Video Summary: Code of Federal Regulations for Discipline

This video reviews the Code of Federal Regulations (CFR) regarding discipline under Title 34 of the Individuals with Disabilities Education Act (IDEA). As with all of our sections regarding CFR, we will excerpt various parts of the CFR so you can see the official documentation, after which we will provide explanations of those parts.

We’ve mentioned before that discipline is a particularly complicated section of the CFR, so we recommend you consult with an advocate or attorney even after going over this section. [Note: the symbol “§” stands for “section”, and “§§” stands for “sections.”]

§ 300.530 Authority of school personnel.

(a) Case-by-case determination. School personnel may consider any unique circumstances on a case-by-case basis when determining whether a change in placement, consistent with the other requirements of this section, is appropriate for a child with a disability who violates a code of student conduct.

(b) General. (1) School personnel under this section may remove a child with a disability who violates a code of student conduct from his or her current placement to an appropriate interim alternative educational setting, another setting, or suspension, for not more than 10 consecutive school days (to the extent those alternatives are applied to children without disabilities), and for additional removals of not more than 10 consecutive school days in that same school year for separate incidents of misconduct (as long as those removals do not constitute a change of placement under § 300.536).

(2) After a child with a disability has been removed from his or her current placement for 10 school days in the same school year, during any subsequent days of removal the public agency must provide services to the extent required under paragraph (d) of this section.

Part (a) states that any and all cases that go through the system are handled individually, and that the school district should take into account any specifics of the case or your child.

Part (b) describes how a child with a disability should be disciplined prior to ten days of suspension. If your child has not been removed from school (i.e. suspended) for ten or more days, then they are disciplined according to the school’s regulations for nondisabled students. Once the number of days suspended exceeds ten in a single school year, then your child’s discipline must be transferred over to a more specialized environment. Additionally, the school may not suspend your child for more than ten consecutive days without providing special education services every day after the tenth day.

(c) Additional authority. For disciplinary changes in placement that would exceed 10 consecutive school days, if the behavior that gave rise to the violation of the school code is determined not to be a manifestation of the child’s disability pursuant to paragraph (e) of this section, school personnel may apply the relevant disciplinary procedures to children with disabilities in the same manner and for the same duration as the procedures would be applied to children without disabilities, except as provided in paragraph (d) of this section.

If your child has been suspended for more than ten days, then the school must determine whether your child’s inappropriate behavior was caused by their disability through a process called a Manifestation Determination (more on that in this section). If they determine that your child’s disability did not cause their behavior, then they may discipline them according to the procedures they would use to discipline nondisabled children.

(d) Services. (1) A child with a disability who is removed from the child’s current placement pursuant to paragraphs (c), or (g) of this section must—

(i) Continue to receive educational services, as provided in § 300.101(a), so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP; and

(ii) Receive, as appropriate, a functional behavioral assessment, and behavioral intervention services and modifications, that are designed to address the behavior violation so that it does not recur.

(2) The services required by paragraph (d)(1), (d)(3), (d)(4), and (d)(5) of this section may be provided in an interim alternative educational setting.

(3) A public agency is only required to provide services during periods of removal 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 it provides services to a child without disabilities who is similarly removed.

(4) After a child with a disability has been removed from his or her current placement for 10 school days in the same school year, if the current removal is for not more than 10 consecutive school days and is not a change of placement under § 300.536, school personnel, in consultation with at least one of the child’s teachers, determine the extent to which services are needed, as provided in § 300.101(a), so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child’s IEP.

(5) If the removal is a change of placement under § 300.536, the child’s IEP Team determines appropriate services under paragraph (d)(1) of this section.

During the determination, the school must still provide your child with special education services, as well as a functional behavioral assessment to make sure that the inappropriate behavior does not happen again.

(e) Manifestation determination. (1) Within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct, the LEA, the parent, and relevant members of the child’s IEP Team (as determined by the parent and the LEA) must review all relevant information in the student’s file, including the child’s IEP, any teacher observations, and any relevant information provided by the parents to determine—

(i) If the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability; or

(ii) If the conduct in question was the direct result of the LEA’s failure to implement the IEP.

(2) The conduct must be determined to be a manifestation of the child’s disability if the LEA, the parent, and relevant members of the child’s IEP Team determine that a condition in either paragraph (e)(1)(i) or (1)(ii) of this section was met.

