11.3 Legal & Ethical Issues in Discipline (MDR, Removals)

11.3 Legal & Ethical Issues in Discipline (MDR, Removals)

Quick Answer: IDEA gives schools authority to discipline students with disabilities using the same code of conduct applied to nondisabled students, but it layers procedural protections on top once a removal becomes long enough to count as a disciplinary change of placement. The two central mechanisms are the 10-school-day rule governing when protections activate, and the Manifestation Determination Review (MDR), which asks whether misbehavior is connected to the student's disability. A narrow set of special circumstances — weapons, illegal drugs, and serious bodily injury — allows removal to an Interim Alternative Educational Setting (IAES) for up to 45 school days regardless of the manifestation outcome. FTCE scenario items test whether a candidate can correctly sequence and apply this framework.

The Baseline: Schools Retain Disciplinary Authority

A common misconception is that IDEA prevents schools from disciplining students with disabilities. It does not. School personnel may remove a student with a disability who violates the code of student conduct to an appropriate alternative setting, another setting, or suspension for up to 10 school days, applying the same procedures used for students without disabilities, to the extent those procedures are also applied to nondisabled children. Schools may also impose additional removals of up to 10 consecutive school days each, for separate incidents of misconduct within the same school year, as long as those additional removals do not themselves add up to a disciplinary change of placement. The core legal question in most discipline scenarios is not whether the school may discipline the student, but whether the cumulative removal has become long enough to trigger additional procedural protections.

What Counts as a Disciplinary Change of Placement

A disciplinary change of placement is triggered in either of two ways:

1. The removal is for more than 10 consecutive school days, or
2. The student has been subjected to a series of removals that constitute a pattern, because they cumulate to more than 10 school days in a school year, and because of factors such as the length of each removal, the total amount of time the child has been removed, and the proximity of the removals to one another

This second pathway means a change of placement can occur even without any single long suspension — for example, several short suspensions spread across a school year can, together, constitute a change of placement if they form a pattern. Whether a series of shorter removals is a "pattern" is decided on a case-by-case basis by the school (subject to review through due process), not by a single bright-line rule beyond the 10-day cumulative total. Recognizing this pattern-based trigger, rather than assuming only one long suspension counts, is a frequently tested distinction.

The Manifestation Determination Review (MDR)

Within 10 school days of any decision to change the placement of a student with a disability because of a code-of-conduct violation, the school district, the parent, and relevant members of the IEP team must meet to conduct a Manifestation Determination Review (MDR). The team reviews all relevant information in the student's file, including the IEP, teacher observations, and any relevant information provided by the parents, to determine whether either of the following is true:

• The conduct in question was caused by, or had a direct and substantial relationship to, the child's disability, or
• The conduct in question was the direct result of the school's failure to implement the IEP

If the team answers yes to either question, the behavior is a manifestation of the disability. If the team answers no to both, the behavior is not a manifestation.

If Behavior Is a Manifestation

When the IEP team determines the behavior is a manifestation of the disability, the school must:

• Conduct a functional behavior assessment (FBA) and implement a behavior intervention plan (BIP), if an FBA had not already been conducted before the behavior occurred that led to the removal, or
• If a BIP already existed, review the BIP and modify it, as necessary, to address the behavior, and
• Return the child to the placement from which the child was removed, unless the parent and school agree to a placement change as part of the BIP modification — except when the special circumstances described below apply

If Behavior Is Not a Manifestation

When the team determines the behavior is not a manifestation of the disability, the school may apply the relevant disciplinary procedures in the same manner and for the same duration as it would to a child without a disability, with one critical caveat: the school must still provide educational services during the disciplinary removal to the extent required (described below). Being found "not a manifestation" does not mean the student loses all entitlement to services.

Continued Services During Removal

Regardless of whether a removal is or is not a disciplinary change of placement, and regardless of the manifestation outcome, a child removed from their current placement for more than 10 school days in a school year must continue to receive educational services so as to enable the child to:

• Continue to participate in the general education curriculum, although in another setting, and
• Progress toward meeting the goals set out in the child's IEP

This means a long-term suspension or a placement in an alternative setting can never simply cut off a student's education entirely — services continue, just potentially in a different location, and the specific services are determined by school personnel in consultation with at least one of the child's teachers.

Special Circumstances: The 45-School-Day IAES Exception

Regardless of whether the IEP team's manifestation determination finds the behavior connected to the disability, school personnel may unilaterally remove a student to an Interim Alternative Educational Setting (IAES) for up to 45 school days if the student, while at school, on school premises, or at a school function:

The IAES must still be selected by the IEP team, must enable the student to continue participating in the general curriculum and progress toward IEP goals, and must include services and modifications designed to address the behavior so it does not recur. Note that this 45-day authority applies even if the MDR finds the behavior was a manifestation of the disability — special circumstances override the usual return-to-placement outcome, though the school must still conduct the MDR and, if the behavior is a manifestation, still address it through an FBA/BIP.

Disagreement and the Expedited Hearing / Stay-Put Rule

If a parent disagrees with a manifestation determination or with any disciplinary placement decision, the parent may request an expedited due process hearing. Conversely, if school personnel believe returning the student to the original placement is substantially likely to result in injury to the child or others, the school may request an expedited hearing seeking an order to maintain the student in the IAES. While an expedited hearing or appeal is pending, the child generally remains in the IAES until the hearing officer decides or the 45-school-day period expires, whichever comes first, unless the parent and school agree otherwise — this is the discipline-specific version of the broader stay-put protection.

Protections for Students Not Yet Determined Eligible

A student who has not yet been found eligible for special education may still assert IDEA's discipline protections if the school is deemed to have had knowledge that the child was a child with a disability before the behavior occurred — for example, if a parent expressed concern in writing that the child needed special education, the parent requested an evaluation, or a teacher expressed specific concerns about a pattern of behavior directly to relevant supervisory school personnel. Recognizing this "basis of knowledge" pathway prevents schools from avoiding discipline protections simply because a formal eligibility determination had not yet been completed.