Individuals with Disabilities Education Act: Discipline Provisions in P.L. 105-17

CRS Report for Congress
Individuals with Disabilities
Education Act (IDEA): Discipline
Provisions in P.L. 105-17
Updated August 3, 2004
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. 105-17
Summary
The 1997 Amendments to the Individuals with Disabilities Education Act are
the most comprehensive and significant changes made since its original enactment.
Several of the most important changes were made regarding the discipline of children
with disabilities. Congress attempted to strike “a careful balance between the LEA’s
(local educational agency’s) duty to ensure that school environments are safe and
conducive to learning for all children, including children with disabilities, and the
LEA’s obligation to ensure that children with disabilities receive a free appropriate
public education.”
Generally, the new provisions give schools increased flexibility for dealing with
children with disabilities who misbehave. A school may now place a child with a
disability in an interim alternative educational setting for not more than forty-five
days if the student has been involved with drugs or weapons (not just firearms as
under previous law). An impartial hearing officer may order a change in placement
for a child with a disability to an interim alternative educational placement for up to
forty-five days if the hearing officer finds that the school has demonstrated by
substantial evidence that leaving the child in the current placement is substantially
likely to result in injury to the child or others. In addition, P.L. 105-17 codifies the
previous interpretation by the Department of Education that educational services may
not cease for children with disabilities who have been suspended or expelled. Final
regulations, issued by the Department of Education on March 12, 1999, elaborated
upon these statutory requirements. This report examines both the statutory and
regulatory provisions relating to discipline as well as recent proposed amendments.
It will be updated as necessary.



Contents
In troduction ......................................................1
History of IDEA’s Discipline Procedures...............................2
Discipline Provisions in the IDEA Amendments of 1997...................4
The Ten Day Rule.............................................5
School Initiated Interim Alternative Educational Placements............6
Hearing Officer Initiated Interim Alternative Educational Placements.....6
Manifestation Determination Review..............................7
Child’s Placement During Appeals................................8
Continuation of Educational Services..............................8
Children who are not yet Eligible for Special Education and
Related Services...........................................9
Law Enforcement and Judicial Entities............................10
Transfer of Disciplinary Information..............................10
Proposed Amendments to IDEA Discipline Provisions Since 1997......11



Individuals with Disabilities Education Act
(IDEA): Discipline Provisions in P.L. 105-17
Introduction
On June 4, 1997, the Individuals with Disabilities Education Act Amendments
of 1997, P.L. 105-17, were signed into law. These amendments are the most
comprehensive and significant changes made to the Individuals with Disabilities
Education Act (IDEA) since its enactment in 1975. Several of the most important
changes were made regarding the discipline of children with disabilities. Congress
attempted to strike “a careful balance between the LEA’s 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.”1
Although much of the previous statute, case law, regulations and policy
guidance was incorporated in the new statutory language, several provisions were
added which give schools increased flexibility for dealing with children with
disabilities who misbehave. The IDEA Amendments of 1997 allow a school to place
a child with a disability in an interim alternative educational setting for not more than
forty-five days if the student has been involved with drugs or weapons (not just
firearms as under previous law). An impartial hearing officer may order a change in
placement for a child with a disability to an interim alternative educational placement
for up to forty-five days if the hearing officer finds that the school has demonstrated
by substantial evidence that leaving the child in the current placement is substantially
likely to result in injury to the child or others. In addition, P.L. 105-17 codifies the
previous interpretation by the Department of Education that educational services may
not cease for children with disabilities who have been suspended or expelled.
The Department of Education promulgated final regulations under P.L. 105-17
on March 12, 1999 after receiving comments from about 6,000 individuals, public
agencies and organizations.2 The regulatory provisions on discipline were
controversial, especially those aspects relating to short term suspensions, and these
provisions were changed from what the Department had put forth in its proposed3
regulations.


