Amendments Relating to the Discipline of Children with Disabilities in H.R. 1 and S. 1, 107th Congress
CRS Report for Congress
Received through the CRS Web
Amendments Relating to the Discipline of
Children with Disabilities in H.R. 1 and S.1,
Nancy Lee Jones
American Law Division
On May 23, 2001 the House passed amendment number 13 to H.R.1, the No Child
Left Behind Act of 2001 and on June 14, 2001, the Senate passed amendment number
604 to S. 1, the Better Education for Students and Teachers Act. Both of these
amendments changed the provisions relating to the discipline of children with disabilities
to make the disciplinary procedures applicable to children with disabilities more like
those applicable to children without disabilities. The amendments would also eliminate
the requirement for educational services to children with disabilities in certain situations.
Background and Current Statutory Language Relating to
The Individuals with Disabilities Education Act (IDEA) provides federal funds to the
states to assist them in providing an education for children with disabilities. As a condition
for the receipt of these funds, IDEA contains requirements on the provision of services
and detailed due process procedures. In 1997 Congress amended IDEA in the most
comprehensive and controversial reauthorization since IDEA’s original enactment in 1975.
One of the most contentious issues addressed in the 1997 legislation related to the
disciplinary procedures applicable to children with disabilities.
IDEA was originally enacted in 1975 because children with disabilities often failed
to receive an education or received an inappropriate education. This lack of education led
to numerous judicial decisions, including PARC v. State of Pennsylvania1 and Mills v.2
Board of Education of the District of Columbia which found constitutional infirmities
with the lack of education for children with disabilities when the states were providing
1 343 F. Supp. 279 (E.D.Pa. 1972).
2 348 F. Supp. 866 (D.D.C. 1972).
Congressional Research Service ˜ The Library of Congress
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.3 Congress
responded with the grant program still contained in IDEA but also delineated specific
requirements that the states must follow in order to receive these federal funds. The
statute provided that if there was a dispute between the school and the parents of the child
with a disability, the child must “stay put” in his or her current educational placement until
the dispute is resolved. A revised stay put provision remains in IDEA.
Issues relating to children with disabilities who exhibit violent or inappropriate
behavior have been raised for years and in 1988 the question of whether there was an
implied exception to the stay put provision was presented to the Supreme Court in Honig4
v. Doe. Although the Supreme Court did not find such an implied exception, it did find
that a ten day suspension was allowable and that schools could seek judicial relief when
the parents of a truly dangerous child refuse to permit a change in placement. In 1994,
Congress amended IDEA’s stay put provision to give schools unilateral authority to
remove a child with a disability to an interim alternative educational setting if the child was
determined to have brought a firearm to school.
In 1997 Congress made significant changes to IDEA in P.L. 105-17 and attempted
to strike “a careful balance between the LEA’s (local education agency) duty to ensure
that school environments are safe and conducive to learning for all children, including
children with disabilities, and the LEA’s continuing obligation to ensure that children with
disabilities receive a free appropriate public education.”5 This current law does not
immunize a child with a disability from disciplinary procedures but these procedures may
not be identical to those for children without disabilities. In brief, if a child with a disability
commits an action that would be subject to discipline, school personnel have the following
! suspending the child for up to ten days with no educational services
!conducting a manifestation determination review to determine whether
there is a link between the child’s disability and the misbehavior. 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. If the child’s behavior is a manifestation of the
child’s disability, the school may review the child’s placement and, if
appropriate, initiate a change in placement.
!placing the child in an interim alternative education setting for up to forty
five days (which can be renewed) for situations involving weapons or
3 For a detailed discussion of the intent behind the enactment of P.L. 94-142 see Nancy Lee Jones,
“The Individuals with Disabilities Education Act: Congressional Intent,” CRS Report 95-669.
4 484 U.S. 305 (1988).
