Students with Behavioral Challenges:
Discipline Basics for the Special Needs Student
By Michael J. Connolly
McAndrews Law Offices, P.C.
The start of the start of the new school year often brings excitement for many students and their parents. However, it can also cause anxiety for a lot of parents and students, particularly parents of students with special needs, who may have a variety of academic and functional needs. For some students, their needs may be more emotional and behavioral in nature, which can often result in disciplinary action, increasing anxiety over the start of the school year and making this time of year perfect for a review of the often confusing discipline rules applicable to students with special needs.
As a general matter, Pennsylvania school districts are given a fair amount of latitude when it comes to disciplining students for violations of their code of student conduct. With the obvious exception of corporal punishment and other similar aversive disciplinary measures, the why, when, and how of school discipline for most students is typically left to the discretion of the school district with some minimal due process requirements for suspensions and expulsions from school. For example, any out of school suspension requires that the student be informed of the reasons for the suspension and given an opportunity to respond, suspension that are four to ten days in length require an informal hearing, and any suspension beyond ten days (which in Pennsylvania is considered an expulsion) requires a formal hearing before the school board. However, for those students who are eligible or thought-to-be-eligible for services under the Individuals with Disabilities Education Act (“IDEA”) or eligible under Section 504 of the Rehabilitation Act (“Section 504”), there is an additional layer of complicated and often confusing disciplinary rules that may provide a child with significantly more protections and place certain limitations on a school’s ability to impose disciplinary measures.
More specifically, the IDEA provides rules and protections for eligible students and thought-to-be-eligible students – those students not yet identified as eligible, but who, because they met certain criteria, may be eligible services – where a student engages in behavior that is a manifestation of his or her disability. Although Section 504 does not include the same level of specificity in regard to disciplinary issues, it does contain a general prohibition on discriminating against a student because of his or her disability, which has been interpreted by the courts as prohibiting discipline where there is a clear nexus between the behavior at issue and the student’s disability.
In Pennsylvania, the disciplinary protections related to suspensions and/or expulsions from school afforded to special needs students generally begin after 10 consecutive days of suspension or 15 cumulative days of suspension in a given school year. Until one of those thresholds is crossed, the only protections from a suspension available to an eligible student are the same due process protections afforded to all students under Chapter 12 of the Pennsylvania Code as briefly discussed above. Once the threshold of 10 consecutive or 15 cumulative suspension days has been crossed, any further removals from school of an eligible student is considered a change in placement, which requires a manifestation determination meeting to take place before going forward with the proposed disciplinary removal from school. Again, while Section 504 does not have a specific manifestation determination requirement, there still must be some level of consideration as to whether there is a nexus between the behavior at issue and the student’s disability. A manifestation determination meeting allows a school district to meet this requirement under Section 504.
A manifestation determination requires the student’s Individualized Education Plan (IEP) Team to meet to review the behavior at issue in light of the student’s disability, and to determine whether the behavior was in fact a manifestation of the student’s disability by answering two very specific questions: (1) Was the conduct in question caused by, or have a direct and substantial relationship to, the child’s disability; and (2) Was the conduct in question the direct result of the district’s failure to implement the IEP? If the team answers yes to either question, the behavior is considered to be a manifestation of student’s disability, the student must be returned to the last agreed upon placement (or other placement mutually agreed to by the parents and district), and the school district may not proceed with any further disciplinary action. Moreover, for an IDEA eligible student the school district must also complete a Functional Behavior Assessment (“FBA”) and develop a Positive Behavior Support Plan (“PBSP”), or review and revise as may be appropriate an already existing PBSP. Although Section 504 does not explicitly require an FBA and PBSP be developed, it is clearly advisable for a school district to so under the same circumstances it would under the IDEA.
If the team answers no to both manifestation determination questions, then the behavior at issue is not considered a manifestation of the student’s disability, and the school district may proceed with disciplinary action so long as the student is still afforded the due process protections contained in Chapter 12. The school district must also provide the parents notice of its decision, from which the parents may disagree and request an expedited due process hearing to challenge the school district’s determination. However, during any dispute over the manifestation determination, the district may precede with the suspension or expulsion until the hearing officer issues a decision. Remember, even if a suspension or expulsion is permitted to go forward, a student eligible under the IDEA, is still entitled a free and appropriate public education (“FAPE”) during the period of disciplinary removal so long as the suspension or expulsion exceeds 10 days in a school year.