Additional Protections from Formal Discipline for Students with Disabilities

By: Emma Freeburg, DRAZ Legal Intern (Summer 2021)*

This blog post is part of an eight-part series on school discipline. The last blog post introduced the idea that children with disabilities have specific protections when it comes to school discipline. Those protections vary depending on whether the school has identified the student as a person with a disability at the time of the conduct and if so, whether the student has an Individualized Education Program (IEP) or a 504 Plan. Today’s blog post summarizes the protections that exist for students in each situation.

Rights when the student has an IEP

• The school must hold a Manifestation Determination Review (MDR) within 10 school days of the decision to remove (long-term suspend or expel) the student. [1]
  • At the MDR, the IEP Team determines whether the student’s behavior was a “manifestation” of the student’s disability.
• If the MDR determines that the student’s behavior was a “manifestation” of the student’s disability, the school may not remove the student from school except as explained below.
• If the MDR determines that the student’s behavior was not a “manifestation” of the student’s disability, the suspension or expulsion proceeds as originally proposed.
• Even if the MDR determines the behavior was not a manifestation of the student’s disability, the school must still provide the student with the special education and related services specified in their IEP in an interim alternative educational setting (IAES) during the disciplinary removal.

Rights when the student has a 504 Plan

• The school must hold a MDR within 10 days of the decision to remove the student.
• If the MDR determines that the student’s behavior was a “manifestation” of the student’s disability, the school may not remove the student from school except as explained below.
• If the MDR determines that the student’s behavior was not a “manifestation” of the student’s disability, the suspension or expulsion proceeds as originally proposed.
  • Under 504, unlike the IDEA, the school does not have to provide the student with educational services during the disciplinary removal.

Rights when your child has a known disability but the school has not found them eligible under IDEA or Section 504

• The MDR protections described above can apply to students who do not have an IEP or 504 Plan if the school had knowledge that the student had a disability before the behavior that led to the disciplinary action took place.
• A student/parent can prove that a school had knowledge that the student had a disability if:
  • (1) the parent expressed concern in writing to supervisory or administrative personnel of the school that the student was in need of special education and related services;
  • (2) the parent requested an evaluation of the student; or
  • (3) a teacher or other school personnel expressed specific concerns about a pattern of behavior demonstrated by the student directly to the director of special education or other supervisory personnel of the school. [2]
• However, the school is not considered to have had knowledge of the child’s disability if the parent of the child refused to consent to an evaluation of the child in the past, or if an evaluation has been conducted and the child was found not to have a disability.
• If a child without an IEP or 504 plan is facing school discipline, and the parent is unable to prove the school had knowledge of the child’s disability before the inciting incident occurred, the student or parent can request that the school conduct an expedited evaluation of the student during their disciplinary removal to determine if they may have an eligible disability. However, during the disciplinary removal, the school is not required to provide the child with any other educational services.

There are key exceptions to these discipline protections. When a student’s behavior involves a dangerous weapon, illegal drugs, or serious bodily injury to another person, the school can remove the student from school, even when the student’s behavior was a manifestation of their disability. [3] These exceptions are limited by the following definitions:

• “Dangerous weapon” means a weapon, device, instrument, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2 1/2 inches in length. [4]
• “Illegal drug” means a controlled substance, but does not include one that is legally possessed or used under the supervision of a licensed health-care professional or that is legally possessed. [5]
• “Serious bodily injury” involves a substantial risk of death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty. [6]

When these instances apply, the school can remove the student to an IAES for no more than 45 school days, without having to conduct a MDR first. Whether the student is entitled to receive special education services in the IAES depends on if the student has an IEP or a 504 Plan.

Check back soon for another blog post that provides more detail on the MDR process, explains why these meetings are important, and gives information on how to prepare for them.

[1] 34 C.F.R. § 300.530 (e)(1). We will go over MDRs in more detail in our next post.

[2] 34 C.F.R. § 300.534 (b)

[3] 34 C.F.R. § 300.530 (g)

[4] 18 U.S.C. § 930 (g)(2)

[5] 34 C.F.R. § 300.530 (i)(2)

[6] 18 U.S.C. § 1365 (h)(3)

*Emma Freeburg is a law student at the Sandra Day O’Connor College of Law at Arizona State University. Emma completed a legal internship with DRAZ during the summer of 2021. This blog post has been reviewed by DRAZ Legal Director Rose Daly-Rooney and DRAZ Education Team Managing Attorney Amanda Glass.