5 S.Rept. 105-17, 105th Cong., 1st Sess. 28 (1997); H.Rept. 105-95, 105th Cong., 1st Sess. 108
!asking a hearing officer to order that a child be placed in an interim
alternative educational setting for up to forty-five days (which can be
renewed) if it is demonstrated that the child is substantially likely to injure
himself or others in his current placement.
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.6
Amendment to H.R. 1, 107th Congress, the No Child Left Behind
Act of 2001
Representative Norwood sponsored an amendment to H.R. 1which he described as
allowing “special needs students to be disciplined under the same policy as nonspecial7
needs students in the exact same situation.” Essentially the amendment would eliminate
the mandated provision of educational services to children with disabilities who have been
suspended or expelled for actions involving drugs, weapons, or aggravated assault or
battery in a state that does not require educational services in that situation for children
More specifically, the amendment would add a section 5155 to the Elementary and
Secondary Education Act of 1965 providing that states receiving funds under the act shall
require each local education agency (LEA) to have in effect a policy allowing school
personnel to discipline a child with a disability in the same manner as a child without a
disability is disciplined if the child with a disability (1) carries or possesses a weapon to or
at a school, on school premises, or to or at a school function, (2) knowingly possesses or
uses illegal drugs or sells or solicits the sale of a controlled substance at school, on school
premises or at a school function, or (3) commits an aggravated assault or battery at a
school, on school premises, or at a school function. The disciplinary action may include
expulsion or suspension and school personnel may modify the disciplinary action on a case
by case basis. The child with a disability who is disciplined may also assert a defense that
the carrying of a weapon or the use, sale or solicitation of an illegal drug was unintentional
or innocent. If the child with a disability is suspended or expelled, he or she is not entitled
to receive educational services although the LEA may choose to provide educational or
mental health services. If such services are provided they do not have to be at any
particular level and their location is at the discretion of the LEA. The amendment also
contains definitions of “controlled substance,” “illegal drug,” and “weapon.”
The rationale advanced for the amendment by Representative Norwood was that
current Federal law requires schools to have two different discipline policies, one for
children with disabilities and one for children without disabilities, and that this created a
6 For a more detailed discussion of these provisions see Nancy Lee Jones, “Individuals with
Disabilities Education Act: Discipline Provisions in P.L. 105-17,” CRS Report 98-42 (April 19,
7 147 Cong. Rec. H2583 (daily ed. May 23, 2001).
system of “preferential treatment” for children with disabilities.8 Representative Graves
also spoke on behalf of the amendment, arguing that “creating a safe learning environment
must be a top priority for our schools. Unfortunately, the discipline provisions of IDEA9
make it impossible for educators to address the needs of all students in the classroom.”
Similarly, Representative Wicker stated: “There is no hidden agenda here. There is no
attempt to deny disabled students the ability to be educated. It is simply a matter of safety
in schools and order in schools and discipline in schools.”10
Several Members spoke in opposition to the amendment. Representative Miller
observed that sometimes children with disabilities need to be treated differently because
of their disabilities and that if the educational services for a child with a disability are
stopped, it is very difficult for the child to catch up. He also emphasized that under
current law, a child with a disability has to receive educational services but that he or she
does not have to receive them in the school.11 Representative Kildee also opposed the
amendment. He observed, noting the example of a child in Oregon who had been
suspended and then went on a shooting rampage, that removing troubled children with
disabilities from school without educational services “will lead only to additional juvenile
crime.”12 Representative Scott further elaborated on this argument. He stated that
hearings on youth crime had shown there was a strong link between dropping out of
school and subsequent crime with even higher correlations for children with disabilities and
that putting such children on the streets was a danger to the public.
IDEA Amendment to S. 1, 107th Congress, the Better Education for
Students and Teachers Act
The Senate amendment, like the House amendment, would implement uniform
disciplinary policies regarding the discipline of children with disabilities in certain
circumstances. The Senate amendment is not limited to specific disciplinary situations like
those involving weapons but amends IDEA by adding a new subsection relating to uniform
policies on discipline when the behavior at issue is not a manifestation of the child’s
disabilities, providing for certain procedural protections, and providing for alternative
placements of children with disabilities in certain situations.
