GREAT SCHOOLS: School Discipline: The Rights Of Students With IEPs and 504 Plans

By Press release submission

Oct 11, 2019

Great Schools issued the following announcement on Oct. 8.

Some kids have learning and attention issues that cause them to misbehave. If they have an IEP or a 504 plan, what happens if they break a school rule? Can they be disciplined? And if so, how? Read on for answers.

School discipline basics

All students, including students with IEPs and 504 plans, must follow school rules. State and federal law require public schools to maintain a safe, orderly learning environment. That’s why every public school has a code of conduct with rules of behavior.

The code might include rules like no obscene language, no disrupting classes and no smoking. It may have a dress code, academic rules and attendance requirements. The code should also spell out the consequences for breaking rules. You can find the code of conduct for your child’s school on its website. The school may also send a copy home at the start of the school year, or you can ask the principal for it.

If a student breaks a rule, the school has the authority to discipline her. School discipline actions can range from minor to very serious, and from the traditional to the more progressive.

Here are some examples of school discipline:

Parent contact: Calling a child’s parents or sending a note home
Conference: Having the child meet with a principal or teacher, sometimes joined by his parents
Schoolwork: Requiring the child to do schoolwork, like writing the same sentence over and over on the chalkboard
Counseling: Pairing the child with a professional to talk about her misbehavior
Detention: Placing a child in a supervised area during or after school
Suspension: Sending a child home from school for one or more days
Expulsion: Kicking a child out of school permanently
Restraint: Preventing a child from moving, either physically or with a mechanical device
Seclusion: Placing a child alone in a locked room or separate area of the school and not letting her leave
Restorative justice: Having a child make amends through an apology, peer mediation, or other action

When it comes to school discipline, all students have some basic rights:

Students (and their parents) have the right to know beforehand what the rules are.
If a school accuses a student of breaking a rule, the student has a right to challenge the accusation and prove her innocence. This may happen informally at a meeting with the principal, or more formally at a superintendent’s hearing.
A school can’t have rules that violate a child’s constitutional rights. For instance, a school can’t discriminate against a child due to race or religion.

Discipline protections for kids with IEPs and 504 plans

In addition to the basic rights all students have with school discipline, the Individuals with Disabilities Education Act (IDEA) provides special protections to students with IEPs. These same rights apply to kids with 504 plans.

If your child doesn’t have an IEP or a 504 plan, IDEA protections may still apply if:

You’ve requested an evaluation of your child from the school.
The school’s administration had a reason to know your child has a disability.

Learn more about your child’s rights if she doesn’t have an IEP or a 504 plan.

The protections for students with IEPs and 504 plans aren’t an excuse for breaking school rules. They help schools and parents understand the cause of misbehavior. And they require schools to help reduce misbehavior and prevent it from happening again.

The school discipline rules in IDEA are very complicated. So if your child is facing school discipline, it can help to get the advice of a special education advocate or attorney.

The rules are easier to understand when you consider the purpose of IDEA: to provide the educational services kids with disabilities need to learn. So protections apply in two broad situations:

When there’s a change in placement that prevents a child from receiving services—for example, being removed from school.
When a child’s misbehavior is caused by her disability. In this case there would be a process called “manifestation determination.”

Change in placement

When a child is removed from school as part of discipline, she’s unable to receive the services in her IEP or 504 plan. So after a certain amount of time, IDEA requires those services to be provided wherever the child is. This is sometimes known as the “10 Day Rule.”

If a child is removed for 10 school days or less, she’s treated just like other students. For example, if a child is sent home for seven days because of fighting, typical school policies for suspended students apply.

Some states require schools to provide home instruction for kids who are suspended. That includes IEP and 504 plan services. But other states don’t. If your child is removed from school, you can call an IEP meeting to discuss concerns you may have about services.

Once a child reaches more than a total of 10 school days of removal, it’s considered a “change in placement” under IDEA. (It doesn’t have to be 10 days in a row — just 10 total days.)

It’s not always necessary to reach 10 days. If there’s a pattern of removing a child from school, that could be a “change of placement.” An example of a pattern would be if the school suspends a child five times for the same misbehavior, each time for only one day.

