IDEA 2004 Close Up: Disciplining Students With Disabilities

By Candace Cortiella, The Advocacy Institute

The Individuals with Disabilities Education Act (IDEA 2004) - and the federal regulations that provide guidance to states on how to implement the Act - contain important changes to the way schools can discipline students with disabilities. Understanding these changes is an important part of being your child's best advocate.

Like all students, those with disabilities can be suspended or expelled for violating the school's code of conduct. However, IDEA provides some additional procedures that schools must follow when disciplining students with disabilities. These procedures were put into IDEA to prevent schools from suspending or expelling students without considering the effects of the child's disability. These procedures are different depending on:

• the length and type of disciplinary action the school proposes to take;
• the nature of the conduct that led to the disciplinary action; and
• whether the conduct is found to be connected to the student's disability.

Know Your Child's Code of Student Conduct

Schools have a responsibility to make sure that all students, including those receiving special education, are familiar with the school's code of student conduct. Parents also have a responsibility to understand their child's school code of conduct and help their child understand the expectations and consequences involved with violating the code. Your child's Individualized Education Program (IEP) team should determine any specialized help and instruction the child may need to understand the code and consistently demonstrate the appropriate classroom and school behaviors, including a functional behavioral assessment and a behavior intervention plan.

Schools Can Make Case-by-Case Determinations

IDEA 2004 provides school personnel with the authority to consider any unique circumstances on a case-by-case basis when making a determination to discipline a student with a disability. This provision provides flexibility for school personnel who are often operating within a district's "zero-tolerance" policy. A zero-tolerance policy usually requires school personnel to follow a suspension or expulsion policy for any student who violates the code of conduct, regardless of the circumstances. Now, school personnel may choose not to suspend a student with a disability if the unique circumstances lead school personnel to decide that suspension is not appropriate. Factors such as a student's disciplinary history, ability to understand consequences, expression of remorse and supports provided to the student prior to the violation of a school code of conduct could be unique circumstances considered by school personnel. In all cases, the disciplinary action considered for students with disabilities must be the same as for students without disabilities. In other words, school personnel may not increase a student's suspension because of the student's disability.

Disciplinary action generally involves removing students from their current educational placement and placing them in some other setting, such as:

• In-school suspension
• Out-of-school suspension
• An interim alternative educational setting (IAES)

Whenever school personnel decide to discipline a student with a disability by removing the student from the current educational placement, the school must notify the parents on the same day the decision is made and provide the parents with a written copy of the district's Procedural Safeguards Notice.