Disciplining Students With Disabilities

In July 2022, the U.S. Department of Education issued sweeping new guidance related to the discipline of students with disabilities receiving special education under the Individuals with Disabilities Education Act (IDEA) or services under Section 504 of the Rehabilitation Act (Section 504).

The timing was not accidental. As students returned to schools following the COVID-19 pandemic, unprecedented mental health and discipline issues emerged. Thus, it was an appropriate time to call attention to the laws applicable to students with disabilities.

It would be impossible to summarize the guidance in a single article, so I will highlight key points related to IDEA and Section 504. It might be tempting to view the guidance purely from a compliance perspective—as a checklist of things to do to satisfy the school’s obligations under the law. Resist that temptation; instead, approach the guidance with an equity frame of mind.

Despite the circumstances and the challenges you are likely facing (e.g., shortages of resources and personnel), specific legal protections remain applicable to students with disabilities and are perhaps more important than ever. These processes exist to help deliver a free appropriate public education (FAPE).

While IDEA and Section 504 are laden with bureaucratic acronyms, it’s important to remember why they exist: Both are efforts to redress a history of discrimination against students with disabilities. In other words, they are a means of ensuring equal educational opportunity, and the guidance is a vehicle to help direct your school toward that end.

Section 504 Protections

Section 504 prohibits any entity receiving federal assistance—including schools—from discriminating against people with disabilities. Students might receive rights (and trigger responsibilities) in your school based on their qualifying under a 504 plan and not under IDEA. Section 504 is concerned with preventing discrimination, so the guidance focuses on helping avoid discrimination when disciplining students.

The department’s new guidance calls special attention to Section 504’s broad scope of coverage. Nondiscriminatory provisions related to discipline also apply to nonschool employees (e.g., lunch attendants, afterschool vendors’ employees) working in schools. This is one of the most important aspects of the guidance and the department’s view of 504’s scope.

The guidance explicitly notes that Section 504’s nondiscrimination prohibitions apply to school district resource and police officers. The department appears ready to aggressively examine disciplinary practices and incidents between students and school resource officers.

New Modifications to Disciplinary Policies

In a related point, the guidance also discusses the potential need for schools to modify existing schoolwide policies to avoid any conflict with Section 504, alongside policies used by entities providing a service to the school.

The Department of Education offers this example to illustrate: If an afterschool program has a rule that disciplines students for repeated interruptions during weekly meetings, that rule might prove difficult for a student with ADHD; school districts should consider whether reasonable accommodations might be made.

The guidance also notes that reasonable modifications to policies and practices governing interactions between students with disabilities and law enforcement personnel might be required to avoid discrimination against students with disabilities. Examples include providing time and space to calm a situation that does not present an immediate safety threat and minimizing touch with students who are particularly sensitive to it.

Section 504 and Students With Behavioral Needs

The guidance offers an extensive review of the processes educators must follow in order to provide a FAPE to students with disabilities under Section 504. Readers will be familiar with many of these, but a few things deserve emphasis. First, Section 504 imposes an obligation on schools to refer students for an evaluation if they think a student might need special education or services because of a disability.

The new guidance also outlines the processes that must be followed to determine if Section 504 applies to a student with a disability experiencing behavioral issues—and how it applies. In the context of behavior, a student who has not previously been identified as having a disability might exhibit a pattern of problematic behaviors that results in discipline. Increased office referrals for the student might be a sign, and issues might present in a student who did not exhibit such behaviors or alert you to any potential concern about a disability prior to the pandemic.

Depending on what you witness, a referral might be appropriate. If an evaluation indicates that the challenging behaviors are caused by or “substantially related” to the student’s disability, the leadership team must identify the appropriate behavioral supports to offer, such as mental health services or individual counseling.

Changes in Placement

Certain processes must be followed when a student’s change of placement is proposed for disciplinary purposes, and some of these are discussed more completely in the context of IDEA below. Yet, a few points are worth emphasizing.

One common situation requires balancing the rights of the student with a disability against the rights of another student who might have been a victim of the behavior in question. The guidance dictates that a student with a disability who has harassed another student, for example, can be—and depending on the situation, should be—moved to a different classroom.

This would not constitute a “significant” change in placement, the document says. The important caveat is that the student with a disability must receive the same services, instruction, and support in the new classroom. Likewise, all other requirements must be satisfied.

