The principal knows the student is learning disabled, receives special education services under the Individuals With Disabilities Education Act and has no behavior accommodations in his individual education plan. According to the school district’s disciplinary code, possession or use of tobacco on school grounds carries a penalty of 10 school days in an off-campus disciplinary setting. The principal discovers in the student's disciplinary records that he was suspended on three occasions in the fall for a total of 10 days.

What action can the principal take for the latest violation of rules? Must the student’s individual education plan team be involved? Can the student be disciplined at all?

School administrators are faced routinely with issues concerning discipline of students with disabilities. Since June 1997, school districts have been required to comply with the reauthorized IDEA, which contained for the first time statutory requirements for discipline.

In many respects, these discipline requirements are inconsistent and ambiguous. The issuance of final regulations, in March of this year, was eagerly awaited in hopes of answering the lingering questions.

The portion of the regulations dealing with discipline present some surprising interpretations by interpreting IDEA in a more flexible manner. However, the regulations leave many situations involving discipline of disabled students to be monitored and analyzed by school personnel to determine if the IEP team needs to meet and take action.

If discretion and regulatory flexibility are not managed carefully, school personnel may inadvertently violate IDEA. Schools need to act now to put a system in place that will take advantage of the flexibility in the regulations while ensuring full protection for disabled students before a disciplinary change of placement takes place.

School personnel must comply with IDEA requirements when a disabled student commits a violation of school rules and the disciplinary consequence would result in a removal from the student's current educational placement. Removal from the current setting occurs when the youngster is sent home for the remainder of a school day, suspended, placed in a disciplinary setting on or off campus or expelled.

The regulations do not apply if the student’s IEP contains a behavior plan applicable to the misbehavior in question. These requirements also do not come into play if the student is assigned detention before or after school, a Saturday detention, corporal punishment or any other form of disciplinary consequence that does not result in the student being removed from his or her current educational placement. It is helpful in applying the regulations to think in terms of short-term removals for 10 school days or less and long-term removals for more than 10 school days at a time.

Any time school personnel propose a disciplinary consequence that would result in an IDEA student being removed from his or her current educational setting for more than 10 consecutive school days, a change of placement will occur. Under the new regulations, a series of short-term removals, each for 10 school days or less but totaling more than 10 school days in the aggregate may constitute a change of placement. Whenever a change of placement is proposed, the IEP team must meet to make certain decisions first.

In addition to the protections of the IDEA, special education students are entitled to all the procedural protections available to nondisabled students. State laws regarding discipline must be followed to the extent they do not conflict with the IDEA. Constitutional requirements regarding due process also must be followed. This layering of state law, constitutional law and IDEA requirements creates a confusing maze that school personnel must navigate carefully.

If a disabled student misbehaves and the usual disciplinary consequence would be removal of the student from his or her educational placement for 10 consecutive school days or less, school personnel may assign the disciplinary consequence for the same period of time applicable to a nondisabled student.

For example, if Student A, who is disabled, and Student B, who isn’t, are accused of fighting on school property and Student B receives a three-day suspension for his actions, Student A also may be assigned a three-day suspension. During the first 10 cumulative school days of removal in one school year, the school does not have to provide any educational services to the disabled student if nondisabled students would not receive educational services. Therefore, Student A could be suspended three times for three days each and once for one day in a school year without being entitled to any educational services other than what a nondisabled student would receive.

The regulations take a surprising stand by allowing school personnel to continue to remove a disabled student for disciplinary reasons for up to 10 school days at a time throughout the same school year for separate incidences of misconduct, so long as those removals do not constitute a change of placement and are penalties that would be applied to nondisabled students. The regulations point out that a series of disciplinary removals, each for 10 consecutive school days or less, may result in a change of placement and thus require IEP team action in the form of a manifestation determination review in certain cases.

Three factors must be considered in determining whether a series of short-term disciplinary removals results in a change of placement. The factors are: the length of each removal; the proximity of the removals to each other; and the total amount of time the student is removed from the educational setting.

It is critical that the school develop a monitoring system for each special education student who is assigned disciplinary consequences that include removal of that student from his or her educational setting. The purpose of the monitoring is to determine when a series of short-term removals results in a change of placement requiring IEP team action.

