the specific classroom or other setting call for in a student’s individualized education program (IEP)—unless the parents agree or the school follows certain procedures. This “stay-put” right applies during any proceedings to resolve disagreements between parents and the school about the IEP or to remove a child from the placement for misconduct. Long-term suspension (more than 10 school days) or expulsion counts as a removal. So does a series of short-term suspensions if they:
- total more than 10 days in the same academic year
- involve similar behavior, and
- show other evidence of a “pattern,” such as coming soon after each other.
(20 U.S.C. § 1415(j), 34 C.F.R. §300.536.)
No Special Treatment for Short-Term Suspensions
Schools may treat misbehaving special ed students just like their nondisabled peers when they’re removed from their regular classrooms for up to 10 days. This type of short-term disciplinary action includes:
- out-of-school suspension
- in-school suspension, or
- placement in what’s called an “interim alternative educational setting," such as a special school for students with learning or emotional disabilities.
(20 U.S.C. § 1415(k)(1)(B), 34 C.F.R. §300.530(b)).
Getting to the Reasons for Misconduct
Whenever school discipline could lead to what the law considers a placement change for a special ed student—including long-term suspension or expulsion—the parent and the rest of the IEP team must meet to examine the circumstances. The school will then take different actions depending on the results of this process (known as a “manifestation determination review”):
- If the behavior resulted from the school district’s failure to meet its requirements in the child’s IEP, it must take immediate steps to fix the problem.
- If the misconduct was a “manifestation” of the child’s disability—meaning there was a “direct and substantial relationship” between the two—the school must carry out a formal assessment and either come up with a plan to address the problems or make changes to the child’s existing plan. The assessment and behavioral intervention plans are designed to understand why special ed students are misbehaving and give them the support they need to develop more effective coping mechanisms.
- If the rule-breaking wasn’t directly related to the disability, then the school can carry out its discipline just as it would for nondisabled students—with one important difference. During the long-term suspension or expulsion, the school must provide special ed students with services that will allow them to continue with their education and meet the goals in their IEPs.
(20 U.S.C. § 1415(k), 34 C.F.R. § 300.530(b)-(f).)
Exceptions for Dangerous Misconduct
Under certain circumstances, schools can move special ed students to an alternative setting for up to 45 days without going through a manifestation review. This exception applies when a child’s misconduct at school or a school function includes:
- using, possessing, selling, or trying to buy illegal drugs
- having a dangerous weapon, or
- seriously injuring someone.
Even though schools don’t have to get parental permission for this change in placement, parents are entitled to participate along with the rest of the IEP team in selecting the particular alternative setting. (20 U.S.C. § 1415(k)(1)(G), (k)(2); 34 C.F.R. §§ 300.530(g), 300.531.)
State Laws on Other Methods of Disciplining Special Ed Students
Students with disabilities aren’t only at a higher risk of suspension compared to their nondisabled peers. They’re also more likely to be physically restrained (with their ability to move restricted) or put in seclusion (locked alone in a room). Some states have passed laws restricting the use of these practices on children with disabilities. And in a few states, schools aren’t allowed to control special ed kids with “aversion” techniques such as water or air blasts, unpleasant odors or tastes, or withholding food.
Talking With a Lawyer
If you have a child with disabilities who’s facing serious discipline at school, consider consulting with a special education lawyer. The rules in IDEA for disciplining special ed students are particularly complicated and difficult to follow. Naturally, you want to make sure your child receives all the behavioral and educational support that the law allows. And of course you want to avoid the serious consequences that can result from long-term suspension—or worse, expulsion. An attorney experienced in this area should be able to explain all the ins-and-outs of the federal, state, and local laws and procedures that apply to your situation. A special ed attorney may also advise you or even represent you during IEP meetings, manifestation reviews, and appeals of the school’s disciplinary decisions.