It's Your Right:
The Law on Special Education Discipline
One of the most vexing problems faced by Texas educators is how to handle a
disruptive or potentially dangerous special education student.
Special education law
The Individuals with Disabilities Act (IDEA) is the primary law governing students who receive
special education services. Federal regulations interpret what school districts can and cannot do
to remain in compliance with IDEA. However, Texas has laws and regulations that further define
what districts must and must not do regarding special education students.
These rules require interpretation, which has led to a great deal of controversy
regarding how individual cases should be handled. But in general, special education law creates
the presumption that it isn’t fair to punish a student for actions the student couldn’t control
due to a disability. The law requires that students’ disabilities be taken into account in the
discipline decision-making process.
Student removal
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Only a special education student’s admission, review and dismissal (ARD)
committee can make a permanent change in that student’s placement in a school.
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There is no absolute limit as to how many days a
special education student may be removed from his or her current educational placement.
Although the original 10-day rule is no longer in effect, it is likely still a required district
practice to use that standard when deciding when an ARD should be called.
However, no later than 10 days after the child’s cumulative removals first exceed
10 days, the ARD must meet to: (1) conduct a functional behavior assessment if one has not been
done already, and (2) create or review the behavior intervention plan (BIP) for modifications to address the behavior.
The procedural protections of IDEA kick in when the removal would be considered a “change
in placement.” An ARD must be held if there is a change in placement, which is defined as:
(a) A single removal of more than 10 consecutive school days; or
(b) A series of removals that constitute a pattern because they
cumulate to more than 10 school days in a school year. Factors such as the length
of each removal, the total amount of time the student is removed and the proximity of the
removals to one another are also factors that contribute to a "pattern."
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When an ARD committee considers a student’s removal, it must consider whether
the behavior was caused by or had a direct and substantial relationship to the student’s
disability or whether it was caused by the district's failure to follow the student's
Individualized Education Program (IEP). If the committee
determines the behavior was not caused by one of the factors, the district can remove the student so long as similar behavior by a
regular education student would also result in that student’s removal. However, if the committee
determines the behavior was caused by or had a direct and substantial relationship to the
student’s disability or was caused by the district's failure to follow the student's IEP,
it must review the student’s BIP if one exists or create one if
appropriate. The ARD committee can also determine that a different placement would be
appropriate.
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Districts can place special education students in disciplinary alternative education programs
(DAEPs) only for conduct that would require regular education students to be expelled or placed
in a DAEP.
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A special education student must continue to receive appropriate services in the
new placement, including a DAEP.
Emergency situations
- A district can remove a special education student from his current placement for
up to 10 days without an ARD committee meeting.
- A district can remove a special education student from current placement for up
to 45 school days if it has clear and convincing evidence that the student:
• Possessed a weapon,
as defined by law, at school.
• Possessed illegal drugs at school.
• Inflicted serious bodily
injury at school or at a school-related function.
Discipline other than a
change in placement
- Generally, special education students who commit student conduct code infractions that don’t
rise to the level of an offense for which removal is appropriate should be disciplined according
to the regular code of conduct. The only exceptions are when the student has a BIP as part of
his IEP or when the behavior was a manifestation of the student’s
disability.
- The BIP outlined in the IEP governs the discipline techniques that can
be used with that particular student.
- If the ARD committee determines that the misconduct was caused by the
student’s disability or the district's failure to implement the IEP, then the student may not be
disciplined for that conduct. In this instance, only the ARD committee has the authority to
implement modifications in the student’s IEP or BIP (except for certain drug-, weapon- and
assault-related offenses).
Students’ rights
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IDEA requires districts to show there is a legitimate educational purpose before
changing special education students’ placement or educational programs.
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If a student’s parents disagree with a change, they can request mediation or a
hearing with the Texas Education Agency (TEA).
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If the parent disagrees with a proposed change, the district can still make the
change while the parent contests the decision. The old "stay put" rule no longer exists.
Other ways to address a student's behavioral
problem
If a student has persistent behavioral problems that are related to a behavioral
disability, the ARD committee should evaluate whether the district is providing sufficient
supplementary aids and services to enable the student to obtain an appropriate education. Efforts
to accommodate a student who has a behavioral disability could include the following:
- Development of a BIP specifically tailored to address the student’s particular disability.
- Training for the teacher in behavior intervention and behavioral disabilities.
- Consultation with a behavioral specialist regarding the student’s disability and
implementation of the student's BIP.
- Coordination of behavior intervention strategies among all personnel who work with the
student.
- Cooperation with the parents in terms of communication and follow-through on behavior
intervention.
- Counseling and psychological services for the student.
- Provision of an aide to assist with meeting the student’s needs.
- Instructional strategies provided by itinerant special education teachers or resource
classes.
- Reducing the ratio of students to instructional staff.
Working with parents
Special education law is designed to protect students’ rights; therefore, the parents of special
education students can be educators’ greatest allies or most difficult foes. Parents are often
dealing with personal issues that can lead to distrust of educators’ motives. For that reason it’s
especially important for educators to have the best relationships possible with students’
parents.
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Keep parents well informed of their child’s progress. A parent who
hasn't been informed about problems as they arise and therefore doesn’t know problems have existed for some time may feel you simply aren’t being patient. Also,
keep parents informed of all behavioral intervention techniques used with the student as wells
as the techniques'
effectiveness.
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When you have positive comments about the student, share them with the
student’s parents. This shows parents you are being fair and will make parents less likely
to become defensive when confronted with a problem.
Other tips
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Read each student’s IEP and BIP. These documents are “the law” as far as
that student is concerned and must be followed, even if you disagree with the services or
modifications. Every teacher dealing with a special education student is entitled to
relevant portions of that student’s IEP or BIP.
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Document your students’ progress and problems. Documentation shows the
extent of problems and how you have tried to solve them. Good documentation is essential because
when a change in a student’s placement is needed, the district must be able to prove the
change is
necessary.
Good documentation includes:
1. Description of the behavior
2. Any triggering influences
3. Steps taken to correct the behavior
4. The student’s reaction to the correction
5. Amount of time taken to handle the behavior and the frequency with which it occurs
6. Effect on the student's learning
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Keep both the parents and the administration informed of students’ discipline
problems. A teacher can’t make a change regarding a special education student on her own.
She needs the cooperation and assistance of both the administration and parent. If they’ve been
included and know the teacher has tried to make the situation work, they will be more likely to
support her opinion that a change is necessary.
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Request an ARD committee meeting when a change is needed. Only a
student’s ARD committee can change his placement, services or discipline management plan. A
teacher has the right to request an ARD committee meeting but can’t force the committee to
convene. This is another reason documentation is important: to convince the administration and
parents that an ARD committee meeting is needed.
___________________________
The legal information provided on this Web site is for general purposes only. It is not intended as a substitute for
individual legal advice or the provision of legal services. Accessing this information does not create an
attorney-client relationship. Individual legal situations vary greatly and readers should consult directly with an
attorney. Eligible ATPE members should contact the ATPE Member Legal Services Department using our
online system, MLSIS.
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