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IDEA 2004 Close Up: Disciplining Students With Disabilities

Page 5 of 5

By Candace Cortiella, The Advocacy Institute

Students Not Yet Eligible for IDEA

Under certain circumstances, the protections available to a student with a disability who is already eligible for special education services may also be available to a student who does not have an IEP in effect. These circumstances may apply to any student:

  • If the child's parent had expressed concern in writing to school personnel, including the teacher, that their child may be in need of special education prior to the behavior that resulted in the disciplinary action
  • If the child's parent had requested an evaluation, preferably in writing, as provided for by IDEA
  • If the child's teacher or other school personnel had expressed concerns about a pattern of behavior that might call for a referral for evaluation, such concerns would need to have been made directly to supervisory personnel at the school building or school district level. For example, a teacher expressing his or her concerns to a parent would not be considered an adequate basis of knowledge.

Certain exceptions apply to the above circumstances. They include:

  • If the child's parent had not allowed an evaluation of the child or had refused special education services that had been offered as required by IDEA
  • If the child had been evaluated as required by IDEA and was not found eligible for special education

If a request is made to evaluate a student during the time period of the disciplinary action, the school must complete the evaluation as quickly as possible. During the evaluation, the student remains in the interim alternative educational setting.

Special Note:

Provisions in IDEA 2004 allow schools to provide early intervening services to students who are considered "at risk." At-risk students are those who show a need for additional academic or behavioral support to succeed in general education, but who are not identified as needing special education. In addition, IDEA 2004 allows schools to use a "response-to-intervention" (RTI) process as part of its procedures for identifying students as having specific learning disabilities and needing special education. A child in either the "at risk" or "RTI" circumstances may not be considered to possibly need special education services unless at least one of the first three bulleted conditions in the section above has been met.

IDEA's provisions regarding the discipline of students with disabilities are complex and often confusing. If your child becomes the focus of a disciplinary action, you should seek information and guidance from expert resources such as your state's Parent Training and Information Center (PTIC).

Candace Cortiella's work as Director of the nonprofit The Advocacy Institute focuses on improving the lives of people with learning disabilities, through public policy and other initiatives. The mother of a young adult with learning disabilities, she lives in the Washington, D.C., area.

Comments from readers

"I need help my child is not thriving in his school he has learning disability some speech impediment and he is ADHD I am willing to pay for his education using his supplemental income to insure that Jeremiah is becoming all he can be. I am not pleased with the behavioral program in Lancaster TX that my child has become confined to. It is not working for us and I am unable to move him to anyother school in Lancaster TX therefore I am searching for alternatives there are pictures in my phone where the teacher scratched his neck up trying to hold him with her nails, he has had a busted lip trying to gain entry into the school, has stated that a teacher hit him, he is often times given extra medicine after I have informed them he has been medicated. he has a cut just centimeters from his eye where his teacher said the point of another students scissors was used by J to cut himself the list goes on.. HELP ME I AM ASKING FOR HELP."
"I think alot of reasons why children who have behavioral issues is because of parents who haven't interllectually and emotionally dealt with the fact that they are disabled.I wouldn't be married today If my image of being a perfect father and husband superceeded the desire to serve my wife and son imperfections and all.Divorce can also be a major reason why a child behaves badly especially at school.There is also a sibling rivalry component where the sibling feels that their place on the family tree is undermined.That sibling can communicate consciously or sub consciously hey you made mom and dad breakup and you upstaged my place in mom and dads eyes.This can render a child feeling out of place and feeling at the very least under valued.The emotional stability of a child whether or not their disabled or the parent is there is no place for ego/pride/resentment/guilt if a parent is going to raise their children effectively."
"my son has an I.E.P. and has behavioral issues.Recently a staff memeber on her way to school said she saw my son and 4 other kids smoking pot.(they were smoking cigs.)and they werent on school grounds. She went into the school and reported it to the vice principal. He called them all into his office and searched them all, he found nothing so he then searched their lockers and ofcourse they found a small roach in my sons locker only. He was the only one suspended and he was arrested.The vice principal even told me on the phone that he did not look high or smell like weed, but this school has been trying to get him out of there since day one.Now they are trying to expel him from school. he would like to go to an alternative school to get his diploma and wants to go to college after. He is not a bad kid, he made a mistake and shouldnt have to pay for it for the rest of his life. Do they have to provide him with an education or not????? HELP!!"