Discipline and Special Education

I.        A School District may be precluded from imposing discipline on a student where the conduct to be disciplined is a manifestation of a student’s disability.

When a student has a disability, federal law may limit the imposition of discipline that a school district may impose on that student for a violation of a student code of conduct. The Individuals with Disabilities in Education Act (the IDEA) provides procedural safeguards for children with disabilities and their parents with respect to a free and appropriate public education. See Centennial School District v. Phil L. ex rel. Matthew L., 559 F.Supp.2nd 634, 641 (E.d. Pa. 2008), 20 U.S.C. 1415(a). One such procedural safeguard exists when school personnel determine that a student with a disability has violated a student code of conduct, and a change in placement is warranted as a result. 20 U.S.C. 1415(k).

Where a student has a disability and that student’s conduct results in discipline that removes the student from his current educational placement to an appropriate interim alternative educational setting, another school setting, or results in a suspension for not more than ten days, a school may discipline a student in the same manner as it disciplines a student without such a disability. 20 U.S.C. 1415(k)(1)(B). However, where the discipline of a student with a disability results in a change of placement, which can include a suspension, for a period of over ten days, a school district must take certain steps.

Where school personnel determine that such a change in placement is warranted for a student with a disability because of a violation of a student code of conduct, a manifestation determination must be made within ten days. 20 U.S.C. 1415(k)(1)(E). Such a determination must involve the local educational agency, the student’s parents, and all relevant members of the student’s IEP team. Id.  The Manifestation Determination must also consider the specifics of the incident that occurred. See Bristol Township v. Z.B., 15-4604, *10 (E.D. Pa. 2016). The manifestation determination must then consider whether the conduct in question was (1) caused by, or had a direct and substantial relationship to the student’s disability, or (2) the direct result of the local educational agency’s failure to implement the student’s IEP. 20 U.S.C. 1415(k)(1)(E)(i).

Where a potential change in placement or suspension would exceed ten days, and the behavior that gives rise to the violation of the school code is determined not to be a manifestation of the student’s disability, then the disciplinary procedures available to school personnel are identical to those disciplinary procedures applicable to students without disabilities, with some statutory exceptions. 20 U.S.C. 1415(k)(1)(C). Where, however, a determination is made that a student’s conduct is a manifestation of his disability, that student must be returned to his prior educational placement unless certain special circumstances exist. 20 U.S.C. 1415(k)(1)(F)-(G). These special circumstances include cases involving weapons, drugs, or serious bodily injury. In cases where a student is returned to his prior educational placement, a school district must conduct a functional behavioral assessment and implement a behavioral intervention plan, or modify an existing one if one is already in place. 20 U.S.C. 1415(k)(1)(F)(i – iii).   

II.       “Thought-to-be.”

           The protections of the IDEA are not limited to students who are already eligible for special education services at the time of an incident for which a school district wants to impose discipline. A school district may also be limited by the protections of the IDEA where a student is thought-to-be eligible for special education services, but has not yet been found to be eligible by an evaluation. A Pennsylvnaia hearing officer recently addressed this issue in the case of In re: N.S., 21446-18-19AS. 

The student in that case was not yet found eligible for special education services at the time that an incident occurred. The hearing officer pointed out that the student need not be found eligible before the school district is required to provide him with the protections of the IDEA. “In addition to students who have already been identified as eligible for special education, students who have not yet been determined to be eligible may receive the disciplinary protections of the act where the parent expresses concern in writing concerning the child or request an evaluation of the child for special education. 34 C.F.R. § 300.534(b)(1) and (2)”, the hearing officer stated. 

The hearing officer also pointed out that, contrary to state regulations, that request need not specifically request an evaluation, but must simply express concern. The hearing officer stated that “the law is clear that a state may add but not subtract from IDEA’s protections and that if any protections are authorized by a state, they can be enforced through IDEA procedural safeguards. See, IZM v. Rosemount - Apple Valley – Eagan Public Schools, Independent School District No. 1, 863 F. 3d 966 (8th Cir. 2017).” Its important, then, for a student and a parent to be aware that these protections may be available and to request and evaluation or express concern when it becomes necessary. 

III.      A student’s particular disability affects the analysis.

Under the IDEA, a student’s eligibility for special education services depends on a determination that he or she has a disability, and that the student requires special education and related services as a result of that disability. The IDEA and its regulations provide several categories of qualifying disabilities. A student’s particular disability, as well as how that disability presents for that student, affect the manifestation determination analysis. The most common disabilities that lead to disciplinary issues are the categories of Emotional Disturbance (ED), and “Other Health Impairment” (OHI), which includes the diagnosis of AD/HD.

Emotional Disturbance. 

Emotional Disturbance is perhaps the most common disability which intersects with student discipline. An emotional disturbance may lead to aggressive or otherwise harmful behaviors. It is important to know the contours of the disability and the law. 

