Discipline procedures for special education Lawyer Manual

Disciplining special education students

All special education students should have an IEP, which should be implemented to prevent discipline problems. If discipline issues continue to arise, convene a meeting to amend the IEP to prevent problems in the future, including conducting a Functional Behavioral Analysis (FBA) and completing/updating a Behavior Intervention Plan (BIP). If despite the IEP, discipline issues continue to arise, there are guidelines and protections for special education students concerning discipline. 34 C.F.R. §300.530; 23 Ill. Admin. Code §226.400.

Change of placement

Disciplinary actions which remove a student with disabilities for more than 10 consecutive school days or 10 days in a school year for behavior that “constitutes a pattern” are considered a change in the student’s IEP placement. See 34 CFR §300.536. Before a school can enact a change of placement, it must conduct a Manifestation Determination Review (“MDR”). Whether the school can proceed with the change of placement or disciplinary removal rests on the decision reached by the Team at the MDR. See 34 C.F.R. §300.530.

Manifestation Determination Review (“MDR”)

Within 10 days of any decision to change the placement of a special education student, the district must hold an MDR. At the MDR, the school, parents, and IEP team review the relevant information and determine:

• If the conduct was caused by or had a direct relationship with the student’s disability;
• If the conduct was the direct result of the school’s failure to implement the student’s IEP. 34 C.F.R. §300.530(e); and
• If either of those is correct, the behavior is deemed to be a manifestation of the student’s disability. In determining if the conduct was caused by the student’s disability, the Team is not limited to looking at what the student’s eligibility is based upon. The Team should consider all relevant information, including any other diagnoses the child may have, or previously unidentified disabilities. Letter to Yudien, 39 IDELR 270 (OSEP 2003).

If the behavior is determined to be a manifestation

If the behavior is determined to be a manifestation of the student’s disability or the school did not correctly implement his IEP, the school cannot proceed with the disciplinary action and must return the student to the placement from which they were removed. The school should instead conduct a Functional Behavioral Assessment (“FBA”) if it has not done so already and create or amend an existing Behavior Intervention Plan (“BIP”). If the Team agrees that the student needs to be educated in a more restrictive environment such as a therapeutic day school, to receive FAPE, the team may make this placement.

Functional Behavioral Assessments and Behavior Intervention Plans

Functional Behavioral Assessments (FBAs) and Behavior Intervention Plans (BIPs) can and should be done for any student with a disability whose behavior impedes learning. However, they are particularly important for students facing disciplinary actions for their behaviors. FBAs involve observing the student and discussing “target behaviors” to try to determine the possible antecedents, motivations, and other circumstances or reasons leading to the behavior in question. BIPs then take the data from the FBA to develop a clear outline of what the school will do to prevent the specific target behavior, and how the school will react if the behavior occurs. This can include incentives for the student, teaching the student more appropriate replacement behaviors, and addressing the antecedents to behaviors.

If the behavior is determined not to be a manifestation

If the behavior is determined to not be a manifestation of the student’s disability and the school properly implemented his IEP, then the school can discipline the student just like any other student. However, the district must continue providing special education services throughout this process, even in the case that the student is expelled. These services can be in an alternative school, therapeutic school, or through tutoring, but must enable the child to continue to participate in the general education curriculum and to progress toward meeting the goals set out in the child’s IEP. 34 C.F.R. §300.530(d)(4).

Protections for students not yet determined eligible for special education

Students not yet found available for special education may still be protected by IDEA under certain circumstances if the school knew that the student was a student with a disability before the incident that led to the discipline. Schools are deemed to know if:

• The parent stated in writing to a supervisor, administrator or teacher that child may need special education;
• The parent requested an evaluation; and
• A teacher or staff member expressed specific concerns about the child’s pattern of behavior directly to the director of special education or another supervisory person. 34 C.F.R. §300.534.

However, schools are not deemed to know that a student has a disability if the parent has not allowed an evaluation or has refused special education services, or if the child has been evaluated and determined not to be a child with a disability. 34 C.F.R. §300.534(c).

Emergency 45-day removals

Under special circumstances, a school can remove a special education student for up to 45 school days without regard for whether the behavior is a manifestation of the student's disability. If the student:

• Carries a weapon or possesses a weapon at school, on school premises, or on the way to or at a school function. “Weapon” has the meaning given to the term” dangerous weapon” under 18 U.S.C. §930(g)(2), and includes instruments that are used for or readily capable of causing death or serious bodily injury, but does not include a pocket knife with a blade of less than 2 ½ inches in length;
• Knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, while at school on school premises, or on the way to or at a school function. “Illegal drug” includes controlled substances under federal law, but does not include substances legally possessed or used under the supervision of a licensed health-care professional; and
• Has inflicted serious bodily injury upon another person while at school, on school premises, or on the way to or at a school function. “Serious bodily injury” has the meaning given in 18 U.S.C. §1365(h)(3) and includes a substantial risk of death, extreme physical pain, protracted and obvious disfigurement, and protracted loss or impairment of the function of a bodily member, organ, or mental function. 34 C.F.R. §300.530.

Requirements for the Use of Isolated Time Out, Time Out, and Physical Restraint

Special education students can be physically mistreated by staff and faculty through the use of isolation, time out, and physical restraint. The Illinois State Board of Education (ISBE) has passed regulations to reduce the negative treatment of special education students, requiring schools to treat restraint and isolation as a last resort. Schools are only to use physical restraint and isolation when a student is presenting an imminent danger of serious physical harm and when less restrictive means have been ineffective at stopping the imminent danger.  23 Ill. Admin. Code §§ 1.285

Employees of Illinois schools may not:

• Lock students in a seclusion room,
• Hold the door to a seclusion room shut,
• Use prone restraint on students,
• Take away students' clothing, or
• Deny students food, water, or access to a bathroom.

Employees of Illinois schools must:

• Notify ISBE within 48 hours of putting students in seclusion or a restraint,
• Conduct "supine reviews" if a student is restrained in supine position more than once in 30-days, and
• Release students from seclusion immediately if they no longer pose an "imminent danger" to themselves or others.

Employees of Illinois schools may not use seclusion rooms for:

• Discipline or punishment,
• Convenience,
• Retaliation,
• Replacing educational or behavioral support,
• Routine safety matters, or
• Preventing property damage.

Employees of Illinois schools may still use supine restraints on students.