Individuals with Disabilities Eduction Act (IDEA): Discipline Provisions in P.L. 108-446
CRS Report for Congress
Individuals with Disabilities Education Act (IDEA):
Discipline Provisions in P.L. 108-446
Updated October 3, 2006
Nancy Lee Jones
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress
Individuals with Disabilities Education Act (IDEA):
Discipline Provisions in P.L. 108-446
Summary
Under the Individuals with Disabilities Education Act (IDEA), a child with a
disability is not immune from disciplinary procedures; however, these procedures are
not identical to those for children without disabilities. If a child with a disability
commits an action that would be subject to discipline, school personnel have several
immediate options. A child with a disability who violates a code of student conduct
may be removed from her current placement to another setting or suspension for up
to 10 school days; the child may be placed in an interim alternative education setting
for up to 45 school days for situations involving weapons, drugs, or if the student has
inflicted serious bodily injury upon another person while at school; and a hearing
officer may be asked to order a child be placed in an interim alternative educational
setting for up to 45 school days if the hearing officer determines that maintaining the
current placement of the child is substantially likely to result in injury to the child or
others. If the local educational agency (LEA) seeks to change the placement of a
child with a disability because of a violation of a code of student conduct, either on
an interim basis or on a long-term basis (except for a 10-day suspension), a
manifestation determination review must be conducted to determine whether the
conduct in question was caused by, or had a direct and substantial relationship to, the
child’s disability, or was the direct result of the LEA’s failure to implement the
individualized education program (IEP). If the child’s behavior is not a manifestation
of a disability, long-term disciplinary action such as expulsion may occur, except that
educational services may not cease.
The Individuals with Disabilities Education Improvement Act of 2004, P.L. 108-
Several important changes are made by this law to provisions on the discipline of
children with disabilities. Generally, the new provisions give schools increased
flexibility for dealing with children with disabilities who misbehave.
This report examines the statutory provisions relating to discipline with an
emphasis on changes that were made by P.L. 108-446 and the final regulations. It
will be updated as necessary.
Contents
In troduction ......................................................1
History of IDEA’s Discipline Procedures...............................2
Discipline Provisions in the Individuals with Disabilities Education
Improvement Act of 2004.......................................4
Overview of Disciplinary Procedures..............................4
Case-by-Case Determination.....................................5
The Ten School Day Rule.......................................6
Interim Alternative Educational Settings............................6
Manifestation Determination.....................................8
Child’s Placement During Appeals...............................10
Children Who Are Not Yet Eligible for Special Education and
Related Services..........................................11
Law Enforcement and Judicial Entities............................12
Transfer of Disciplinary Information..............................13
Individuals with Disabilities Education Act
(IDEA): Discipline Provisions in
P.L. 108-446
Introduction
The Individuals with Disabilities Education Act (IDEA)1 is both a grants statute
and a civil rights statute. It provides federal funding for the education of children
with disabilities and requires, as a condition for the receipt of such funds, the
provision of a free appropriate public education (FAPE). The statute also contains
detailed due process provisions to ensure the provision of FAPE.
On December 3, 2004, President Bush signed the Individuals with Disabilities
Education Improvement Act, P.L. 108-446. This act is the first reauthorization of
IDEA since 1997 and, although the new law preserves the basic structure of IDEA,
it also makes significant changes in the law.2 Some of the most controversial
changes were made regarding the discipline of children with disabilities.
Generally under IDEA a child with a disability is not immune from disciplinary
procedures; however, these procedures are not identical to those for children without
disabilities. If a child with a disability commits an action that would be subject to
discipline, school personnel have immediate several options. A child with a
disability who violates a code of student conduct may be removed from her current
placement to another setting or suspension for up to 10 school days; the child may
be placed in an interim alternative education setting for up to 45 school days for
situations involving weapons, drugs, or if the student has inflicted serious bodily
injury upon another person while at school; and a hearing officer may be asked to
order a child be placed in an interim alternative educational setting for up to 45
school days if the hearing officer determines that maintaining the current placement
of the child is substantially likely to result in injury to the child or others. If the local
educational agency (LEA) seeks to change the placement of a child with a disability
because of a violation of a code of student conduct either on an interim basis or on
a long-term basis (except for a 10-day suspension), a manifestation determination
review must be conducted to determine whether the conduct in question was caused
1 20 U.S.C. §1400 et seq.