1 S.Rept. 105-17, 105th Cong., 1st Sess. 28 (1997); H.Rept. 105-95, 105th Cong., 1st Sess. 108
(1997).
2 64 F.R. 12405 (March 12, 1999). For an overview of the final regulations see Jones and
Apling, “The Individuals with Disabilities Education Act: Department of Education Final
Regulations,” CRS Report RL30103 (March 22, 1999).
3 Proposed regulations, 62 F.R. 55025 (Oct. 22, 1997).

Although significant changes were made in the 1997 reauthorization of IDEA,
amendments have been proposed since then to further amend the discipline
provisions. Several of these have passed the House or Senate but have not become
law. The 108th Congress passed H.R. 1350 in both the House and Senate but
conferees have not yet been appointed. Prior to a more detailed discussion of the
1997 statutory and regulatory changes as well as more recent proposed changes, it
is important to briefly examine the history of IDEA’s discipline provisions.4
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 received5
an inappropriate education. This lack of education gave rise to numerous judicial
decisions, notably PARC v. State of Pennsylvania, 343 F.Supp. 279 (E.D.Pa. 1972),
and Mills v. Board of Education of the District of Columbia, 348 F.Supp. 866
(D.D.C. 1972). 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.


4 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

2003); Safe and Responsive Schools Project at the Indiana Education Policy Center,


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).
5 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

168, 94 Cong., 1 Sess. 8, reprinted in 1975 U.S. Code Cong. & Ad. News 1425, 1432.



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, 484 U.S. 305 (1988). 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.”6
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.”7 This statement about the school’s right to seek judicial
relief has come to be know 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
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.
The Department of Education had also received numerous questions from
schools about discipline and in 1995 issued a memorandum discussing numerous
discipline issues including the use of manifestation determinations.8 If a school
sought to suspend or expel a child with a disability for more than ten 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 ten 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 by P.L. 105-17. Similarly, the new statutory language continues
the regulatory interpretation that educational services cannot cease for children with
disabilities even if they have been suspended or expelled.


6 484 U.S. 305, 323 (1988).
7 Id. at 325-326.
8 OSEP Memorandum 95-16, 22 IDELR 531 (April 26, 1995).

Discipline Provisions in the IDEA Amendments of
1997
With the preceding background in mind, the specific changes made by P.L. 105-
17 will now be examined. First, however, it should be emphasized that much of what
Congress intended to do was to codify existing law that was found in the regulations,
case law, and policy guidance. The changes that were made were among the most
contentious in a long and controversial reauthorization. The House and Senate
reports described the changes in general.
The committee recognizes that school safety is important to educators and
parents. There has been considerable debate and concern about both if and how
those few children with disabilities who affect the school safety of peers,
teachers, and themselves may be disciplined when they engage in behavior that
jeopardizes such safety. In addition, the committee is aware of the perception of
a lack of parity when making decisions about disciplining children with and
without disabilities who violate the same school rule or code of conduct. By
adding a new section 615(k) to IDEA, the committee has attempted to strike a
careful balance between the LEA’s 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. Thus, drawing on
testimony, experience, and common sense, the committee has placed specific and
comprehensive guidelines on the matter of disciplining children with disabilities9
in this section.
Generally, a child with a disability is not immune from disciplinary procedures;
however, these procedures are not identical to those for children without disabilities.
If child with a disability commits an action that would be subject to discipline, school
personnel have several options. These include
!a suspension for up to ten days,
!placement in an interim alternative education setting for up to forty
five days for situations involving weapons or drugs, and
!asking a hearing officer to order a child be placed in an interim
alternative educational setting for up to forty five days if it is
demonstrated that the child is substantially likely to injure himself
or others in his current placement,
!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.