Senator Sessions offered the Senate amendment which would add a new subsection
to IDEA relating to uniform disciplinary policies. The amendment provides that
notwithstanding any other provision of IDEA, a SEA (State educational agency) or LEA
may establish and implement uniform policies regarding discipline and order applicable to
all children in order to ensure the safety of such children and an appropriate educational
atmosphere. This broad grant of authority is limited in situations where the behavior in
question is a manifestation of the child’s disability. In that situation, the child with a
disability who is removed from his or her regular education placement shall receive a free
10 Id. at H2584. See also statement of Rep. Barr.
11 Id. at. H2583.
appropriate public education which may be provided in an alternative educational setting.
The manifestation determination is to be made no later than ten school days after the
school personnel decide to remove the child with a disability from the child’s regular
educational placement. If the behavior is determined not to be a manifestation of the
child’s behavior, the same disciplinary procedures may apply to the child as are applied to
children without disabilities.
The Sessions’ amendment also contains a provision relating to procedural safeguards.
This section provides school personnel with the discretion to consider all germane factors
in each individual case and modify disciplinary action on a case-by-case basis. The child
with a disability may assert a defense that the alleged act was unintentional or innocent.
If the parents or the LEA disagree with a manifestation determination, the parents or the
agency may request a review of the determination through the current IDEA procedures
for an impartial due process hearing. During the course of the review, the child with a
disability shall receive a free appropriate public education which may be provided in an
alternative educational placement.
The last section of the Sessions’ amendment allows a LEA, at the written request of
a parent, to transfer a child with a disability to any accredited school that is specifically
designed to serve children with disabilities, is selected by the child’s parents, agrees to
accept the child, and carries out a program that the SEA or LEA determine will benefit the
child. Certain IDEA funds shall follow the child to this new placement.
Senator Sessions read from a number of letters from educators and students
recounting situations where children with disabilities were disrupting classrooms and not
receiving appropriate discipline and described his amendment during Senate debate as a
“modest attempt at improving the situation. If a child is a disabled child and their
misbehavior is not connected to their disability, then they can, and I think should, be
treated like any other child in the school.”13 In a colloquy with Senator Kennedy, Senator
Sessions affirmed that if the behavior that led to the disciplinary action was a result of the
child’s disability, alterative educational services are available to that child. Senator
Sessions also indicated that if the behavior problem is not related to the disability, the child
with a disability would be treated like a child without a disability.14 Senator Allen argued
in support of the Sessions’ amendment that it “would properly return the ability to the
local schools and principals to establish and implement uniform discipline policies15
applicable to all children in our States and school districts.”
Senator Kennedy expressed concern about the provision of the amendment allowing
for the placement of a child with a disability in a school designed to serve children with16
disabilities resulting in a loss of quality educational experiences. Similarly, Senator
Harkin argued that the amendment would segregate children with disabilities, noting that
if the behavior is a manifestation of the child’s disability the child’s free appropriate public
education may be provided in an alternative educational setting. He observed that, unlike
13 147 Cong. Rec. S6199-6200 (daily ed. June 13, 2001).
14 Id. at S6200.
15 147 Cong. Rec. S6244 (daily ed. June 14, 2001).
16 147 Cong. Rec. S6201 (daily ed. June 13, 2001).
current law, there would be no inquiry as to whether or not the child with a disability was
provided adequate supportive services. Finally, Senator Harkin argued that there was no
data indicating that children with disabilities were causing discipline problems in schools.17
Senator Kennedy also argued that there was no data to support the contention that IDEA’s
requirements made imposing school discipline onerous. Several Senators opposed the
Sessions’ amendment because they felt it should be more carefully examined during the
next reauthorization of IDEA.18
17 Id. at S6205.
18 147 Cong. Rec. S6245-6246 (daily ed. June 14, 2001).