2 For an overall analysis of the changes made by P.L. 108-446, see CRS Report RL32716,
Individuals with Disabilities Education Act (IDEA): Analysis of Changes Made by P.L. 108-
446, by Richard N. Apling and Nancy Lee Jones. For an examination of the final
regulations, see CRS Report RL33649, Individuals with Disabilities Education Act (IDEA):
Final Regulations for P.L. 108-446, by Richard N. Apling and Nancy Lee Jones. It should
be noted that the Department of Education maintains a website on IDEA that contains topic
briefs, as well as the statute and regulations, at [http://idea.ed.gov].
by, or had a direct and substantial relationship to, the child’s disability or was the
direct result of the LEA’s failure to implement the individualized education program
(IEP). If the child’s behavior is not a manifestation of a disability, long-term
disciplinary action such as expulsion may occur, except that educational services may
not cease.
Several provisions were added by P.L. 108-446 that give schools increased
flexibility for dealing with children with disabilities who misbehave. For example,
the 2004 reauthorization adds to the provisions that allow a school to place a child
with a disability in an interim alternative educational setting for not more than 45
school days by including a child who has inflicted serious bodily injury on another
person.
The concept of a manifestation determination, a procedure to determine whether
or not the behavior of a child with a disability was caused by the child’s disability,
is kept in P.L. 108-446. However, the manner in which such a determination is made
is changed by the new law. Changes are also made regarding the placement of a child
with a disability when a parent or LEA disagrees with any decision regarding
placement or the manifestation determination.3
History of IDEA’s Discipline Procedures
The manner in which children with disabilities can be disciplined may seem
quite complex, but the logic involved is much more apparent when IDEA’s history
is examined. IDEA was originally enacted in 1975 as the Education for All
Handicapped Children Act, P.L. 94-142. The primary motive for its enactment was
the fact that children with disabilities often failed to receive an education or received
an inappropriate education.4 This lack of education gave rise to numerous judicial5
decisions, notably PARC v. State of Pennsylvania, and Mills v. Board of Education
3 Although it is beyond the scope of this report to examine studies on the implementation
and efficacy of discipline approaches, it should be noted that there is some research data
available. For example see GAO, Student Discipline: Individuals with Disabilities
Education Act, GAO-01-210 (January 2001); GAO, Special Education: Clearer Guidance
Would Enhance Implementation of Federal Disciplinary Provisions, GAO-03-550 (May
Preventing School Violence: A Practical Guide to Comprehensive Planning; Indiana
Education Policy Center, Zero Tolerance, Zero Evidence: An Analysis of School
Disciplinary Practice (Aug. 2000); Fordham Foundation and the Progressive Policy
Institute, Rethinking Special Education for a New Century (May 2001).
4 The House and Senate Reports for P.L. 94-142 both noted statistics indicating that there
were more than eight million children with disabilities and that “only 3.9 million such
children are receiving an appropriate education, 1.7 million handicapped children are
receiving no educational services at all, and 2.5 million handicapped children are receivingthst
an inappropriate education.” H.Rept. 94- 332, 94 Cong., 1 Sess. 11 (1975); S.Rept. 94-thst
5 343 F.Supp. 279 (E.D.Pa. 1972).
of the District of Columbia.6 These decisions found constitutional infirmities with
the lack of education for children with disabilities when the states were providing
education for children without disabilities. As a result, the states were under
considerable pressure to provide such services, and they lobbied Congress to assist
them.
