A. Distinct and Additional Standards

There is no doubt that school officials, as well as parents, chafe under the special protections afforded to those students identified with disabilities who jeopardize school safety by the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. 1400 et seq.. Some school administrators virulently complain about what they consider to be a "dual standard".⁽¹⁾ This predicament was not lost on members of Congress who drafted and passed the recent 1997 IDEA Amendments. The Joint Committee report to the bill addressed the issue as follows: "There has been considerable debate and concern about both if and how those few children with disabilities who affect . . . school safety. . . may be disciplined when they engage in behaviors that jeopardize such safety. In addition, the committee is aware of the perception of a lack of parity when making decisions about disciplining children with and without disabilities who violate the same school rule or code of conduct. By adding a new section 615(k) to IDEA, the committee has attempted to strike a careful balance between the LEA's duty to ensure that school environments are safe and conducive to learning for all children, including children with disabilities and the LEA's continuing obligation to ensure that children with disabilities receive a free appropriate public education."

B. The Honig Decision and Emphasis on "Stay Put".

In its comments to the 1997 amendments, the Committee made clear its adherence to the standards enunciated by the U.S. Supreme Court in Honig v. Doe, 484 U.S. 305 (1988), which protected the right of a student to remain in an educational placement pending a due process proceeding or other proceeding affecting potential placement.. Honig involved an attempt by a school district to suspend indefinitely two students classified emotionally disturbed who had committed repetitive and disruptive behavior. The Supreme Court upheld a lower court's order enjoining the district from doing so, opining that the IDEA's predecessor statute meant to prevent school districts from excluding children with disabilities, especially those with behavioral or emotional disabilities. Honig, 484 U.S. at 324. The Court rejected argument that an "emergency" exception existed to the stay put provisions for disabled students who might be disruptive or violent. Stated the Court: "Congress very much meant to strip schools of the unilateral authority they had traditionally employed to exclude disabled students, particularly emotionally disturbed students, from school." Id. at 323. The Court did approve an expedited, judicial process in which districts could seek injunctive relief to remove students for more than 10 days upon demonstrating that exercise of the "stay put" provision "...would be substantially likely to result in injury to the student or others."Id. at 328.

The IDEA provision, known as the right to "stay put", provides: "Except as provided in subsection (k)(7) [referring to two grounds for long-term discipline], during the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement, or, if applying for initial admission to a public school, shall, with the consent of the parents, be placed in the public school program until all such proceedings have been completed. 20 U.S.C. 1415(j)." Under that provision, a parent has a right to request due process or mediation to contest removal for a long-term suspension or expulsion while the disabled student remains in the current educational placement. Determination of what constitutes a short-term as opposed to long-term suspension (and hence a change in placement) is key to determining procedural requirements of the suspension process, as well as the nature of educational services to be provided. 20 U.S.C. 1415(k)(1)(a)(i) provides: "School personnel under this section may order a change in placement of a child with a disability to an appropriate interim alternative educational setting, another setting or suspension for not more than ten (10) school days." While a suspension of ten or less school days in a school year will certainly be considered "short-term" for purposes of this analysis, suspensions totaling, in the aggregate, more than 10 days in a school year may be problematic.

C. When Is a "Short-Term" Suspension Considered "Long-Term"?

The importance of characterization in this area is crucial to determining the substantive and procedural rights of the student with disability, as any "long-term" suspension will be considered a change in placement and trigger greater procedural protections for the student. Recently adopted regulations implementing the 1997 amendments to the IDEA provide at 34 C.F.R. 300.121(d)(1): "A public agency need not provide services during periods of removal under 300.520(a)(1) to a child with a disability who has been removed from his or her current placement for 10 school days or less in that school year, if services are not provided to a child without disabilities who has been similarly removed." Thus, a student subjected to a short-term suspension will not be entitled to educational services; a functional behavioral assessment (FBA); development of or review of an existing behavior intervention plan (BIP) or a manifestation determination. A short-term suspension is defined as those of "10 school days or less" in a school year and additional removals of 10 or less days in the same year for separate incidents of misconduct, as long as the removals beyond the first 10 days are not a pattern of exclusion. See 20 U.S.C. 1415(k)(1)(A)(i); 34 C.F.R. 300.520(a)(1)(i).⁽²⁾ A change of placement for disciplinary removals under the implementing regulations ". . .occurs if (a) the removal is for more than 10 consecutive school days or (b) the child is subjected to a series of removals that constitute a pattern because they cumulate to more than 10 school days in a school year, and because of factors such as the length of each removal, the total amount of time the child is removed, and the proximity of the removals to one another. 34 C.F.R. 519(a)-(b). What may constitute "separate incidents" and/or "a pattern of exclusion", is left to the particular facts involved and entails the mature judgment/good faith of school officials and parents. See 34 C.F.R. 501(a)(2).