When there’s a “change in placement,” IDEA provides increased protections:

The school must immediately notify you in writing of the change and inform you about your legal rights and protections (called procedural safeguards).
If it’s not doing so already, the school must provide the educational services in your child’s IEP or 504 plan. For example, if a child is moved to a special detention center, starting on the 11th day, IDEA says she must receive her educational services in this new “placement.”
The school must conduct a special review called a “manifestation determination.”

Manifestation determination

A manifestation determination is when the IEP team looks at whether a child’s disability, which can include learning and attention issues, causes or directly contributes to her misbehavior. In other words, is her behavior a “manifestation,” or symptom, of her learning and attention issues? If so, more protections apply.

To answer this question, the team must look at all relevant information. This includes the current misbehavior, the child’s IEP file and any observations of her.

During the process, the IEP team must also check if aspects of the IEP weren’t followed. Maybe the student was supposed to get weekly counseling services, but the school kept rescheduling and, as a result, she acted out. Or perhaps the school didn’t follow behavior accommodations like letting a child stand during class or leave class to visit a “cool-off” room.

There are three possible results of a manifestation determination:

Yes, the misbehavior was caused by the child’s disability: In this case, the school and IEP team must immediately try to figure out when the misbehavior happens and why. This is called a functional behavioral assessment (FBA). Then the team must develop a behavior intervention plan (BIP) to minimize the misbehavior. The BIP must be put into effect immediately. If the student already has a BIP, then the team needs to review and change the plan to address the misbehavior.

The student must also be allowed to return to school, unless she was removed because she brought a weapon to school, had illegal drugs at school, or caused serious bodily injury to another person at school. In these cases, the school can continue to keep her out of school for up to 45 school days, but must still provide services.
Yes, the misbehavior happened because some aspect of the IEP wasn’t followed: In this case, the school must immediately fix the situation and implement the IEP (or 504 plan) properly. The student can return to school. Again, there’s an exception if she was removed because of a weapon or illegal drugs, or for having caused serious bodily injury to someone. If these apply, she can be kept out of school for 45 school days.
No, the behavior wasn’t caused by the child’s disability: In this case, the school can treat the student the same as it treats students without an IEP or 504 plan. It may keep her removed from school. However, the school must continue to provide services because of the “change in placement.”

The controversial practices of restraint and seclusion

Students with disabilities are more likely to be restrained and secluded at school. These discipline practices, like holding kids down or putting them in locked rooms, are very controversial.

Most states don’t have laws banning restraint and seclusion. That means public schools are often free to decide when and how to use these practices. However, for kids with IEPs and 504 plans, there are limits.

Schools can’t restrain or seclude a child with an IEP or a 504 plan if they wouldn’t do the same to other kids. For example, if two kids misbehave in the same way, the school can’t restrain one child just because she has ADHD.
Schools also can’t have a policy on restraint or seclusion that has a bigger, more negative impact on kids with IEPs and 504 plans than it has on other kids.
Schools can’t restrain or seclude a child in a way that would deny her a free and appropriate public education (FAPE). Repeatedly placing a child in a room alone, for instance, may limit her learning.

It’s important to review your child’s IEP or 504 plan to make sure there’s nothing in it that permits restraint or seclusion. If these methods are used with your child, you can call an IEP meeting to raise your concerns. You can also file a complaint with state or federal officials. And if you ever see any evidence of child abuse, you have the right to call the police.

For more information on restraint and seclusion, read this guidance from the U.S. Department of Education.

What to do if you disagree with a disciplinary decision

If you disagree with a school’s decision to discipline your child who has an IEP or a 504 plan, you can appeal it. Typically, you appeal to the school board.

You can also challenge a manifestation determination or placement decision. If time is crucial, you can ask for an expedited hearing. This can take place sooner than a hearing usually would.

During the dispute process, your child will generally remain where she is—suspended at home, or in some other setting. She’ll stay there for up to 45 school days or until the appeal is decided (unless you and school agree otherwise). This is called the “stay put” right.

If your child has behavioral issues, it’s important to be proactive before school discipline becomes an issue. Consider asking the IEP team to include counseling or other emotional supports in her IEP. Get tips on how to talk to your child’s teacher about behavior problems. And read about positive behavioral interventions and supports (PBIS), an approach to school discipline focused on prevention, not punishment.

Original source can be found here.