In enacting P.L. 94-142, Congress provided grants to the states to help pay for
education for children with disabilities and also delineated specific requirements the
states must follow in order to receive these federal funds. These requirements did not
contain a discipline provision per se but rather contained a requirement that if there
is a dispute between the school and the parents of a child with a disability, the child
“stays put” in his or her current educational placement until the dispute is resolved
using the due process procedures set forth in the statute. The concept of “stay put”
was placed in the statute to help eliminate the then common discriminatory practice
of expelling children with disabilities from school. A revised “stay put” provision
remains as law in the current version of IDEA.7
Issues relating to children with disabilities who exhibited violent or
inappropriate behavior have been raised for a number of years. In 1988, the question
of whether there was an implied exception to the stay put rule was presented to the
Supreme Court in Honig v. Doe.8 Honig involved emotionally disturbed children one
of whom had choked another student with sufficient force to leave abrasions on the
child’s neck and who had kicked out a window while he was being escorted to the
principal’s office. The other child in the Honig case had been involved in stealing,
extorting money and making lewd comments. The school had sought expulsion, but
the Supreme Court disagreed finding that “Congress very much meant to strip
schools of the unilateral authority they had traditionally employed to exclude
disabled students, particularly emotionally disturbed students, from school.”9
However, the Court observed that this holding did “not leave educators
hamstrung....Where a student poses an immediate threat to the safety of others,
officials may temporarily suspend him or her for up to 10 school days....And in those
cases in which the parents of a truly dangerous child adamantly refuse to permit any
change in placement, the 10-day respite gives school officials an opportunity to
invoke the aid of the courts under section 1415(e)(2), which empowers courts to
grant any appropriate relief.”10 This statement about the school’s right to seek
judicial relief has come to be known as a Honig injunction.
The Supreme Court’s interpretation of IDEA in Honig did not quell all concerns
about discipline and children with disabilities. In 1994, Congress amended IDEA’s
stay put provision to give schools the unilateral authority to remove a child with a
disability to an interim alternative educational setting if the child was determined to
6 348 F.Supp. 866 (D.D.C. 1972).
7 20 U.S.C. §1415(j), P.L. 108-446 §615(j).
8 484 U.S. 305 (1988).
9 484 U.S. 305, 323 (1988)(emphasis in the original).
10 Id. at 325-326. The current statutory provision providing for district court jurisdiction in
found at 20 U.S.C. §1415(i), P.L. 108-446 §615(i).
have brought a firearm to school. This provision was expanded upon in the IDEA
Amendments of 1997 to include weapons, not just firearms, and drugs and is further
expanded in the 2004 reauthorization to include situations where a student has
inflicted serious bodily injury upon another person while at school.
The Department of Education (ED) had received numerous questions from
schools about discipline and in 1995 issued a memorandum discussing numerous
discipline issues including the use of manifestation determinations.11 If a school
sought to suspend or expel a child with a disability for more than 10 days, the school
must first make a “manifestation determination,” a determination concerning whether
the student’s misconduct was related to his or her disability. If the behavior was not
related to the disability, the school could suspend or expel for more than 10 days but
must continue to provide education services. If the behavior was related to the
disability, the school must give notice of any recommended change in placement and,
if the parent objected, the parent could invoke the stay put provision. The
Department found that Honig injunctions, court orders to change the placement of
a child with a disability, were proper when a school believed that maintaining the
child in his or her current placement was “substantially likely to result in injury to the
student or others.” The concept of a manifestation determination was placed in
statutory language in 1997 by P.L. 105-17 as was the regulatory interpretation that
educational services cannot cease for children with disabilities even if they have been
suspended or expelled. Both of these provisions are kept in P.L. 108-446, but the
manifestation determination and the stay put on appeals provisions are amended.
Discipline Provisions in the Individuals with
Disabilities Education Improvement Act of 2004
Overview of Disciplinary Procedures
Generally, under P.L. 108-446 a child with a disability is not immune from
disciplinary procedures; however, these procedures are not identical to those for
children without disabilities. The House passed bill, H.R. 1350, 108th Cong., had
required school personnel to treat all children in the same manner with regard to
discipline except that for children with disabilities educational services wouldth
continue. The Senate bill, S. 1248, 108 Cong., contained an approach similar to that
of previous law but attempted to “make it simpler, easier to administer, and more fair12
to all students.” Under final enacted law, if a child with a disability commits an
action that would be subject to discipline, school personnel have several options.
These include
!removing a child with a disability who violates a code of student
conduct from her current placement to another setting or suspension
for up to 10 school days.