With regard to the student in possession of cigarettes, the principal or another designated person or group must consider the three factors to determine if the usual consequence of removal for 10 school days would constitute a change of placement in this specific case. If school personnel determine that the length of each removal (10 cumulative days in the fall and 10 days now proposed), their proximity to each other (fall semester and spring semester) and the total amount of time removed (20 days for the year) would result in a change of placement, then the IEP team must first perform a manifestation determination review with regard to the cigarette incident.

If they determine no change of placement will occur by instituting the 10-day removal, the disciplinary consequence could simply be assigned as it would be to any other nondisabled student.

However, beginning with the 11^th cumulative day of removals in a school year, educational services must be provided to the disabled student during all short-term removals. If it is determined that a subsequent short-term disciplinary removal does not constitute a change of placement, then school personnel, in consultation with a student's special education teacher, may determine the educational services necessary to meet a two-part standard: appropriate progress in the general curriculum and appropriate advancement toward achieving the IEP goals. The consultation should be documented.

If the series of short-term disciplinary removals does not constitute a change of placement, the IEP team does not have to perform a manifestation determination review. However, the IEP team, beginning with the 11^th day of cumulative disciplinary removals in a school year, must address behavioral issues.

Even though the current short-term disciplinary removal does not result in a change of placement, the IEP team must meet within 10 business days of first removing the student for more than 10 cumulative days in a school year to develop a plan to conduct a functional behavioral assessment, if one has not been conducted before the behavior that resulted in the removal.

After the functional behavioral assessment is completed, the IEP team must meet again as soon as feasible to develop a behavior intervention plan, otherwise known as a BIP, to address the behavior and implement the plan.

If the student's IEP already includes a BIP, then within 10 business days of first removing the student for more than 10 school days in a school year, the IEP team must meet to review the BIP and its implementation and modify the plan and its implementation, as necessary, to address the behavior.

If a student is assigned subsequent short-term disciplinary removals in a school year that do not result in a change of placement, the IEP team members, including the parent, must informally review the BIP and its implementation to determine if modifications are necessary. The school needs some method for documenting that the reviews have taken place.

The parent, as a member of the IEP team, must be reminded to informally review the BIP. If one or more of the IEP team members believe modifications are needed, the IEP team must meet formally to modify the behavioral plan and its implementation to the extent the IEP team deems necessary.

The practice of assigning multiple short-term disciplinary removals, up to 10 days each and cumulating to more than 10 days in a school year, gives school administrators more flexibility. They can assign short-term disciplinary removals over and over again during the school year for subsequent incidences of misconduct. So long as a series of short-term removals does not constitute a change of placement, the IEP team is not required to meet to do a manifestation determination review.

School administrators have much more flexibility in issuing disciplinary consequences to disabled students under this process. However, it is important that short-term disciplinary removals be tracked throughout the entire school year by some person or group of persons who have the responsibility for applying the three factors to determine if the series of short-term removals constitutes a change of placement.

The individual or group tracking the students must have the authority and feel comfortable in exercising that authority to require the IEP team to meet any time it appears that a short-term disciplinary removal will result in a change of placement.

If a disabled student misbehaves and the recommended disciplinary consequence would result in a removal from the current educational placement for more than 10 consecutive school days, this recommendation constitutes a change of placement. A change of placement also may occur as a result of a series of short-term removals. A change of placement may not take place without IEP team action first.

School personnel initially may institute a short-term removal while an IEP team meeting is being scheduled. At the time a decision is made to recommend a long-term removal, school personnel must notify the parents of that decision and provide a copy of the procedural safeguards under IDEA. Within 10 business days of the proposal to assign a long-term disciplinary removal, the IEP team and other qualified personnel must meet and perform a manifestation determination review, or MDR.

If there has been no previous functional behavioral assessment and creation of a BIP, the IEP team also must develop a plan to assess the student's behavior. As soon as practicable after the assessment is completed, the IEP team must meet again to develop and implement a BIP. If the IEP already contains a BIP, then the IEP team reviews the plan and its implementation and modifies it as necessary to address the behavior.

With regard to the MDR, the IEP team must look at information relevant to the behavior that is subject to discipline. The IEP team should consider such things as evaluations and diagnostic results, observations of the student, the student's IEP and placement and information from the parent.

The behavior is not a manifestation of the student's disability if the IEP team finds that, in relationship to the misbehavior:

• the IEP and placement were appropriate;
• the services in the IEP were actually provided;
• the disability did not impair the ability of the student to understand the impact and the consequences of the misbehavior; and
• the disability did not impair the ability of the student to control the misbehavior.

