Overview
The reauthorized Individuals with Disabilities Education Act (IDEA), which was signed into law on Dec. 3, 2004, contains several changes affecting the discipline of students with disabilities. The IDEA 2004 final regulations, published on August 14, 2006, reflect discipline-related changes involving the consideration of “unique circumstances” in disciplinary actions; disciplinary removal due to “serious bodily injury”; provision of services during periods of disciplinary removal; notification regarding a discipline-related change of placement; “manifestation determination”; and discipline-related “basis of knowledge” for children not determined eligible for special education.
Discipline-related School Removals
Under IDEA, a free appropriate public education (FAPE) must be made available
to all children with disabilities between the ages of 3 and 21, inclusive, including
children who have been suspended or expelled from school, as provided in 34
CFR §300.530(d). See 20 USC §1412(a)(1) and 34 CFR §300.101(a).
Therefore, students with disabilities removed from their current placements
through suspension or expulsion must continue to receive educational services
so as to enable them to continue to participate in the general education curriculum,
although in another setting, and to progress toward meeting their Individualized
Education Program (IEP) goals. See 34 CFR §300.530(d).
Assessment in Disciplinary Settings
The Individuals
with Disabilities Education Improvement Act of 2004 (IDEA 04) Section 612 (a)(16)(A),
and associated regulations require children with disabilities to be included
in statewide assessments. Comments to the IDEA 04 regulations state that the
requirement to participate in statewide assessments “applies to children
with disabilities who have been placed in an appropriate interim alternative
education setting (IAES) or another setting, or who are suspended” (see
comments to 34 CFR §300.530(d) on page 46718). Students who have been removed
from their current placements for disciplinary reasons (i.e. suspended, expelled,
or otherwise assigned to an IAES or other setting) must participate in all general
state and district-wide assessments.
Therefore, students with disabilities who have been suspended or removed from their current placements to some type of alternative placement must take the state or district-wide assessment (unless the IEP provides that the student not take a district-wide assessment for reasons other than the disciplinary removal). In addition, students with disabilities assigned to Juvenile Justice Alternative Education Programs must take the state or district-wide assessment (unless the IEP provides that the student not take a district-wide assessment for reasons other than the disciplinary removal).
Based on the IDEA 04 statute, regulations and federal comments
to the regulations, districts should have policies and procedures in place regarding
participation in statewide and district-wide assessments of students with disabilities
placed in interim alternative education settings, including suspension to a
home environment.
Restraint and Time-Out
State regulations are intended to ensure that all students are treated with
dignity and respect, as well as educated in a safe environment. Behavior management
techniques and /or discipline management practices must be implemented in such
a way as to protect the health and safety of the students and others. When the
use of physical restraint or time-out is necessary, the state has outlined specific
requirements and procedures (see TEC
37.0021 and TAC 89.1053
for further guidance).
Students not Determined Eligible for Special Education
(“Basis of Knowledge”)
Students not determined eligible for special education may receive protections
for disciplinary purposes under IDEA when a parent has submitted in writing
to school personnel their concerns regarding the child’s need for special
education and related services (34 CFR §300.534).
A school is considered to have knowledge that a child is a child with a disability if before the behavior that precipitated the disciplinary action occurred: 1) the parent of the child expressed concern in writing to supervisory or administrative personnel of the appropriate educational agency, or a teacher of the child, that the child is in need of special education and related services; 2) the parent of the child requested an evaluation of the child; or 3) the teacher of the child, or other personnel of the Local Education Agency (LEA), expressed specific concerns about a pattern of behavior demonstrated by the child directly to the director of special education of the agency or to other supervisory personnel of the agency.
A school would not be considered to have knowledge under IDEA if the parent of the child has not allowed an evaluation of the child or has refused services under IDEA; or if the child has been evaluated and determined to not be a child with a disability under IDEA.
State Resources
National Resources
Technical Assistance and Training
Texas Education Agency | Division of IDEA Coordination
1701 North Congress Avenue | Austin, Texas 78701-1494
Telephone: 512.463.9414 | Fax: 512.463.9560
Created: August 1, 2008
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