11 OSEP Memorandum 95-16, 22 IDELR 531 (April 26, 1995).
12 S.Rept. 108-185, 108th Cong. 43 (2003).
!placing the child in an interim alternative education setting for up to
45 school days for situations involving weapons, drugs, or if the
student has inflicted serious bodily injury upon another person while
at school.
!asking a hearing officer to order a child be placed in an interim
alternative educational setting for up to 45 school days if the hearing
officer determines that maintaining the current placement of the
child is substantially likely to result in injury to the child or others.
School officials may also seek a Honig injunction as discussed previously if they are
unable to reach agreement with a student’s parents and they feel that the new
statutory provisions are not sufficient.
If the local educational agency seeks to change the placement of a child with a
disability because of a violation of a code of student conduct, a manifestation
determination review must be conducted. The manifestation determination review
determines whether the conduct in question was caused by, or had a direct and
substantial relationship to, the child’s disability or was the direct result of the local
educational agency’s failure to implement the individualized education program. If
the child’s behavior is not a manifestation of a disability, long-term disciplinary
action such as expulsion may occur, except that educational services may not cease.
Case-by-Case Determination
The 2004 reauthorization adds a specific section giving school personnel the
authority to consider unique circumstances on a case-by-case basis when determining
whether to order a change in placement for a child with a disability who violates a
code of student conduct.13 The IDEA regulations elaborate on this provision and
require that the case-by-case determination be “consistent with the other requirements
of this section.”14 These unique circumstances, ED noted, were “best determined at
the local level by school personnel who know the individual child and all the facts
and circumstances regarding a child’s behavior” and, therefore, ED did not include
more detailed discussion in the regulations.15 However, in the comments to the
regulations, ED did observe that certain factors, such as a child’s disciplinary history,
ability to understand consequences, expression of remorse, and supports provided to
the child prior to the violation, could be unique circumstances.16 The regulations also
state in part that the ability of school personnel to remove a child with a disability is
to be applied “to the extent those alternatives are applied to children without
disabilities” and as long as the removals do not constitute a change in placement.17
13 20 U.S.C. §1415(k)(1)(A), P.L. 108-446 §615(k)(1)(A).
14 34 C.F.R. §300.530(a).
15 71 Federal Register 46714, Aug. 14, 2006.
16 Id.
17 34 C.F.R. §300.530(b)(1).
The Ten School Day Rule
School personnel may remove a child with a disability who violates a code of
student conduct from his current placement to an appropriate interim alternative
educational setting, another setting, or suspension for not more than 10 school days.
These options are to be applied to the same extent that they would be applied to
children without disabilities.18 The 10-day rule was added to IDEA in 1997 and
codified what was existing practice. The Supreme Court in Honig v. Doe, supra, had
allowed 10-day suspensions under prior law. The 2004 reauthorization reworded the
provision and changed 10 days to 10 school days. It should be noted that the time
limitations regarding disciplinary procedures generally refer to school days, not days.
Thus, the new law adds additional time to the 10-day rule and to other provisions
where the term “school day” is used.
The regulations state that where a child has been removed for more than 10
school days in the same school year, and the current removal is for not more than 10
consecutive school days and is not a change of placement, school personnel, in
consultation with the child’s teacher or teachers, determine the extent to which
services are needed so as to enable the child to continue to participate in the general
education curriculum.19 The regulations also provide that a child subject to this
removal must continue to receive educational services “as provided in §300.101(a),”
which is the regulatory provision guaranteeing FAPE.20 ED commented:
[W]hile children with disabilities removed for more than 10 school days in a
school year for disciplinary reasons must continue to receive FAPE, we believe
the Act modifies the concept of FAPE in these circumstances to encompass those
services necessary to enable the child to continue to participate in the general
curriculum, and to progress toward meeting the goals set out in the child’s IEP.
An LEA is not required to provide children suspended for more than 10 school
days in a school year for disciplinary reasons, exactly the same services in
exactly the same settings as they were receiving prior to the imposition of
discipline. However, the special education and related services the child does
receive must enable the child to continue to participate in the general curriculum,21
and to progress toward meeting the goals set out in the child’s IEP.