(3) If the LEA, the parent, and relevant members of the child’s IEP Team determine the condition described in paragraph (e)(1)(ii) of this section was met, the LEA must take immediate steps to remedy those deficiencies.

Part (e) gives us more information on the Manifestation Determination. In short, a Manifestation Determination is a an official meeting among the you (the parents/guardians), the IEP team, the school district, and the Local Education Agency (School) to determine whether your child’s inappropriate behavior was caused by their disability, by a failure on the part of the School, or by some other source. If the meeting determines that it was a failure by the School, then the School is responsible for fixing any problems that may have caused the inappropriate behavior.

(f) Determination that behavior was a manifestation. If the LEA, the parent, and relevant members of the IEP Team make the determination that the conduct was a manifestation of the child’s disability, the IEP Team must—

(1) Either—

(i) Conduct a functional behavioral assessment, unless the LEA had conducted a functional behavioral assessment before the behavior that resulted in the change of placement occurred, and implement a behavioral intervention plan for the child; or

(ii) If a behavioral intervention plan already has been developed, review the behavioral intervention plan, and modify it, as necessary, to address the behavior; and

(2) Except as provided in paragraph (g) of this section, return the child to the placement from which the child was removed, unless the parent and the LEA agree to a change of placement as part of the modification of the behavioral intervention plan.

If the meeting determines that it was in fact your child’s disability that caused the inappropriate behavior, then they are placed back in whatever classroom setting they were in before while the IEP team determines what changes in placement, setting, or equipment need to be made.

(g) Special circumstances. School personnel may remove a student to an interim alternative educational setting for not more than 45 school days without regard to whether the behavior is determined to be a manifestation of the child’s disability, if the child—

(1) Carries a weapon to or possesses a weapon at school, on school premises, or to or at a school function under the jurisdiction of an SEA or an LEA;

(2) Knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, while at school, on school premises, or at a school function under the jurisdiction of an SEA or an LEA; or

(3) Has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of an SEA or an LEA.

There are a few special circumstances wherein the school can remove your child from the regular classroom setting for up to 45 days without having to determine the cause of a behavior: if they brought a weapon to school, had or used drugs knowingly, or if they caused serious physical harm to someone else.

§ 300.531 Determination of setting.

The child’s IEP Team determines the interim alternative educational setting for services under § 300.530(c), (d)(5), and (g).

(a) General. The parent of a child with a disability who disagrees with any decision regarding placement under §§ 300.530 and 300.531, or the manifestation determination under § 300.530(e), or an LEA that believes that maintaining the current placement of the child is substantially likely to result in injury to the child or others, may appeal the decision by requesting a hearing. The hearing is requested by filing a complaint pursuant to §§ 300.507 and 300.508(a) and (b).

(b) Authority of hearing officer. (1) A hearing officer under § 300.511 hears, and makes a determination regarding an appeal under paragraph (a) of this section.

(2) In making the determination under paragraph (b)(1) of this section, the hearing officer may—

(i) Return the child with a disability to the placement from which the child was removed if the hearing officer determines that the removal was a violation of § 300.530 or that the child’s behavior was a manifestation of the child’s disability; or

(ii) Order a change of placement of the child with a disability to an appropriate interim alternative educational setting for not more than 45 school days if the hearing officer determines that maintaining the current placement of the child is substantially likely to result in injury to the child or to others.

(3) The procedures under paragraphs (a) and (b)(1) and (2) of this section may be repeated, if the LEA believes that returning the child to the original placement is substantially likely to result in injury to the child or to others.

This section covers how the appeal process for a Manifestation Determination works. This is one of the rare instances where both the parent and the school can appeal a decision. Specifically, the school can appeal the determination if they believe the child is still dangerous, and could cause serious harm in their current placement. You can appeal simply if you thought the decision was inappropriate or made poorly. We will cover how to make an appeal in a later section.

(c) Expedited due process hearing. (1) Whenever a hearing is requested under paragraph (a) of this section, the parents or the LEA involved in the dispute must have an opportunity for an impartial due process hearing consistent with the requirements of §§ 300.507 and 300.508(a) through (c) and §§ 300.510 through 300.514, except as provided in paragraph (c)(2) through (4) of this section.

(2) The SEA or LEA is responsible for arranging the expedited due process hearing, which must occur within 20 school days of the date the complaint requesting the hearing is filed. The hearing officer must make a determination within 10 school days after the hearing.

