This is a constant area of difficulty and dispute. Many school administrators just cannot get it through their heads that punitive punishment is not the appropriate response to behavior caused by a student’s disability! Hopefully this new guidance will serve as a reminder that it is illegal for schools to punish kids for manifestations of their disability. Instead, they have to come up with a plan for how to help accommodate the disability — i.e., to help the child improve their behavior while continuing to provide them with equal access to the services and programs offered to nondisabled peers.
The new guidance is available here: https://www2.ed.gov/about/offices/list/ocr/docs/504-discipline-guidance.pdf
Some choice tidbits:
- Many students with disabilities face discipline because they are not receiving the support, services, interventions, strategies, and modifications to school or district policies that they need to manage their disability-based behavior.
- Schools may be familiar with a functional behavioral assessment (FBA) from the context of the IDEA. An FBA focuses on identifying the function or purpose behind a child s behavior.
- Section 504 teams can consider using information obtained through a behavioral assessment to proactively develop and implement a behavioral intervention plan. A BIP identifies behavioral supports to reduce or eliminate, and often replace, those behaviors that interfere with the student s or other students ability to learn.
- A BIP should include information about: acceptable replacement behaviors, who will teach the student to use those behaviors and how, what staff should do to support the student if the behavior of concern recurs, and how the Section 504 team will monitor and measure the BIP s implementation and effectiveness. Schools may not rely on stereotypes, generalizations, or assumptions about a student s disability, race, color, national origin, or sex.
- Section 504 requires that a school district educate a student with a disability in an academic setting alongside students without disabilities to the maximum extent appropriate. The same is true for the provision of nonacademic services and participation in extracurricular activities. A school district would violate Section 504 if it had a one-size-fits-all policy that required students with a particular disability to attend a separate class.
- Schools are prohibited from implementing a disciplinary removal of a student with a disability that constitutes a significant change in placement without first conducting the manifestation determination. In some instances schools may need to expedite the manifested determination to avoid violating Section 504 FAPE requirements. If a school removes a student for more than 10 school days without completing the evaluation required, the school would need to correct the failure to comply.
- The Section 504 team determines whether the behavior in question was caused by or has a direct and substantial relationship to the student s disability. The school must provide relevant information from a variety of sources sufficient to enable the team to determine if the student’s behavior is based on his disability.
- The school is prohibited from carrying out any discipline that would exclude the student on the basis of disability. A finding that the student engaged in disability-based behavior in violation of a school rule could be one reason to believe the student s placement may be inappropriate.
- Some schools informally issue or propose a disciplinary removal in response to a student s disability-based behavior. Informal exclusions are subject to the same Section 504 requirements as formal disciplinary removals. The school must comply with the requirements pertaining to evaluation, placement, setting, and procedural safeguards.
- Schools may also need to make reasonable modifications to their policies, practices, or procedures to avoid disability discrimination. Examples of modifications that may be reasonable, depending on the circumstances, include: using de-escalation strategies and providing time and space to calm the situation.
- Schools may not use criteria, policies, practices, or procedures that have the effect of: (1) discriminating on the basis of disability, or (2) defeating or substantially impairing the school s objectives with respect to students with disabilities. Disciplinary policies and procedures that result in unjustified discriminatory effects based on a disability, even if unintentionally, violate Section 504.