Interim Alternative Educational Settings
Removal to an Interim Alternative Educational Setting. P.L. 108-446
provides that school personnel may remove a student to an interim alternative
educational setting for not more than 45 school days in situations involving weapons
18 20 U.S.C. §13315(k)(1)(B), P.L. 108-446 §615(k)(1)(B).
19 34 C.F.R. §300.530(d)(4). ED noted in comments to the regulations that the requirement
to continue to participate in the curriculum does not mean that every aspect of the child’s
services must be continued. 71 Federal Register 46716, Aug. 14, 2006.
20 34 C.F.R. §300.530(d)(1)(i).
21 71 Federal Register 46716, Aug. 14, 2006.
or drugs, or where the student has inflicted serious bodily injury on another person.22
In addition, an LEA that believes that maintaining the current placement of the child
is substantially likely to result in injury to the child or others may request a hearing.
The hearing officer may order a change in placement to an interim alternative
educational setting for not more than 45 school days if the hearing officer determines
that maintaining the current placement of the child is substantially likely to result in
injury to the child or to others.23 The Senate report noted that this requirement was
to “address situations such as when a school cannot make a unilateral change in the
child’s placement because his behavior was a manifestation of his disability: the
school deems the child to be too dangerous to stay in a regular classroom, but has
been unable to reach agreement with the parents as to an appropriate alternative
placement for the child.”24
Numerous commentators on the proposed regulations suggested that the final
regulations clarify that the public agency has the burden of proof in arguing that
removing a child is necessary because maintaining the current placement is
substantially likely to result in injury to self or others.25 The IDEA statute is silent
on this issue, and ED declined to address it in the regulations. However, ED did
observe that the burden of proof in IDEA proceedings was at issue in Schaffer v.
Weast,26 a recent Supreme Court decision. The Court held there that the burden of
persuasion in a hearing challenging the validity of an IEP is on the party seeking
relief. Noting the Supreme Court’s decision, ED stated that “[w]here the public
agency has requested that a hearing officer remove a child to an interim alternative
educational setting, the burden of persuasion is on the public agency.”27
The regulations specifically allow a school district to seek a subsequent hearing
to continue the child in an interim alternative educational placement if the school
district believes that returning the child to the original placement is substantially
likely to result in injury to the child or others.28
Services Provided a Child with a Disability Who Is Placed in an
Interim Alternative Educational Setting. The Individuals with Disabilities
Education Improvement Act of 2004 provides that when a child with a disability is
removed from the child’s current placement to an interim alternative educational
22 20 U.S.C. §615(k)(1)(G), P.L. 108-446, §615(k)(1)(G).
23 20 U.S.C. §615(k)(3), P.L. 108-446, §615(k)(3).
24 S.Rept. 108-185, 108th Cong., 1st Sess. 45 (2003).
25 71 Federal Register 46723, Aug. 14, 2006.
26 126 S.Ct. 528, 163 L.Ed.2d 387, 2005 LEXIS 8554 (Nov. 14, 2005). For a more detailed
discussion of this case see CRS Report RS22353, The Individuals with Disabilities
Education Act (IDEA): Schaffer v. Weast Determines Party Seeking Relief Bears the Burden
of Proof, by Nancy Lee Jones.
27 71 Federal Register 46723, Aug. 14, 2006.
28 34 C.F.R. §300.532(b)(3).
setting pursuant to section 615(k)(1)(G)29 or a change in placement is ordered due to
a behavioral violation as described in section 615(k)(1)(C),30 the child is to continue
to receive educational services. These services must enable the child to continue to
participate in the general educational curriculum and to progress toward meeting the
child’s IEP goals. The child with a disability must also receive, as appropriate, a
functional behavioral assessment, behavioral intervention services and modifications
designed to prevent reoccurrence of the child’s behavioral violation.31
The regulations state that a public agency is only required to provide services
during periods of removal to a child with a disability who has been removed from a
current placement for 10 school days or less in that school year if the public agency
provides similar services to a child without a disability who is similarly removed.32
Manifestation Determination
As was noted previously, the concept of a manifestation determination
originated in policy interpretations of IDEA by the Department of Education. The
theory is that when behavior, even inappropriate behavior, is caused by a disability,
the response of a school must be different than when the behavior is not related to the
disability. This requirement was codified by P.L. 105-17 in 1997 and amended by
the 2004 reauthorization.33
The Individuals with Disabilities Education Improvement Act of 2004 requires
that within 10 school days of a decision to change the placement of a child with a
disability because of a violation of a code of student conduct, the LEA, parent, and
relevant members of the IEP team shall review all the relevant information in the
child’s file to determine: (1) if the conduct was caused by, or had a direct and
substantial relationship to, the child’s disability; or (2) if the conduct was the direct
result of the local educational agency’s failure to implement the IEP. An exception
to this requirement is made for situations involving the authority of school personnel
to remove a child for not more than 10 school days. The relevant members of the IEP
team are to be determined by the parent and the LEA. The material to be reviewed
29 20 U.S.C. §1415(k)(1)(G), P.L. 108-446, §615(k)(1)(G).
