On July 19, 2022, the U.S. Department of Education announced the release of new guidance from its Office for Civil Rights (OCR) and Office of Special Education and Rehabilitative Services (OSERS) discussing public elementary and secondary schools’ responsibilities in meeting the needs of students with disabilities and avoiding discriminatory use of student discipline under Section 504 of the Rehabilitation Act and the Individuals with Disabilities Education Act (IDEA). The Department’s press release notes that these guidance documents are “the most comprehensive guidance on the civil rights of students with disabilities concerning student discipline and build on the Department’s continued efforts to support students and schools through pandemic recovery.”

Both guidance documents emphasize that “schools need not choose between keeping their school community—including students and school staff—safe or complying with the law” and that neither law interferes with a school’s ability to address extraordinary situations in which a student’s behavior, including disability-based behavior, is an immediate threat to their own or others’ safety, such as by contacting crisis intervention specialists or law enforcement. However, the Department also emphasizes continued concern with the notable disparities in the use of discipline for students with disabilities as compared with their nondisabled peers and expresses an urgent need for states and local education agencies to improve implementation of Section 504 and IDEA so that all eligible students with disabilities are served appropriately and equitably.

The guidance documents provide extensive summaries of the procedural protections under Section 504 and the IDEA related to the discipline of students with disabilities and serve as a good primer or resource for those responsible for implementation. For instance, both documents provide an explanation of when discipline constitutes a “change of placement” such that a manifestation determination review (MDR) is required, how to do the MDR analysis, and the actions teams may consider following the MDR.

Both documents also emphasize the importance of positive behavior supports to address students’ disability-related behaviors and provide a free and appropriate public education (FAPE), including the use of functional behavior analyses (FBA) and behavior intervention plans (BIP). Further, the frequent use of discipline for students with disabilities may indicate a need for the 504 or IEP team to reconvene to determine if the students’ 504 Plan or IEP is being implemented consistently, whether the student needs different or additional supports to address their behavioral needs, and whether a new evaluation is warranted. The failure to do so can lead to a denial of FAPE.

Finally, both documents warn that “informal removals” can cause a school to be out of compliance with Section 504 and/or the IDEA, noting that many schools implement removals that are not documented as suspensions but nonetheless remove a student from their educational placement as a means of discipline. Examples include shortening a student’s school day (outside the purview of the 504 or IEP team); requiring a parent to pick a student up early or accompany a student on a field trip; or informing a parent that the student will be suspended or expelled unless they agree to a transfer, shortened day, or remote instruction. The use of informal removals may lead to legal violations if the school does not realize that the disciplinary procedural protections have been triggered or if the 504 or IEP team does not have needed information about the student’s behaviors to make informed decisions about FAPE.

OCR’s Supporting Students with Disabilities and Avoiding the Discriminatory Use of Student Discipline under Section 504 of the Rehabilitation Action of 1973.

In addition to providing an outline of the legal requirements related to the discipline of students protected by Section 504, the following are some noteworthy highlights from the guidance:

• OCR specifies that students who are eligible under IDEA are also eligible under Section 504, so both documents are relevant to those students.
• Section 504 requires an evaluation prior to a change of placement. OCR explains that in the context of a proposed disciplinary change of placement, the “evaluation” is the MDR.
• In the context of harassment, OCR explains that while an MDR is pending, schools should consider providing supportive measures to the other student as well as moving the offending student to a different class if that can be done within the same educational placement. Additionally, in emergency circumstances, a school could do a short-term removal prior to the MDR even if the student was then suspended for more than 10 days over the course of the school year—though OCR would closely scrutinize such circumstances.
• If a student’s behavior is a manifestation of their disability, the 504 team can and should put supports in place to address behavior, which could include a change of placement (in contrast with students eligible under IDEA, which requires parental consent to a change of placement in such circumstances). OCR further explains that the student’s impact on the learning and safety of other students is an appropriate consideration for the team when determining placement.
• Finally, OCR reviews that Section 504 prohibits schools from unnecessarily treating a student differently on the basis of disability (such as imposing a harsher consequence for comparable behavior) and requires schools to make modifications to policies, practices, and procedures that result in unjustified discriminatory effects based on disability. Statistical evidence about discipline of students with and without disabilities is relevant to OCR’s analysis of whether a school is complying with Section 504

OSERS’s Questions and Answers: Addressing the Needs of Children with Disabilities and IDEA’s Discipline Provisions

In addition to an extensive overview of the legal requirements of the IDEA related to the discipline of students with disabilities, the following points merit particular note:

• In reviewing the requirements related to conducting an MDR for a student who is not yet eligible under IDEA (when the school is deemed to have knowledge that the student is a “child with a disability”), OSERS explains that the IEP team should review available information to determine if the behavior was caused by or had a direct and substantial relationship to the suspected disability, but that the IEP team is unable to determine whether the conduct was a direct result of the school’s failure to implement the (nonexistent) IEP—this is consistent with prior guidance. The Q&A, however, adds that an improper or unreasonable delay in determining eligibility and developing and implementing an IEP could be considered a failure to implement the IEP for purposes of the MDR.
• In a footnote, OSERS notes that its prior guidance described an FBA as an individualized evaluation that required parental consent and could be the predicate for an independent educational evaluation (IEE), but that a recent case in the U.S. Court of Appeals for the Second Circuit disagreed. OSERS intends to review its position on the status of FBAs, but as of now has not articulated a new interpretation.
• OSERS also highlights the responsibilities of states to collect and disaggregate data related to the discipline of students with disabilities, including identifying districts with a significant discrepancy or significant disproportionality in the discipline of students with disabilities relative to students without disabilities as well as related to race and ethnicity.
• In an effort to support and promote alternative strategies that schools can use in place of aversive practices or exclusionary discipline, OSERS also published the Positive, Proactive Approaches to Supporting Children with Disabilities: A Guide for Stakeholders.

Should you or your team have any questions about your school’s obligations in addressing discipline for students with disabilities, please reach out to the authors of this post or any member of our special education team.