To qualify as an individual with an emotional disturbance, a person must exhibit characteristics of emotional disturbance “over a long period of time.” Lauren G. ex rel. Scott G. v. West Chester Area School Dist., 906 F.Supp.2d 375 (E.D. Pa. 2012), Citing 34 C.F.R. § 300.8(c)(4)(i). These characteristics are listed in the Code of Federal Regulations. The regulation states that:

(4)(i) Emotional disturbance means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child’s educational performance:

(A) An inability to learn that cannot be explained by intellectual, sensory, or health factors.

(B) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers.

(C) Inappropriate types of behavior or feelings under normal circumstances.

(D) A general pervasive mood of unhappiness or depression.

(E) A tendency to develop physical symptoms or fears associated with personal or school problems.

34 C.F.R. § 300.8(c)(4)(i).

Disciplinary issues such as fighting and aggression may be part of a particular student’s emotional disturbance. See Hansen ex rel. J.H. v. Republic R-III School Dist., 632 F.3d 1024, 1027 (8th Cir. 2011) (noting that a student’s four year history of being disciplined for fighting was evidence of that student’s emotional disturbance). Tracy v. Beaufort County Bd of Ed., 335 F.Supp.2d 675 (D. S.C. 2004) (stating that students with an emotional disturbance may demonstrate verbal aggression, physically assaultive behavior, authority conflicts, depression, despondency, mood swings, as well as other conduct). 

However, not all maladaptive behavior is attributable to an ED.  In the case of Fitzgerald v. Fairfax County School Board, 556 F. Supp 543 (E.D. Vir, 2008), the court considered whether a hearing officer erred in finding that a student’s emotional disturbance did not cause, or have a direct relationship to, conduct which resulted in his suspension from school. The student in that case, along with some friends, used paintball guns to shoot several targets at their school, including the school building, windows, and several school vehicles. Id. at 547. The student came up with the idea for the incident and drove his friends to gather the equipment and supplies they needed and then to the school. Id. When the school found that he was involved in the incident, it suspended him for the remainder of the year. Id. 

The student’s parents objected, filing a due process petition and claiming that the conduct was a manifestation of the student’s emotional disability. Id. at 548. The hearing officer, however, disagreed. Id. The student’s parents appealed to District Court. Id. 

The court looked at the underlying basis for the classification of ED. In that case, the court noted that the “primary basis for (the student’s) disability classification” was his anxiety. Id. at 561 – 62. The court looked to the student’s psychological evaluation to determine if he had any social or behavioral problems that led to his classification. Id. at 562. The court also looked to the student’s IEP to see whether it had any goals to address behavior similar to the incident. Id. 

Finally, the court considered that the student in that case played a prominent role in planning and executing the incident. Id. The incident lasted over several hours, including time to travel to different locations and obtain equipment. Id. The court concluded that the student “simply made a bad decision; he must now live with the consequences.” Id. 

Other Health Impairment.

AD/HD is a disability that can have an influence on behavior. The regulations include AD/HD in the definition for OHI. The regulations state:

(9) Other health impairment means having limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that—

(i) Is due to chronic or acute health problems such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, and Tourette syndrome; and

(ii) Adversely affects a child's educational performance.

34 C.F.R. § 300.8(c)(9).

A federal court has considered whether AD/HD was a manifestation of a student’s disability. See Williamson County Bd. of Ed. v. C.K., WL 499386 (M.D. Tenn. 2009). The court there upheld a hearing officer’s determination that a district wrongly determined that a student’s behavior was not a manifestation of his ADHD. Id. An expert psychologist testified that the fight that the student engaged in was a result of his impulsivity. Id. The court pointed out that AD/HD may result in impulsive behavior without foresight or thinking about the consequences. Id. The student in that case acted impulsively when he slapped and punched another student during an argument, the court pointed said. Id. 

A hearing officer for the Pennsylvania Office of Dispute Resolution came to a contrary conclusion in In re: N.M., 19752-17-18, holding that the impulsivity resulting from a student’s AD/HD did not have a direct and substantial relationship to the disciplinary infraction there. The hearing officer noted that the school team had all the appropriate documentation and consulted with the school psychologist. The psychologist in that case considered the symptoms of the student’s AD/HD and determined that the behavior was not a result of the disability. The hearing officer stated that the diagnosis of AD/HD alone did not mean that the student was unable to comply with adult authority and known rules of appropriate behavior. There must be more specific and direct evidence to show that the student was impeded in using appropriate judgment in view of the rules, according to the hearing officer. As a result, the manifestation determination was upheld.

The key to a manifestation determination is considering whether a student’s disability either caused or was substantially related to a student’s behavior. In that consideration, a school team must look at how a disability presents for that particular student. This involves looking at the student’s history and evaluation to determine how that student’s disability has manifested in the past.    

IV.      Conclusion.

A school district is given wide latitude to discipline students who violate its code of conduct. Where, however, a student is eligible for special education services, and that student’s behavior is a manifestation of that student’s disability, the protections of the IDEA apply, and limit the authority of the district. It is important for both parents, students and school districts to understand the law, its protections and its limitations.