30 20 U.S.C. §1415(k)(1)(C), P.L. 108-446, §615(k)(1)(C).
31 20 U.S.C. §1415(k)(1)(D), P.L. 108-446 §615(k)(1)(D).
32 34 C.F.R. §300.530(d)(3).
33 The current manifestation determination differs from previous law which had the
manifestation determination review conducted by the IEP team and other qualified
personnel. The previous law found that the IEP team may determine that the behavior of the
child was not a manifestation of the child’s disability only if the IEP team considered certain
listed factors and then determined that the child’s IEP and placement were appropriate and
special education services, supplementary aids and services, and behavior intervention
strategies were provided consistent with the child’s IEP and placement. In addition, under
previous law, the IEP team had to determine that the child’s disability did not impair the
ability of the child to understand the impact and consequences of the behavior and that the
child’s disability did not impair the ability of the child to control the behavior. (P.L. 105-17,
§615(k)(4)).
shall include the child’s IEP, any teacher observations, and any relevant information
provided by the parents.34 If either of these two determinations are made by the
parent, LEA, and relevant members of the IEP team, the conduct shall be determined
to be a manifestation of the child’s disability.35
Once the behavior has been determined to be a manifestation of the child’s
disability, the IEP team must conduct a functional behavioral assessment and
implement a behavioral intervention plan for the child, unless the LEA had
conducted this assessment prior to the behavior in question. Where a behavior
intervention plan has been developed, the IEP team shall review the plan and modify
it, as necessary, to address the behavior. The IEP team must also return the child to
the placement from which he or she was removed unless the parent and the LEA
agree to a change in placement as part of the modification of the behavior
intervention plan or school personnel remove a child to an interim alternative
educations setting for not more than forty five school days as discussed below.36
The conference report for P.L. 108-446 specifically addresses the manifestation
determination. “The Conferees intend to assure that the manifestation determination
is done carefully and thoroughly with consideration of any rare or extraordinary
circumstances presented.... The Conferees intend that if a change in placement is
proposed, the manifestation determination will analyze the child’s behavior as
demonstrated across settings and across time when determining whether the conduct
in question is a direct result of the disability. The Conferees intend that in situations
where the local educational agency, the parent and the relevant members of the IEP
team determine that the conduct was the direct result of the child’s disability, a child
with a disability should not be subject to discipline in the same manner as a non-
disabled child. The Conferees intend that in order to determine that the conduct in
question was a manifestation of the child’s disability, the local educational agency,
the parent and the relevant members of the IEP team must determine the conduct in
question be [sic] the direct result of the child’s disability. It is intention [sic] of the
Conferees that the conduct in question was caused by, or has a direct and substantial
relationship to, the child’s disability, and is not an attenuated association, such as low
self-esteem, to the child’s disability.”37
P.L. 108-446 provides that if the child’s behavior is not related to his or her
disability, the relevant disciplinary procedures that are applicable to children without
disabilities may be applied to the child in the same manner and for the same duration
in which they would be applied to children without disabilities except that a free
appropriate public education must be made available to the child. The free
appropriate public education may be provided in an interim alternative educational
setting.38
34 20 U.S.C. §1415(k)(1)(E)(i), P.L. 108-446 §615(k)(1)(E)(i).
35 20 U.S.C. §1415(k)(1)(E)(ii), P.L. 108-446 §615(k)(1)(E)(ii).