D. Change in Placement and Necessary Procedures/Services.

Whenever a district imposes a series of suspensions in excess of 10 school days or a suspension of more than 10 consecutive school days (i.e. a change in placement), the IEP team is required to meet within 10 business days after the eleventh day of removal and either (1) develop an assessment plan, and then implement same through a BIP as soon as is practicable, or (2) review implementation of an already existing BIP and make necessary modifications. Should there be additional suspensions, the IEP team need not meet, unless there is a change in placement or an IEP member requests such a BIP meeting. See 34 C.F.R. 300.520(c)(1)-(2). A "manifestation determination" (See 20 U.S.C. 1415(k)(4)(A); 34 C.F.R.300.523(a)(2)) also must be accomplished by the IEP team. These distinct requirements may be performed at one or more meetings, according to 34 C.F.R. 300.523(e). They come into play whenever there is a change of placement, as well as in two specific categories. One category involves a change in placement when a student brings a weapon to school or a school function or knowingly uses, possesses, sells or solicits illicit drugs while at school or a school function. See 34 C.F.R. 300.520(a)(2)(i)-(ii). The second category involves a change in placement imposed following an emergency hearing before an Administrative Law Judge in which a school district proves by substantial evidence that the student with a disability is substantially likely to cause injury to himself or others in his current educational placement (the Honig analysis). See 34 C.F.R. 300.521(a).

The Manifestation Determination and Other Procedures

A district may expel or suspend a student with a disability on a long-term basis only if the conduct for which the discipline is imposed is not caused by or substantially related to the disability. The determination must be made by the IEP team at a meeting in which all relevant information must be considered. Section 300.523(c)(1) provides: "In carrying out a [manifestation] review. . . ,the IEP team and other qualified personnel may determine that the behavior of the child was not a manifestation of the child's disability only if the IEP team and other qualified personnel (1) first consider, in terms of the behavior subject to disciplinary action, all relevant information, including-- (i) Evaluation and diagnostic results, including the results of other relevant information supplied by the parents of the child; (ii) Observations of the child; and (iii) The child's IEP and placement;. . .. The IEP team must then make three positive determinations: (1) that, in relation to the behavior subject to disciplinary action, the child's IEP and placement were appropriate and the special education services, supplementary aids and services, and behavior intervention strategies were provided consistent with the child's IEP and placement; (2) that the child's disability did not impair the ability of the child to understand the impact and consequences of the behavior subject to disciplinary action; and (3) that the child's disability did not impair the ability of the child to control the behavior subject to disciplinary action. See 34 C.F.R. 300.523(c)(2)(i)-(iii). Should any of these not be satisfied, "...the behavior must be considered a manifestation of the child's disability" (34 C.F.R. 300.523(d)), and a long-term suspension or change in placement may not be imposed.

In the case of possession of a weapon/ possession or use of illegal drugs, the district may impose a removal to an appropriate interim alternative educational setting for not more than 45 days. 20 U.S.C. 1415(k)(1)(A)(ii)(1)-(11); 34 C.F.R. 300.520(a)(2)(i)(ii) The IEP team with parental input must determine an appropriate interim setting which will enable the child to progress in the regular school curriculum while in the alternate placement and to continue to receive the services in the student's current IEP. 34 C.F.R. 300.522(b)(1). In a case in which the IEP team determines the behavior was a manifestation of the disability, appropriate changes to the IEP, including a change in placement through the IEP process, should be considered and implemented.

In the second specific category in which a change in placement may be imposed, a district may seek an order from a state Administrative Law Judge following an emergency due process hearing in which the ALJ may order placement of the student with disability in an interim alternative educational institution for not more than 45 days. The district must prove by substantial evidence, meaning beyond a preponderance of evidence, that the child is substantially likely to cause injury to himself or others in the student's current educational setting. See 20 U.S.C. 1415 (k)(2)(A). The ALJ must consider, as well, the appropriateness of the student's current placement; whether the public agency has made reasonable efforts to minimize the risk of harm in the current placement, including the use of supplementary aids and services; and whether the interim alternative educational setting being proposed by the district meets prescribed qualifications for such a setting. 34 C.F.R. 300.521(a)-(d). Should the district not establish compliance with its legal responsibilities, the ALJ may not permit removal to the interim educational setting. In such an instance, the appropriate remedy might be changes in the student's IEP, including provision of additional related services and specific behavioral modification techniques. In any interim alternative educational placement, the student will return to his prior placement unless there is an agreement to continue same or an extension is imposed by court order.