9 S.Rept. 105-17, 105th Cong., 1st Sess. 28 (1997); H.Rept. 105-95, 105th Cong., 1st Sess. 108
(1997).

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.
The Ten Day Rule
School personnel can order a change in placement for not more than ten days
to an appropriate interim alternative educational setting, another setting or suspension
to the same extent that these options would be applied to children without
disabilities. This new provision in P.L. 105-17 codifies what was existing practice.
The Supreme Court in Honig v. Doe, supra, had allowed ten-day suspensions under
the prior law.
However, the new statutory language does not state whether the ten days are ten
days for the school year or ten consecutive days and this became a point of
controversy in the proposed regulations. The final regulations responded to this
criticism with a compromise. School personnel may order the removal of a child
with a disability from the child’s current placement for not more than ten consecutive
school days for any violation of school rules to the extent that the same removal
would be applied to children without disabilities.10 In addition, the school may
remove a child with a disability for periods of not more than ten consecutive school
days in the same school year for other incidents of misconduct as long as these
removals do not constitute a change in placement as described in §300.519(b).
Section 300.519(b) states that a change in placement occurs if “the child is 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 is removed, and the proximity of the
removals to one another.”
For suspensions after suspensions for the first ten days of the school year, the
final regulations state that schools must provide services to the extent necessary to
enable the child to appropriately progress in the general curriculum and meet the
child’s IEP (individualized educational placement) goals.11 If the child is removed
for not more than ten consecutive days and there is not a change in placement, the
school personnel make the determination of which services are necessary.12 If there
is a change in placement, certain obligations are triggered for the LEA. The IEP team
must meet and develop a behavior assessment plan,13 manifestation determinations
are required,14 and certain services to meet the FAPE requirement must be provided.15


10 34 C.F.R. §300.520(a)(1).
11 34 C.F.R. §300.121(d)(2).
12 34 C.F.R. §300.121(d)(3).
13 34 C.F.R. §300.520(b).
14 34 C.F.R. §300.523.
15 34 C.F.R. §300.121(d).

School Initiated Interim Alternative Educational Placements
A major change made by P.L. 105-17 was the expansion of when an interim
alternative educational placement can be used. Under prior law, school officials
could make such a placement only when a student carried a firearm to school or a
school function. The IDEA Amendments of 1997 expand upon this authority to
allow schools to make such a placement not only for firearms but for weapons16 and
drugs. P.L. 106-25, the Education Flexibility Partnership Act of 1999, made a
technical amendment to this provision clarifying that the schools may remove a child
who has possession of a weapon at school and is not limited to situations where a
weapon is carried to school. The appropriate interim alternative education setting
is to be determined by the child’s individualized education program (IEP) team.
An important addition made by P.L. 105-17 concerns behavior intervention
plans. Within ten days after deciding to move a child with a disability to an interim
alternative educational setting, if there was not already a functional behavior
assessment and a behavioral intervention plan, the local education agency must
convene an IEP meeting to develop an assessment plan. If there was already a
behavior intervention plan, the IEP team is to review and, if necessary, modify the
plan.17 This requirement is in addition to the new statutory provision providing that
in developing a child’s IEP, where a child’s behavior impedes his or her learning or
the learning of others, the IEP team shall consider, when appropriate, strategies,
including positive behavioral interventions, and supports to address the behavior.18
Hearing Officer Initiated Interim Alternative Educational
Placements
A new situation where an interim alternative educational placement may be used
was added by P.L. 105-17. Under certain circumstances, an impartial hearing officer
may order a change in placement to an interim alternative educational setting for not
more than forty-five days. The hearing officer must: determine that the school has
demonstrated by substantial evidence that maintaining a child’s current placement
is “substantially likely to result in injury” to the child or others; consider the
appropriateness of the child’s current placement; consider whether the public agency
has made reasonable efforts to minimize the risk of harm in the child’s current
placement; determine that the interim alternative educational setting has been
selected so as to enable the child to continue to participate in the general curriculum
and to continue to receive those services and modifications that will enable the child
to meet the goals set out in his or her IEP; and determine that the interim alternative
educational placement shall include services and modifications designed to address