(3) Unless the parents and LEA agree in writing to waive the resolution meeting described in paragraph (c)(3)(i) of this section, or agree to use the mediation process described in § 300.506—

(i) A resolution meeting must occur within seven days of receiving notice of the due process complaint; and

(ii) The due process hearing may proceed unless the matter has been resolved to the satisfaction of both parties within 15 days of the receipt of the due process complaint.

(4) A State may establish different State-imposed procedural rules for expedited due process hearings conducted under this section than it has established for other due process hearings, but, except for the timelines as modified in paragraph (c)(3) of this section, the State must ensure that the requirements in §§ 300.510 through 300.514 are met.

(5) The decisions on expedited due process hearings are appealable consistent with § 300.514.

If you or the School request an appeal hearing, it’s usually expedited by the courts, and will happen within 20 school days after the appeal is filed. After the hearing, the officer in charge will have ten days to make their decision.  If you decide to go to mediation (where you and the school meet to discuss the issue at hand), then the hearing officer can delay their decision by seven days.

§ 300.534 Protections for children not determined eligible for special education and related services.

(a) General. A child who has not been determined to be eligible for special education and related services under this part and who has engaged in behavior that violated a code of student conduct, may assert any of the protections provided for in this part if the public agency had knowledge (as determined in accordance with paragraph (b) of this section) that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred.

(b) Basis of knowledge. A public agency must be deemed 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 pursuant to §§ 300.300 through 300.311; or

(3) The teacher of the child, or other personnel of the 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.

This section covers what happens if your child has not yet received special education services. If the school should have or did know that your child may have had a disability, then they can remove them from the classroom setting, but they must provide a reason for why they did not provide your child with special education services under the IDEA.

Reasons the school should have known that your child had a disability before the inappropriate behavior occurred include: if you (the parent) had expressed your concern about your child having a disability in writing or asked for an evaluation, and your child’s teacher or some other school official expressed concerns about your child having a disability. If either of these things happened before the inappropriate behavior, then the school could be at fault for the purposes of an appeal even if the child was not receiving special education services before the inappropriate behavior.

§ 300.535 Referral to and action by law enforcement and judicial authorities.

(a) Rule of construction. Nothing in this part prohibits an agency from reporting a crime committed by a child with a disability to appropriate authorities or prevents State law enforcement and judicial authorities from exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with a disability.

The IDEA does not override state criminal law, so if your child is charged with a criminal offense for bringing a gun to school, then the state can prosecute them regardless of the what the Manifestation Determination decides.

§ 300.536 Change of placement because of disciplinary removals.

(a) For purposes of removals of a child with a disability from the child’s current educational placement under §§ 300.530 through 300.535, a change of placement occurs if—

            (1) The removal is for more than 10 consecutive school days; or

            (2) The child has been subjected to a series of removals that constitute a pattern—

                        (i) Because the series of removals total more than 10 school days in a school year

(ii) Because the child’s behavior is substantially similar to the child’s behavior in previous incidents that resulted in the series of removals; and

(iii) Because of such additional factors as the length of each removal, the total amount of time the child has been removed, and the proximity of the removals to one another.

Here are a few quick definitions related to the ten-day counter. If a series of removals prove a pattern — that is, if there’s a single consistent reason your child is being suspended — or if they have a series of removals that add up to more than ten days, then the IDEA protections fall into place.

Title 18 § 1365

(3) the term “serious bodily injury” means bodily injury which
      involves –

(A) a substantial risk of death;
            (B) extreme physical pain;
            (C) protracted and obvious disfigurement; or

(D) protracted loss or impairment of the function of a bodily member, organ, or mental faculty; and
            (4) the term “bodily injury” means –
                        (A) a cut, abrasion, bruise, burn, or disfigurement;
                        (B) physical pain;
                        (C) illness;
                        (D) impairment of the function of a bodily member, organ, or mental faculty; or
                        (E) any other injury to the body, no matter how temporary.

Here are few more definitions for your personal reference. Remember that prosecution in cases where “serious bodily injury” is involved override the IDEA’s jurisdiction. The definition of “dangerous weapon” follows.

Title 18 U.S.C§ 930

(g) (2) The term “dangerous weapon” means a weapon, device, or instrument, material, 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.

Again, the CFR on discipline can be very difficult to navigate, so we suggest that you contact a child advocate or attorney to help you along the process. That said, if you understand the legal documentation involving your child’s specific case, you will be more informed during the proceedings, and be more able to ask relevant questions when necessary.