If the IEP team determines that any of these standards were not met, then the regulations indicate that the IEP team should determine that the misbehavior was a manifestation of the disability and no punishment may be assessed to the disabled student. If the IEP team identifies deficiencies in the IEP, placement or implementation of the program, it must take immediate steps to remedy these deficiencies.

If the IEP team determines that the misbehavior was not a manifestation of the disability, then regular disciplinary consequences may be applied to the student. However, the disabled student must continue to receive a free and appropriate public education.

School districts must realize that if misbehavior is not a manifestation of the student's disability, then the full range of disciplinary consequences that might be applied to a nondisabled student, including expulsion, are available for use with the disabled student. Educational services, however, cannot be completely cut off to the disabled student. The educational support services must meet the two-part standard discussed above.

As with any decision of the IEP team, the parent may request a special education due process hearing to challenge a finding that the misbehavior was not a manifestation of the disability or that the disciplinary placement is not appropriate. The stay-put provision of the IDEA applies, and a hearing before a special education hearing officer is expedited. The hearing officer applies the same standards as the IEP team in determining if the misbehavior is a manifestation of the disability.

Presumably, the hearing officer will determine whether the disciplinary placement provides a free and appropriate public education to the student and will enable the child to appropriately progress in the general curriculum and appropriately advance toward achieving the goals in the IEP. The specific standard to be applied by the hearing officer when the disciplinary placement is challenged is not specified in the IDEA or its regulations.

If the disabled student has committed a criminal act, school authorities may file charges with appropriate law enforcement authorities. The IDEA specifies that those law enforcement authorities are free to carry out their duties in enforcing the applicable law. The IDEA requires the school to provide special education and disciplinary records to the law enforcement authority to whom a crime is reported by the school. The records must be provided to the extent the disclosure is permitted by the Family Educational Rights and Privacy Act.

The general rule under FERPA is that educational records may not be disclosed to third parties without the written consent of the parent. This means the school must have the parent's written consent to disclose the records to law enforcement authorities.

Some exceptions exist to the requirement that written consent is required for disclosure. Two might apply in certain disciplinary cases: disclosure pursuant to a court order or subpoena or disclosure to authorities in a health and safety emergency. In most cases, however, these exceptions will not apply in student discipline matters. Therefore, to be in compliance with the regulations, school authorities must obtain the parent's written consent to disclose special education and disciplinary records to law enforcement authorities.

A disabled student may be accused of carrying a weapon to school or possessing, using or selling an illegal drug or controlled substance on school property or at a school function. IDEA defines a weapon as a firearm or anything capable of causing death or serious bodily injury. Pocket knives with a blade of 2½ inches or less are excluded from the definition.

Such misconduct is likely to result in a recommendation to remove that student from his or her current educational setting for more than 10 school days. Therefore, all of the requirements for a change of placement discussed previously would apply.

The key difference between a drug and weapon offense and other violations that would result in a removal for more than 10 days is that the IDEA has provided the IEP team with the option of removing the disabled student to an interim alternative placement for a limited period of time, presumably to allow the IEP team to complete any additional assessments and to permit parents to exercise their due process rights.

The IEP team can place the disabled student who commits a drug or weapon offense in an alternative interim placement for up to 45 calendar days, not school days. This 45-day placement must essentially recreate the IEP, although in another setting.

The 45-day alternative interim placement must meet these conditions:

• enable the student to progress in the general curriculum;
• enable the student to continue to receive those services and modifications that will allow him or her to meet the IEP goals, including those described in the student's current IEP; and
• include services and modifications designed to address the drug or weapon offense so it does not recur.

The student may be subject to multiple 45-day interim placements for separate drug and weapon offenses that may occur during a school year, according to commentary by U.S.

Department of Education staff on the regulations. The 45-day interim alternative placement may be completed even if the drug or weapon offense is found by the IEP team to be a manifestation of the disability. If the offense is determined not to be connected to the disability, regular disciplinary consequences can be applied in addition to the 45-day interim placement.

The parent may appeal any of the findings of the IEP team. The critical difference with regard to drug and weapon cases is that even though the parent may request an expedited hearing to challenge the decisions of the IEP team, the general stay-put rule of IDEA does not apply. The student continues in the 45-day alternative interim placement during the pendency of the hearing. If the 45 days expires and the hearing officer has not issued a final decision in the case, the student must return to his or her current placement, which is defined as the placement prior to the interim alternative educational setting.