16 Weapon is defined as having the meaning of “dangerous weapon” under paragraph (2) of
the first subsection of 18 U.S.C. sec. 930. Dangerous weapon is defined in this subsection
as meaning “a weapon, device, instrument, material, or substance, animate or inanimate, that
is used for, or is readily capable of, causing death or serious bodily injury, except such term
does not include a pocket knife with a blade of less than 2 ½ inches.”
17 Section 615(k)(1)(B).
18 Section 614(d)(3)(B)(I).

the behavior that led to the disciplinary action so that the behavior does not reoccur.19
Manifestation Determination Review
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 that when the behavior is not related to the
disability. P.L. 105-17 codifies this requirement by mandating that a determination
regarding the relationship between a child’s disability and his or her behavior must
be made by the IEP team in certain circumstances. These circumstances, as specified
in the statute, are when school personnel contemplate ordering a change in placement
for disciplinary reasons to an interim alternative educational setting for not more than
forty-five days; when a hearing officer contemplates ordering a change in placement
for disciplinary reasons; or if a disciplinary action involving a change in placement
of more than ten days is contemplated for a child with a disability who has engaged
in any other behavior that has violated a school’s rule or conduct of conduct.20
If the child’s behavior is related to his or her disability, the school may review
the child’s placement and, if necessary, initiate a change in the child’s placement.
The school also has the option of suspending the child for ten school days or less and
seeking a Honig injunction.
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 in which they would be applied to children
without disabilities except that a free appropriate public education must be made
available to the child even if he or she is expelled or suspended. Parents have a right
to request a hearing if they disagree with the determination that the child’s behavior
was not a manifestation of the child’s disability or with any decision concerning
placement. In these cases, there shall be an expedited hearing.21
In order to find that a child’s behavior was not related to his or her disability, the
IEP team must consider all relevant information and must make three determinations.
First, the IEP team must find that in relation to the behavior in question, the child’s
IEP and placement were appropriate and the special education services and behavior
intervention strategies were provided according to the child’s IEP and placement.
Second, the IEP team must find that the child’s disability did not impair the child’s
ability to understand the impact and consequences of the behavior subject to
disciplinary action. Finally, the IEP team must find that the child’s disability did not
impair the ability of the child to control the behavior subject to the disciplinary
action. 22


19 Section 615(k)(2) and (3).
20 Section 615(k)(4)(A).
21 Section 615(k)(6)(A).
22 Section 615(k)(4)(C). The final Department of Education regulations reiterate the
(continued...)

Child’s Placement During Appeals
If the parents request a hearing regarding a disciplinary action involving an
interim alternative educational setting or manifestation determination, their child
with a disability shall remain in the interim alternative educational setting. This
placement is where the child stays until the hearing officer’s decision or until the
expiration of the specified time periods unless the parents and the LEA or SEA agree
otherwise.23 If the child is placed in an interim alternative educational setting for
more than ten days and the school wants to change the child’s placement after the
time in the interim alternative educational setting, and if the parents challenge the
proposed placement, the child stays put in the placement the child was in prior to the
interim alternative educational placement.24 If school personnel feel that this would
be dangerous, there may be an expedited hearing.25
The final regulations reiterate the statutory language and make clear that the
expedited hearing procedure may be repeated.26 In addition, the final regulations note
that “if the decision of a hearing officer in a due process hearing conducted by the
SEA or a State review official in an administrative appeal agrees with the child’s
parents that a change of placement is appropriate, that placement must be treated as
an agreement between the State or local agency and the parents for the purposes of
paragraph (a) of this section.”27 Paragraph (a) is the regulatory recitation of the stay
put requirement.
Continuation of Educational Services
One of the most controversial aspects of the discipline issue during the
reauthorization of IDEA involved the cessation of educational services for children
with disabilities. IDEA has from its inception required that each state receiving
funds have in effect a policy that assures all children with disabilities the right to a
free appropriate public education (FAPE). P.L. 105-17 added to this requirement,
indicating that it includes “children with disabilities who have been suspended or28
expelled from school.”