36 20 U.S.C. §1415(k)(1)(F), P.L. 108-446 §615(k)(1)(F).
37 H.Rept. 108-779, 108th Cong, 2d Sess. 224-225 (2004).
38 20 U.S.C. §1415(k)(1)(C), P.L. 108-446 §615(k)(1)(C).
Child’s Placement During Appeals
The 2004 reauthorization allows a parent who disagrees with any decision
regarding placement or the manifestation determination, or a LEA that believes that
maintaining the current placement of the child is substantially likely to injure the
child or others, to request a hearing.39 The new law specifically delineates the
authority of a hearing officer. First, a hearing officer is to hear and make a
determination regarding any hearings requested pursuant to §615(k)(3)(A). In
making this determination, the hearing officer may order a change of placement,
which may include
!returning a child with a disability to the placement from which he or
she was removed, and
!ordering a change in placement to an appropriate interim alternative
educational setting for not more than 45 school days if the hearing
officer determines that maintaining the current placement of the
child is substantially likely to result in injury to the child or others.40
The Individuals with Disabilities Education Improvement Act of 2004 changed
the “stay put” provision in the appeals section. It should be noted that one of the core
requirements of the original 1975 law, and one which remains in the current statute,
is the requirement that a child with a disability remains in his or her current
educational placement during the pendency of §615 proceedings.41 The rationale for
this provision was to ensure that children with disabilities were not excluded from
receiving an education while a parent disputed issues relating to the provision of a
free appropriate public education. However, an exception to this general provision
was made for children with disabilities who are placed in interim alternative
educational settings in the 1997 reauthorization and this exception is amended by the
Under the 2004 reauthorization, when an appeal has been requested by either a
parent or the LEA under §615(k)(3) (which concerns appeals regarding a
manifestation determination or a placement in an interim alternative educational
setting), the child is to remain in the interim alternative educational setting pending
the decision of the hearing officer or until the time period for the disciplinary
infraction ends. Under previous law, the child was to remain in the interim
alternative educational setting for 45 days unless the school and the parents agreed
or a hearing officer rendered a decision.42 The current law requires that the State
educational agency (SEA) or LEA must arrange for an expedited hearing that must
39 20 U.S.C. §1415(k)(3)(A), P.L. 108-446 §615(k)(3)(A).
40 20 U.S.C. §1415(k)(3)(B), P.L. 108-446 §615(k)(3)(B).
41 20 U.S.C. §1415(j), P.L. 108-446 §615(j).
42 P.L. 105-17, §615(k)(7).
occur within 20 school days from when the hearing is requested. The hearing
determination must be made within 10 school days after the hearing.43
The Senate report discussed this provision noting that the committee did not
intend that a hearing officer’s reversal of a manifestation determination would allow
a child with a disability who had been placed in an interim alternative educational
setting for a violation regarding weapons, drugs, or serious bodily injury to be
removed early from this placement. “However, if a parent contests facts surrounding
the claim the child actually carried a weapon, brought drugs to school, or committed
a serious bodily injury, then the child may be returned to his or her original
placement if a hearing officer overturns the school district’s decision. Similarly, if
a parent successfully contests the provision of a free appropriate public education
(FAPE) in the interim alternative educational setting chosen by the IEP team, the
child’s placement could be changed before the 45 day period expires.”44
Children Who Are Not Yet Eligible for Special Education and
Related Services
One of the situations Congress grappled with during the 1997 reauthorization
concerned children who were the subject of a disciplinary action and who alleged
after the action occurred that they were disabled and thus entitled to the protections
of IDEA. This situation had been presented in several judicial decisions which raised
the issue of possible abuse of IDEA protections.45
The 2004 reauthorization keeps much of the previous law regarding the
protections afforded children who have not yet been identified as eligible for special
education. The Senate report stated that the committee maintained “its intent that
children who have not yet been identified for IDEA should be afforded certain
protections under the law.”46 However, several changes were made regarding when
a LEA is deemed to have knowledge that a child is a child with a disability.