E. Appeal of Change in Placement By Parent.

A parent/guardian may decide to request a due process hearing and seek emergent relief to oppose any interim educational setting. A parent may seek review of a manifestation determination of the IEP team or a determination by school officials that a disciplinary removal is not part of a series or pattern of exclusion. The parent also may seek to overturn a unilateral long-term exclusion in which the district did not receive an order from an ALJ or any perceived noncompliance with IDEA procedures.

A parent's primary concern during the appeal process will be the student's placement, as well as the level of services to be provided. A student with disabilities remains in his current educational placement (i.e. the placement prior to suspension) pending challenge to a manifestation determination while the due process hearing process is pending. See 34 C.F.R.300.524(c). If a student is placed in a 45-day interim educational setting by order of an ALJ due to the student's dangerousness to himself or others or due to possession and/or use of illegal drugs or possession of weapons, the student will remain in the interim placement while the parent/guardian contests the interim setting or the manifestation determination. The placement will continue until the expiration of the 45 days or a decision by the ALJ on the appeal itself, unless the district and parent agree on the outstanding issues. See 20 U.S.C. 1415(k)(7)(A); 34 C.F.R. 300.526(a).

At the conclusion of the 45-day interim placement, a parent may seek due process to contest a new educational placement of the student. Here, the student ordinarily will be returned to the educational program which existed prior to the 45-day removal (20 U.S.C. 1415(k)(7)(B); 34 C.F.R.300.526(b)), unless the district, through an emergent application to an ALJ, is successful in demonstrating that the child, pursuant to the provisions of 34 C.F.R.300.521(a)-(d) is "substantially likely to cause substantial injury" and that an additional 45-day placement in the interim educational setting is, therefore, appropriate. 34 C.F.R. 300.526(c)(1)-(3).

F. Students Not Eligible for Special Education.

In many instances, students have not been identified as being eligible for special education services at the time they become known to school officials due to behavioral or disciplinary problems. It is not very well known that such students may, nevertheless, be entitled to all of the IDEA protections if the school district knew or should have known that the child was a child with a disability. See 20 U.S.C. 1415(k)(8). The district's knowledge of the child's disability must have arisen or should have arisen prior to violation of school rules or the school code. Id. Section 500.527(b) of the recently enacted regulations implementing the 1997 amendments to IDEA provides that an LEA will be deemed to have knowledge that a child is a child with a disability if (1) the parent of the child has expressed concern in writing or orally, under certain circumstances, to school personnel that the child needs special education and related services; (2) the behavior of the child demonstrates need for special services; (3) the parent has requested evaluation of the child pursuant to 300.530-300.536; or (4) the teacher of the child, or other school personnel, has expressed concern about the behavior of the child to the director of special education of the agency or to other personnel in accordance with the agency's established child find or special education referral system. Should evaluation be requested when the student may be subjected to discipline, the evaluation must be conducted in an expedited manner. The child will remain in the educational placement determined by the district, including suspension or expulsion without educational services. See 20 U.S.C.300.527(d)(2)(i)-(ii). If it is determined that the child is a child with a disability, the district must provide FAPE to the student per the IDEA's discipline procedures (20 U.S.C.1415(k)(8)(C)(ii); 34 C.F.R.300.527(d)(2)(iii)). A manifestation determination will be required and, if the behavior leading to the long-term suspension or expulsion were a manifestation of the student's disability, the district must revoke the discipline and reinstate the student to his prior placement or to a new, appropriate placement. If the behavior were not a manifestation of a disability, the district may continue any suspension, but must provide FAPE pursuant to 20 U.S.C. 1412(a)(1)(A) and 34 C.F.R. 300.121(d)(3)(ii).

CONCLUSION

The IDEA and implementing regulations require school staff to sharpen their understanding of disciplinary procedures affecting classified students and students eligible for classification. "Stay put" is still very much alive and districts must ensure they comply with new procedures which govern long-term suspensions, i.e., those of more than 10 consecutive school days or numbering more than 10 school days per school year which constitute a pattern of exclusion. In such cases, the district IEP team must develop and implement an FBA, develop or review an existing BIP and make a manifestation determination. District personnel must be especially sensitive to the standards governing the manifestation review. Staff must be fully cognizant of the specific findings which must be made before determining that inappropriate or violent behavior was not a manifestation of the student's disability. Finally, districts must be aware that the procedural due process afforded special education students may be extended fully to those students not currently classified but who, nevertheless, may have an educational disability of which the district knew or should have known prior to occurrence of the disciplinary incident involved.