22 (...continued)
statutory language regarding manifestation determinations and do not require a
manifestation determination for a ten day suspension. See 34 C.F.R. §300.523.
23 Section 615(k)(7).
24 Id.
25 Section 615(k)(7)(C).
26 34 C.F.R. §300.526(c).
27 34 C.F.R. §300.514(c).
28 Section 612(a)(1)(A).

The statutory addition tracked the interpretation of the law by the Department
of Education’s Office of Special Education Programs (OSEP)29 which had been
criticized as being beyond the scope of IDEA’s statutory language. Previously, the
state of Virginia refused to comply with the OSEP interpretation. This led to several
judicial decisions and the Fourth Circuit Court of Appeals found that the plain
language of IDEA did not condition the receipt of IDEA funds on the continued
provision of educational services to expelled children with disabilities and that in
order for Congress to place conditions on the state’s receipt of federal funds,
Congress must do so clearly and unambiguously.30 The clear signal sent to Congress
by the courts was that if Congress wanted to avoid judicial controversies and impose
a requirement that educational services cannot cease for children with disabilities, it
should amend the statute to do so. Congress responded by adding the qualifying
phrase to the FAPE requirement in P.L. 105-17 indicating that FAPE extends to
children with disabilities who have been suspended or expelled.
The Department of Education’s final regulations addressed the meaning of the
new FAPE language when read in connection with the rule on ten day suspensions.
The final regulations interpreted the statute as not requiring services during the first
ten days a child is removed from school31 but for subsequent suspensions, schools are
required to provide certain services.32
Children who are not yet Eligible for Special Education and
Related Services
One of the situations Congress sought to address during the 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 protections33
of IDEA. P.L. 105-17 allows such a child to assert the protections of IDEA if the
local educational agency had knowledge that the child was a child with a disability
before the behavior that precipitated the disciplinary action occurred. The law
specifically states that the LEA is deemed to have such knowledge if
!the parent of the child has expressed concern in writing (unless the
parent is illiterate or has a disability that prevents such expression)
to personnel of the agency that the child is in need of special
education and related services;
!the behavior or performance of the child demonstrates the need for
such services;


29 OSEP Memorandum 95-16, 22 IDELR 531, 536 (OSEP 1995).
30 Virginia Department of Education v. Riley, 86 F.3d 1337 (4th Cir. 1996).
31 34 C.F.R. §300.121(d)(1).
32 34 C.F.R. §300.121(d)(2).
33 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).

!the parent of the child has requested an evaluation of the child; or
!the teachers of the child or other LEA personnel have expressed
concern about the behavior or performance of the child to the special
education director or to other personnel of the agency.34
This last category caused some concern among school officials who feared that
it would indicate that the LEA had knowledge that the child was a child with a
disability if there were casual hallway comments. In the final regulations, the
Department of Education stated that this concern had to be expressed to the director
of special education “or to other personnel in accordance with the agency’s
established child find or special education referral system.”35
Law Enforcement and Judicial Entities
Prior judicial decisions also gave rise to the issue of when children with
disabilities could be referred to law enforcement officials.36 P.L. 105-17 specifically
states that nothing in Part B of IDEA shall be construed to prohibit an agency from
reporting a crime committed by a child with a disability to appropriate authorities or
to prevent state law enforcement and judicial authorities from exercising their
responsibilities.37
Transfer of Disciplinary Information
The IDEA Amendments of 1997 also provide for the transfer of disciplinary
information on a child with a disability since it was felt that there was an increased
possibility of violence when a local school system was not adequately informed about
the child’s past. The Amendments specifically allowed 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 can 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 the38
records of children who do not have disabilities. In the final regulations, the
Department of Education discussed the relationship of this provision to the Family


