7.7 Discipline Procedures for Students with Disabilities

The 10-Day Rule and What Counts as a Change of Placement

School personnel may discipline a student with a disability the same way they discipline any other student, up to a point. That point is a change of placement, and IDEA defines it precisely (34 CFR 300.536):

A disciplinary removal is a change of placement if:

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:
   • the removals total more than 10 school days in a school year,
   • the student's behavior is substantially similar to behavior in previous incidents that resulted in removal, and
   • additional factors such as the length of each removal, the total amount of time removed, and the proximity of removals to one another indicate a pattern.

The district determines whether a pattern exists on a case-by-case basis, and that determination is itself subject to review through due process.

Counting Rules That Are Easy to Get Wrong

• Partial-day removals count. A student sent home at 11:00 a.m. has been removed for part of a day; districts must count that time.
• In-school suspension counts as a removal unless the student continues to receive the services in the IEP, continues to participate in the general curriculum, and continues to participate with nondisabled peers to the extent they would have in the current placement.
• Bus suspension counts when transportation is a service on the IEP and the district does not provide an alternative means of getting to school.
• "Informal" removals count. A pattern of calling the parent to pick the student up early, or asking a family to keep the student home, is a removal even if it was never entered as a suspension. This is one of the most common compliance failures a special educator will encounter, and documenting the pattern is part of the job.

The First 10 Days Versus Everything After

• Days 1 through 10 (cumulative, in a school year): the district may remove the student to the same extent it would remove a student without a disability, and no services are required during those days unless the district provides services to students without disabilities who are similarly removed.
• After the 10th cumulative day: the district must provide services that enable the student to continue to participate in the general education curriculum (in another setting) and to progress toward meeting the IEP goals. This obligation applies whether or not the behavior was a manifestation of the disability, and it does not require the removal to be a change of placement. If the removals are not a change of placement, school personnel in consultation with at least one of the student's teachers determine the extent of services; if they are a change of placement, the IEP team determines the services.

Manifestation Determination, Special Circumstances, and Appeals

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 district, the parent, and relevant IEP team members must review all relevant information in the file, including the IEP, teacher observations, and information provided by the parents, to answer two questions (34 CFR 300.530(e)):

1. Was the conduct caused by, or did it have a direct and substantial relationship to, the student's disability?
2. Was the conduct the direct result of the district's failure to implement the IEP?

If the answer to either is yes, the conduct is a manifestation.

If it is a manifestation, the team must:

• Conduct a functional behavioral assessment and implement a behavior intervention plan, or review and modify an existing BIP to address the behavior; and
• Return the student to the placement from which they were removed, unless the parent and district agree to a change as part of the BIP modification, or a special-circumstances removal applies.

If it is not a manifestation, the district may apply the same disciplinary procedures it would apply to a student without a disability, including long-term suspension or expulsion — but services must continue so the student can progress in the general curriculum and toward IEP goals, and the student receives an FBA and behavioral supports as appropriate.

If the conduct resulted from a failure to implement the IEP, the district must take immediate steps to remedy the deficiency. This finding is one of the most consequential in special education, because it converts a discipline event into an admission of non-implementation.

Special Circumstances: The 45-School-Day Interim Alternative Educational Setting

Under 34 CFR 300.530(g), school personnel may unilaterally remove a student to an interim alternative educational setting (IAES) for up to 45 school days, without regard to whether the behavior was a manifestation, if the student:

• Carries a weapon to or possesses a weapon at school, on school premises, or at a school function;
• Knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, while at school, on school premises, or at a school function; or
• Has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function.

The definitions are narrow and are drawn from federal criminal law. Serious bodily injury means injury involving a substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of a bodily member, organ, or mental faculty — a far higher bar than a fight resulting in bruises. A weapon is a dangerous device capable of causing death or serious bodily injury, and the definition excludes a pocket knife with a blade under 2.5 inches.

Even in an IAES, the student must continue to receive services enabling participation in the general curriculum and progress toward IEP goals, and must receive an FBA and behavioral supports designed to prevent recurrence. The IEP team determines the IAES.

Stay-Put and Expedited Due Process

• A parent may appeal the manifestation determination or the placement decision; a district may request a hearing when it believes maintaining the current placement is substantially likely to result in injury to the student or others.
• Discipline stay-put is different from ordinary stay-put. During an appeal of a disciplinary placement, the student remains in the interim alternative educational setting until the hearing officer decides or the removal period expires, whichever comes first — not in the placement that preceded the incident.
• Hearings on discipline appeals are expedited: the hearing must occur within 20 school days of the request, and the decision must issue within 10 school days after the hearing.
• A hearing officer may return the student to the prior placement or order a change to an IAES for up to 45 school days.

Students Not Yet Eligible

Under 34 CFR 300.534, a student who has not been determined eligible may assert IDEA's protections if the district had knowledge that the student was a child with a disability before the behavior occurred. Knowledge is deemed to exist if:

• The parent expressed concern in writing to supervisory or administrative personnel or a teacher that the student needs special education;
• The parent requested an evaluation; or
• A teacher or other district personnel expressed specific concern about a pattern of behavior directly to the director of special education or other supervisory personnel.

Knowledge is not deemed to exist if the parent refused an evaluation or refused services, or if the student was evaluated and found not eligible. If knowledge is not deemed, the student may be disciplined as any other student — but if an evaluation is requested during the disciplinary period, it must be expedited, and the student remains in the educational placement determined by school authorities pending the results.

What the Special Educator Actually Does

Track removal days, including partial days and informal send-homes, and raise the count before it crosses 10. Bring behavior data, not impressions, to the MDR. Ensure the FBA is real rather than a form completed after the fact. Verify that the IEP was in fact being implemented before the incident, because if it was not, that answer decides the MDR. And treat every MDR as a signal that the behavior plan was inadequate, whatever the legal outcome.