Differential Treatment

Finally, the guidance outlines two very general ways in which a school’s use of discipline could discriminate against students with disabilities. First, a school might be discriminating against students with disabilities if it subjects them to unnecessary different treatment based on their disability.

Second, disciplinary policies or practices that result in even unintentional, unjustified discriminatory effects to students with disabilities might violate Section 504. In other words, even a “facially neutral” policy that impacts students with disabilities disparately might represent prohibited discrimination.

How will you know if a facially neutral policy is having a disparate impact? Data. If you keep records of student discipline—as you are likely required to do—note the rates of discipline for students with disabilities.

IDEA Guidance

The department offers guidance regarding IDEA in a question-​and-answer format. Here are some highlights:

The IEP team, program development, and behavioral supports. The guidance reminds us that IDEA requires the IEP team to develop a special education program that provides the child with a FAPE in the least restrictive environment. One important takeaway is the emphasis on the pivotal role the IEP team plays in tending to behavioral issues that might impede the delivery of a FAPE.

The IEP team must consider the behavioral needs of a child and implement positive behavioral supports when the child’s behavior impedes their own learning or that of other students. Put another way: As you develop or modify a student’s IEP, it is important to proactively consider and assess the ways in which the student’s behavior impacts the learning environment.

For many of you, this is second nature. But the guidance underscores the fact that adjustments of students’ IEPs to incorporate more robust attention to behavioral assessment and supports might be necessary, especially as students readjust to school post-pandemic. You might see student behaviors that appear atypical for a particular student with a disability, or something that was not apparent when you last developed or modified an IEP. You might need to reconvene the IEP team under such circumstances.

Discipline and “change of placement” for school code violations. Like the situation concerning Section 504, the guidance reviews the concept of a “change in placement.” Why is this emphasized? As student behavioral issues emerge, there is an increasing likelihood that they will run afoul of student school discipline codes. This could result in students with disabilities being excluded from the typical placements outlined in their IEP.

A change in placement is defined in a number of ways. First, a change of placement occurs when a child is removed from school for more than 10 consecutive days. In addition, a change of placement can occur when a “pattern” of removal totaling more than 10 school days results from behavior that is substantially similar in each incident.

A change triggers certain duties, including a manifestation determination. Here, the school must ask whether the student’s violation of the code of conduct was caused by, or had a direct relationship to, the student’s disability. Or did the conduct result because of the school district’s failure to implement the IEP? If either is true, it triggers a host of other obligations, including a functional behavioral assessment plan and the implementation or modification of a behavioral intervention plan.

Remember, however, that a student who experiences a disability is not exempt from discipline under the student code of conduct. Indeed, the guidance highlights—and this is important—that school leaders do not have to choose between keeping staff and students safe and protecting the rights of students with disabilities.

A school district can remove a student with disabilities from their current placement in instances where the child has inflicted serious bodily injury or possesses a dangerous weapon on school premises, for example, regardless of whether the incident was a manifestation of the student’s disability.

Applying the Guidance

As a school leader, how should you treat this guidance in your everyday work? It is impossible for me to distill every salient point of the more than 30 single-spaced pages of the Section 504 guidance document here, but I present the following recommendations for your consideration:

• Be aware that the department calls special attention to its view that Section 504’s provisions extend to the conduct of entities and people with whom the school has a contractual or similar arrangement.
• A Section 504 training is likely appropriate for direct staff and those with whom you have vendor arrangements, such as afterschool providers.
• The guidance makes explicit mention that the applicability of 504’s nondiscriminatory provisions extends to the conduct of school resource and school district police officers. Thus, Section 504-specific training with these stakeholders might be in order.
• Use data to understand trends in student discipline. To assess whether a seemingly neutral disciplinary policy has a disparate (and potentially discriminatory) impact, look at the numbers. Are students with disabilities being disciplined under provisions of the school code at a different rate than their nondisabled peers?
• The process of referring and evaluating students with disabilities is an iterative one; you might have to revisit a student’s 504 or IEP if current behavioral interventions are not working.
• Special education law does not prohibit you from taking immediate action when there is a safety threat to students, staff, or others.

Mark Paige is associate professor of public policy at the University of Massachusetts Dartmouth, a former school law attorney, and a board member of Education Law Association.