34 Section 615(k)(8)(A) and (B).
35 34 C.F.R. §300.527(b)(4).
36 See Morgan v. Chris L., 25 IDELR 227 (6th Cir. 1997), cert. denied, 520 U.S. 1271
(1997).
37 See State of Connecticut v. David F., 1998 Conn. Super. LEXIS 3247 (Nov. 6, 1998),
where the court interpreted this provision to allow a juvenile delinquency proceeding. The
court stated that “the juvenile court’s jurisdiction will not frustrate the IDEA or its ‘stay put’
provisions.”
38 Section 613(j).

Educational Rights and Privacy Act (FERPA) and found that IDEA permits
transmission of records only to the extent permitted by FERPA.39
Proposed Amendments to IDEA Discipline Provisions Since
1997
Legislation Prior to the 108th Congress.
Although Congress described its 1997 changes to discipline provisions as a
“careful balance,” it was not long before amendments to change the provisions
surfaced. Amendments were offered to H.R. 1, 107th Cong., and its companion bill,40
S. 1. Both these amendments passed their respective Houses but the conference
committee did not include them as part of the final legislation which became P.L.

107-110.


Representative Norwood described his amendment to H.R. 1 as allowing
“special needs students to be disciplined under the same policy as nonspecial needs41
students in the exact same situation.” Essentially the amendment would have
eliminated 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 without disabilities.
The amendment offered by Senator Sessions to S. 1, like the House amendment,
would have implemented uniform disciplinary policies regarding the discipline of
children with disabilities in certain circumstances. The Senate amendment was not
limited to specific disciplinary situations like those involving weapons but would
have amended 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.
In 1999 the Senate passed S. 254, 106th Cong., the Violent and Repeat Juvenile
Accountability and Rehabilitation Act of 1999, and the House passed H.R. 1501,
106th Cong., the Child Safety and Protection Act, both of which contained
amendments to IDEA. These amendments would have changed section 615 of IDEA
to eliminate IDEA’s different disciplinary procedures for children with disabilities
in certain situations. In the Senate the amendment applied to children with
disabilities who carry a gun or firearm while in the House the amendment would42


have covered a weapon. These amendments were not enacted.
39 34 C.F.R. §300.529.
40 For a more detailed discussion of these amendments see CRS Report RS20947,
Amendments Relating to the Discipline of Children with Disabilities in H.R. 1 and S. 1, 107th
Congress, by Nancy Lee Jones.
41 147 Cong. Rec. H2583 (daily ed. May 23, 2001).
42 For a more detailed discussion of these amendments see CRS Report RS20558, The
(continued...)

Two amendments relating to children with disabilities were offered and
accepted during House Education and Workforce Committee markup of H.R. 4141,
106th Cong., the Elementary and Secondary Education Act Amendments. One
amendment, offered by Representative Norwood, concerned the discipline of a child
with a disability who carries or possesses a weapon. The other amendment, offered
by Representatives Talent, McIntosh and Tancredo, concerned the discipline of a
child with a disability who knowingly possesses or uses illegal drugs at school or
commits an aggravated assault or battery at school. These amendments were not
enact ed. 43
Legislation in the 108th Congress.
In the 108th Congress, the IDEA reauthorization bills both included amendments
that would change the current law relating to the discipline of children with
disabilities. H.R. 1350, 108th Congress, passed the House on April 30, 2003. On
May 13, 2004, the Senate incorporated S. 1248 in H.R. 1350 and passed H.R. 1350
in lieu of S. 1248. Conferees have not yet been appointed.44
Both House and Senate bills would keep the ability of school personnel to
suspend a child with a disability for up to ten school days but they differ regarding
other changes in placement. The House bill would delete many of the provisions in
current law while the Senate bill would make some revisions. The House Report
states that “(t)he discipline improvements in the bill provide for a uniform school
discipline code and substantially reduce the confusion and complexity of the current
system.”45 Under H.R. 1350 (House), school personnel would be able to order a
change in placement of a child with a disability who violates a code of student
conduct to an appropriate interim alternative educational setting selected so as to
enable the child to continue to participate in the general education curriculum and to
progress toward IEP goals for not more than 45 school days (to the extent such
alternative and such duration would be applied to children without disabilities). In
addition, this action “may include consideration of unique circumstances on a case-
by-case basis.” H.R. 1350 (House) specifically states that this change in placement
could last beyond 45 school days if required by state law or regulation for the
violation in question, to ensure the safety and appropriate educational atmosphere in
the schools.


