In a Dear Colleague Letter issued on August 1, 2016, the Department of Education takes aim at addressing concerns about the discipline and behavior supports provided to students who qualify under the IDEA and suggests that shorter suspensions, while permissible under the IDEA, may in fact be an indication of a denial of a FAPE.
While the guidance does not change current law, it does argue quite forcefully that school districts should be hesitant to use the small number of days of expulsion that are permitted under the IDEA before a manifestation would typically be required, the ten day rule, and instead suggests that these type of incidents should be addressed through programming changes. Here are the highlights of what is included in the guidance.
First, the guidance notes that where a student engages in misbehavior or classroom disruption, including violations of the code of conduct, this may be indicative of a need for behavior supports in the IEP or, when such supports already are in place, a need to review and potentially revise the same.
The guidance, in discussing the review of such supports and interventions, notes the same must be supported by evidence that they are expected to be effective. Moreover, the guidance suggests that when possible, school districts consider using school-wide multi-tiered behavior support in order to ensure compliance with general LRE principles and to improve behavior in the entire school setting. In addition, the guidance argues strongly in favor of using programing to respond to behaviors rather than suspensions.
Next, the guidance notes that when a student is disciplined, this could be an indication of a denial of a FAPE when there is:
- a pattern of behaviors and the student is not receiving interventions,
- a series of shorter disciplinary removals for conduct that impedes learning, or,
- the student is not making progress on annual goals due to the disciplinary removals or a lack of behavioral supports.
When such situations exist, school districts are well advised to take action to correct the same.
Lastly, the guidance cautions about the use of other procedures that may not be called suspensions, but that the Department nonetheless views as suspensions. Such examples include: a pattern of office referral that leads to exclusion from instruction for extended periods of time, repeatedly sending students home for a day or sending them home early and causing them to miss instruction time, and repeatedly keeping students out of school with a condition for return, such as a risk assessment or psychological evaluation. The guidance does not address the issue of contacting law enforcement, but does note past guidance that notes they should not be involved in routine discipline.
Bottom Line for Schools
Schools should not be lulled into a sense of complacency that student discipline, even when within the bounds of IDEA, can be evidence of FAPE violation in the eyes of USDOE and parents’ attorneys. School entities should review their practices and procedures with respect to disciplining of special education students and behavior interventions to ensure compliance with the IDEA and the guidance above and be aware that the Department of Education is likely to be placing more focus on these issues.
If you should have any questions about this new guidance from the Department of Education, please contact your legal counsel or an attorney at KingSpry.
School Law Bullets are a publication of KingSpry’s Education Law Practice Group. It is meant to be informational and does not constitute legal advice. John E. Freund, III, is our editor.