Generally, a LEA is deemed to have knowledge that a child is a child with a disability
if, before the behavior that precipitated the disciplinary action:
!the parent of the child expressed concern, in writing, to supervisory
or administrative personnel of the LEA or the child’s teacher that the
child is in need of special education and related services,
43 20 U.S.C. §1415(k)(4), P.L. 108-446 §615(k)(4).
44 S.Rept. 108-185, 108th Cong., 1st Sess. 45 (2003).
45 Two court cases were examined by Congress concerning this issue: Hacienda La Puente
School District v. Honig, 976 F.2d 487 (9th Cir. 1992); and M.P. by D.P. v. Grossmont
Union High School District, 858 F.Supp. 1044 (S.D. Calif. 1994). In M.P. by D.P. v.
Grossmont Union High School District, the court observed that the student had benefitted
from using IDEA. “The plaintiff is a senior who was facing expulsion and thus would not
have graduated with his class. Because IDEA’s hearing process will take several months
to complete, even if the student is ultimately found not to be disabled, by invoking IDEA
the plaintiff will achieve the goal of graduating with his class and avoiding expulsion.”
46 S.Rept. 108-185, 108th Cong., 1st Sess. 45 (2003).
!the parent has requested an evaluation, or
!the teacher of the child or other LEA personnel has expressed
specific concerns about a pattern of behavior directly to the director
of special education or other supervisory personnel.47
Under previous law, a LEA was deemed to have knowledge that a child is a
child with a disability if the behavior or performance of the child demonstrated the
need for such services. This section was deleted by P.L. 108-446. The Senate report
stated that this provision was deleted because a teacher could make an isolated
comment to another teacher expressing concern about behavior and that could trigger
the protections.48
The 2004 reauthorization also contains a new exception stating that a LEA shall
not be deemed to have knowledge that a child is a child with a disability if the parent
of the child has not allowed an evaluation of the child, or has refused services, or the
child has been evaluated and it was determined that the child was not a child with a
disability.49
Certain conditions apply if the LEA has no basis of knowledge that a student is
a child with disability. Essentially if the LEA is not found to have such knowledge,
the child may be subject to the same disciplinary measures that are applicable to
children without disabilities except that if a request for an evaluation is made during
the time period in which the child is subjected to disciplinary measures, the
evaluation shall be conducted in an expedited manner. If the child is found to be a
child with a disability, special education and related services shall be provided.50
Law Enforcement and Judicial Entities
Prior to the 1997 reauthorization, judicial decisions gave rise to the issue of
when children with disabilities could be referred to law enforcement officials.51 The
2004 reauthorization keeps the previous requirements concerning referral to law
enforcement authorities. Nothing in Part B is to be construed to prohibit an agency
from reporting a crime committed by a child with a disability to appropriate
authorities. An agency reporting a crime committed by a child with a disability shall
ensure that copies of certain records are transmitted.52
47 20 U.S.C. §1415(k)(5), P.L. 108-446 §615(k)(5).
48 S.Rept. 108-185, 108th Cong., 1st Sess. 45-46 (2003).
49 20 U.S.C. §1415(k)(5)(C), P.L. 108-446 §615(k)(5)(C).
50 20 U.S.C. §1415(k)(5)(D), P.L. 108-446 §615(k)(5)(D).
51 See Morgan v. Chris L., 25 IDELR 227 (6th Cir. 1997), cert. denied, 520 U.S. 1271
(1997).
52 20 U.S.C. §1415(k)(6), P.L. 108-446 §615(k)(6).
Transfer of Disciplinary Information
The Individuals with Disabilities Education Improvement Act of 2004 keeps the
provisions of previous law regarding the transfer of disciplinary information. These
provisions were added in the 1997 reauthorization to address the potential for an
increased possibility of violence when a local school system is not adequately
informed about the child’s past. The law specifically allows a state, at its discretion,
to require a local educational agency to include a statement of any current or previous
disciplinary actions that have been taken against a child with a disability, in the
records of the child. The statement may include a description of the behavior the
child engaged in, a description of the disciplinary action taken, and other information
that is relevant to the safety of the child and other individuals. This information can
be transmitted to the same extent that such information would be transmitted with the
records of children who do not have disabilities. 53
53 20 U.S.C. §1415(i), P.L. 108-446 §615(i).