42 (...continued)
Individuals with Disabilities Education Act: Proposed Discipline Amendments, by Nancy
Lee Jones.
43 Id.
44 For a more detailed discussion of the House and Senate bills see CRS Report RL32415,
The Individuals with Disabilities Education Act (IDEA): Comparison and Analysis ofth
Selected Provisions in H.R. 1350 as Passed by the House and by the Senate, 108 Congress,
by Nancy Lee Jones and Richard N. Apling.
45 H. Rep. No. 77, 108th Cong., at 118 (April 29, 2003).

The Senate report describes the Senate changes regarding discipline as making
the procedures “simpler, easier to administer, and more fair to all students.”46 The
Senate bill would change the current law relating to interim alternative educational
settings by adding a provision allowing school personnel to remove a student to an
interim alternative educational setting for not more than forty-five days, regardless
of whether the behavior is determined to be a manifestation of a disability, where a
child with a disability has committed serious bodily injury upon another person while
at school or at a school function under the jurisdiction of a state or local educational
agency.47 H.R. 1350 (Senate) would require that the LEA notify the parents of the
decision to take disciplinary action and all the procedural safeguards available under
section 615, not later than the date on which the decision to take disciplinary action
is made.
Both House and Senate bills would provide that when a child with a disability
is removed from his or her current placement pursuant to these authorities, the child
continue to receive educational services so as to enable the child to continue to
participate in the general educational curriculum and to progress toward meeting the
IEP goals. Both the House and Senate bill also contain provisions relating to the
receipt of behavioral intervention services.
Under H.R. 1350 (Senate), a hearing may be requested by the parent of a child
with a disability who disagrees with any decision regarding disciplinary action,
placement or the manifestation determination under this subsection, or by a LEA that
believes the maintenance of the current placement of the child is substantially likely
to result in injury to the child or others. As provided in current law, H.R. 1350
(Senate) also would allow a hearing officer to order a change in placement for a child
with a disability to an appropriate interim alternative educational setting for not more
than forty-five 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.
One of the significant differences between the House and Senate bills concerns
the use of a manifestation determination. H.R. 1350 (House) would delete the
requirement in current law that a determination be made concerning whether a child’s
action was a manifestation of his or her disability and also would delete the provision
in current law that if the child’s behavior was not a manifestation of the child’s
disability, the relevant disciplinary procedures applicable to children without
disabilities may be applied to the child in the same manner in which they would be
applied to children without disabilities, except that educational services may not
cease. H.R. 1350 (Senate) would keep the concept of a manifestation determination
but contains revised language. Manifestation determinations do not have to be
conducted prior to taking a disciplinary action for ten consecutive school days or less


46 S. Rep. No. 185. 108th Cong., at 43 (Nov. 3, 2003).
47 The Senate bill defines the term “serious bodily injury” in the same manner as in 18
U.S.C. §1365(h)(3) which states: “the term ‘serious bodily injury’ means bodily injury
which involves – (A) a substantial risk of death; (B) extreme physical pain: (C) protracted
and obvious disfigurement; or (D) protracted loss or impairment of the function of a bodily
member, organ or mental facility.”