If a disabled student commits a violent or dangerous offense and the IEP team has determined that the misbehavior is not a manifestation of the disability, the parent may request a hearing to block removal to the disciplinary setting. The general rule that the student stays in his or her current educational placement applies if the violation does not involve drugs or weapons, even though the offense may be a violent one.

School officials may believe that maintaining the student in his or her current educational placement would present a danger to the student or others. The IDEA contains a procedure for the school district to petition a hearing officer to remove the student to an alternative educational setting during the pendency of the hearing in such circumstances.

In an expedited hearing, the school has the burden of proof to show by more than a preponderance of the evidence that maintaining the child in the current placement is substantially likely to result in injury to self or others. The hearing officer also must:

• consider the appropriateness of the current placement;
• consider whether the school has made a reasonable effort to minimize the risk of harm in the current placement, including the use of supplemental aids and services;
• determine that the interim alternative setting proposed by the school personnel, in consultation with the special education teacher, enables the student to participate in the general curriculum; enables the student to continue to receive services and modifications that will permit him or her to meet the IEP goals; and includes services and modifications designed to address the behavior so that it does not recur.

This is an extremely heavy burden of proof for the school to assume. The school must present substantial and convincing evidence of the likelihood of injury.

If the hearing officer is persuaded that the standard has been met, then the hearing officer may order a change of placement to the interim alternative educational setting for up to 45 calendar days. If there has been no decision on the underlying special education due process issues by the time the 45-day period is up, the student would return to his or her current educational setting.

The process of requesting an expedited hearing to prove that the student presents a danger to self or others can be used multiple times by the school if the underlying due process hearing has not been resolved. If the hearing officer is convinced the burden of proof has been met, the hearing officer again may assign the student to another interim alternative placement for up to 45 days.

The regulations point out clearly what was in the reauthorized IDEA all along, but has been overlooked by many observers. In cases involving drug and weapon offenses, the IEP team may place the student in a 45-day interim alternative setting that meets the standards of basically recreating the student's IEP in another setting.

Should the parent challenge this decision, the hearing officer uses the same standards that would apply to a claim by the school that a student should be removed for 45 days to an interim alternative educational setting because the student is likely to injure self or others. In other words, the school has the burden of proof to show by more than a preponderance of the evidence that maintaining the child in the current placement is substantially likely to result in injury to self or others.

When viewed from this perspective, the use of the 45-day interim alternative setting by the IEP team in a drug or weapon case may very well be a trap. In contemplating whether to place the child in a 45-day interim alternative setting in a drug or weapon case, the IEP team needs to realize the standard that its decision will be held to if the parent challenges the use of the 45-day interim alternative setting in an expedited hearing before the hearing officer.

A regular education student subject to disciplinary consequences may claim that he or she should be treated as a special education student and provided all the procedural protections. This student will contend the school had knowledge of his or her disability before the misbehavior occurred for which the student is about to be punished.

Four ways exist in which a school can have knowledge that a student may have a disability:

* the parent has expressed concerns in writing to the school that the child needs special education, unless the parent is illiterate or has a disability that prevents the parent from creating such a writing;

the behavior or performance of the child demonstrates the need for special education; 
the parent has requested a special education evaluation; or 
the teacher or other school personnel have expressed concern to the special education director or has accessed the school's special education referral system on behalf of the child. 
The language of the IDEA created many questions over how broadly to interpret this portion of the statute. The regulations do little to answer these questions, with two exceptions. The regulations state that a school will not be considered to have knowledge that the student may be a student with a disability if the school has performed a comprehensive individual assessment and found the student does not qualify for special education services or the school has determined that an evaluation is not necessary and has provided notice of the procedural safeguards to the parent.

The process for disciplining disabled students, as interpreted by the final IDEA regulations, is complex. It is likely there will be many special education due process hearings regarding discipline in the next few years as the parameters of this process are defined in more detail. School officials must prove they complied with all of these requirements if they are to succeed in defending their actions.

Janet Horton is an education lawyer with Bracewell and Patterson, 711 Louisiana St., Suite 2900, Houston, Texas 77002. E-mail: jhorton@bracepatt.com. She is co-author of The 1999 IDEA Regulations: A Practical Analysis, published by the National School Boards Association.