or for a removal in cases involving weapons, drugs, or serious bodily injury. In other
situations, the Senate bill would require that within ten school days of any decision
to change the placement of a child with a disability because of a violation of a code
of student conduct, the IEP team shall review all relevant information in the student’s
file, any information provided by the parents, and teacher observations to determine:
(1) if the conduct in question was the result of the child’s disability; or (2) if the
conduct in question resulted from the failure to implement the IEP or develop and
implement behavioral interventions. If either of these two conditions is applicable,
the Senate bill provides that the conduct is determined to be a manifestation of the
child’s disability.
One of the key provisions of IDEA concerns where a child with a disability shall
be placed during the pendency of a due process proceeding. The House and Senate
bills do not change the general stay put provision in current law which requires that
a child remain in his or her then current educational placement during the pendency
of due process procedures; however, there are some changes regarding stay put for
placements during appeals regarding a disciplinary action, the interim alternative
educational setting, or the manifestation determination. Both the House and Senate
bills would make changes to the current law regarding placement of a child with a
disability during these appeals by a parent. Generally, as in current law, both bills
would require that the child remain in the interim alternative educational setting
pending the decision of the hearing officer or until the expiration of the time period
provided, unless the parent and the state or local educational agency agree otherwise.
H.R. 1350 (Senate) differs from current law and provides for the child with a
disability to remain in the interim alternative education setting pending the decision
of the hearing officer or the expiration of the time period in the following situations:
when a parent requests a hearing regarding disciplinary procedures described in
§615(k)(1)(B) which concerns the application of the disciplinary procedures when
the actions of the child with a disability are not determined to be a manifestation of
the child’s disability; when there is a challenge to the interim alternative educational
setting (same as current law); or when there is a challenge to the manifestation
determination.
The Senate bill would require the State or local educational agency to arrange
for an expedited hearing to occur within twenty school days of the date of the request
for the hearing. The Senate bill also would delete the provision in current law
regarding current placement and expedited hearings.
In the House bill, the stay put requirement is applicable to a change in placement
as described in §615(j)(1)(B), H.R. 1350 (House), which would allow school
personnel to order a change in placement for a child with a disability who violates a
code of student conduct. Under current law, this exception to the general “stay put”
requirement is more limited and applies to situations involving weapons, drugs or
where a hearing officer has determined that maintaining the current placement is
substantially likely to result in injury to the child or others. The House and Senate
bills would delete the provisions in current law regarding current placement during
appeals and expedited hearings. Under current law, if a child with a disability is
placed in an interim alternative educational setting and school personnel propose to
change the child’s placement after the expiration of the interim alternative placement,
the child is to remain in the child’s placement prior to the interim alternative



education setting pending the result of the proceeding. The Senate bill, but not the
House bill, would add a requirement that the state or local educational agency arrange
for an expedited hearing which shall occur within twenty school days of the date the
hearing is requested.
Current law provides that a child who has not been determined to be eligible for
special education and related services and who has engaged in behavior that violated
any rule or code of conduct of the local educational agency, may seek the protections
of IDEA if the local educational agency had knowledge that the child was a child
with a disability before the behavior that precipitated the disciplinary action occurred.
The current law sets forth certain situations where a local educational agency shall
be deemed to have knowledge that a child is a child with a disability. The House and
Senate bills contain similar provisions; however, the House bill requires the teacher
or school personnel to express concern in writing about the behavior or performance
of the child to the director of special education or other personnel while the Senate
bill requires that the teacher or school personnel express concern about a pattern of
behavior demonstrated by the child to the director of special education or other
administrative personnel. The Senate bill, but not the House bill, would add a new
situation where the LEA is deemed to have knowledge: where the child has engaged
in a pattern of behavior that should have alerted LEA personnel that the child may
be in need of special education and related services. In addition, the Senate bill, but
not the House bill, would add an exception where the LEA is deemed not to have
knowledge that the child has a disability if the parent of the child has not agreed to
allow an evaluation of the child