CADRE Resources
Procedural Safeguards Background Text, Office of Special Education Programs IDEA Amendments of 1997 Curriculum
A publication of....
NICHCY
National Information Center for Children and Youth with Disabilities
P.O. Box 1492
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Note: This module is part of a training package on the IDEA Amendments of 1997, developed by the Office of Special Education Programs at the U.S. Department of Education, the National Information Center for Children and Youth with Disabilities (NICHCY), and the Federal Resource Center for Special Education (FRC).
Module 10 includes the following components, with the text of each provided in separate files: background text, resources, handouts, training script, overheads in English, and overheads in Spanish. If you want the entire module, be sure to download each of these files. This is the background text file.
Note: Some of the handouts accompanying this module are available in Spanish. See Module 12:
Spanish materials.
This information is copyright free. Readers are encouraged to copy and share it, but please credit the National Information Center for Children and Youth with Disabilities (NICHCY). is information is copyright free. Readers are encouraged to copy and share it, but please credit the National Information Center for Children and Youth with Disabilities (NICHCY).
Relevance of Training on Procedural Safeguards
Procedural safeguards are an essential part of the law, and all training participants need to have a thorough and accurate grasp of what the law requires. Some of the procedural safeguards have been amended, and it will be important to highlight the ways in which past requirements have changed. In addition, new safeguards have been added. Accordingly, this module reviews the requirements for procedural safeguards that the IDEA 97 has changed and added. Procedural safeguards that have not changed are not discussed.
PROCEDURAL SAFEGUARDS — AT A GLANCE
Overview of Procedural Safeguards
The Individuals with Disabilities Education Act includes an entire section entitled "Procedural Safeguards." These safeguards are designed to protect the rights of parents and their child with a disability, as well as give families and schools a mechanism for resolving disputes.
Procedural safeguards under the prior legislation include:
--the right of parents to inspect and review all of their child's educational records;
--the right of parents to obtain an independent educational evaluation (IEE) of their child;
--the right to written prior notice on matters regarding the identification, evaluation, or educational placement of their child, or the provision of FAPE to their child;
--the right to request a due process hearing on these matters, which must be conducted by an impartial hearing officer;
--the right to appeal the initial hearing decision to the State Education Agency (SEA) if the SEA did not conduct the hearing;
--the right of the child to remain in his or her current educational placement, unless the parent and the agency agree otherwise, while administrative or judicial proceedings are pending (this provision has come to be known as the "stay-put" provision);
--the right to bring civil action in an appropriate State or Federal court to appeal a final hearing decision;
--the right of the parent to request reasonable attorney's fees from a court for actions or proceedings brought under IDEA (under certain circumstances);
--the right of parents to give or refuse consent before their child is initially evaluated or placed in a special education program for the first time.
--Many of these procedural safeguards remain unchanged. Some have been amended, and some are new, as described below.
Areas of Change
Procedural safeguards are a critical area of the law, for these ensure that the rights of parents and children are protected. IDEA 97 makes the following changes to the procedural safeguards section.
Rather than always sending a detailed description of the procedural safeguards available to parents under the law, public agencies may now, in certain, well specified instances, merely provide to parents, as part of written prior notice, a statement that the parents of a child with a disability have protections under the procedural safeguards and indicate where parents might obtain assistance in understanding these safeguards. In other specific instances, the public agency must send parents a copy of a detailed description of the procedural safeguards.
Parents must now notify the public agency when they intend to remove their child from the public school and place the child in a private school at public expense.
Parents must now notify the SEA or the LEA, as the case may be, when they intend to file a due process complaint.
States must now have a voluntary mediation process in place, as a means of resolving disputes between LEAs and parents of children with disabilities.
Specific requirements have been added to the law regarding the disciplining of children with disabilities. nder certain circumstances, such as the child bringing a weapon to school or a school function, the child may be removed from his or her current educational placement and placed in an interim alternative educational setting or suspended or expelled from school.
Attorneys' fees may, under certain circumstances, be reduced or denied. Among the circumstances is when an attorney representing the parent did not provide the school district with the appropriate information in the due process complaint in accordance with IDEA. Attorneys' fees may not be awarded relating to any meeting of the IEP Team unless the meeting is called as a result of a due process hearing or judicial action, or, at the discretion of the State, for a mediation that is conducted prior to the filing of a due process complaint.
PROCEDURAL SAFEGUARDS—THE DETAILS!
Overview
The Individuals with Disabilities Education Act includes an entire section entitled "Procedural Safeguards." These safeguards are designed to protect the rights of parents and their child with a disability, as well as give families and schools a mechanism for resolving disputes. This section identifies the safeguards that have remained essentially the same and looks at those that have been revised or added to the law.
Procedural Safeguards Remaining Essentially the Same
Many of the procedural safeguards set forth under prior legislation have remained essentially the same and will not be discussed in this module. These are:
--access to educational records: Parents have the right to inspect and review all of their child's educational records.
--parents' right to obtain an independent educational evaluation (IEE) of their child;
--parents' right to request a due process hearing on any matter with respect to the identification, evaluation, or placement of their child, or the provision of FAPE, parents' right to have a due process hearing conducted by an impartial hearing officer;
--parents' right to appeal the initial hearing decision to the State Education Agency (SEA) if the SEA did not conduct the hearing; and
--parents' right to bring civil action in an appropriate State or Federal court to appeal a final hearing decision.
Revised and New Safeguards
Several of the procedural safeguards have been modified, and several new ones have been added to the law. Each of these is listed below and will be discussed in the remainder of this section.
--Procedural safeguards notice and prior written notice: Rather than always sending a detailed description of the procedural safeguards available to parents under the law, public agencies may now, in certain, well specified instances, merely provide to parents, as part of written prior notice, a statement that the parents of a child with a disability have protections under the procedural safeguards and indicate where parents might obtain assistance in understanding these safeguards. In other specific instances, the public agency must send parents a copy of a detailed description of the procedural safeguards.
--Notification to the public agency by parents regarding parental placement of their child in a private school: Parents must now notify the public agency when they intend to remove their child from the public school and place the child in a private school at public expense.
--Notification to the public agency by parents of their intent to file a due process complaint: Parents must now notify the SEA or the LEA, as the case may be, when they intend to file a due process complaint.
--Mediation: States must now have a voluntary mediation process in place, as a means of resolving disputes between LEAs and parents of children with disabilities.
--Disciplining of children with disabilities: Specific requirements have been added to the law regarding the disciplining of children with disabilities.
--Attorneys' fees: Attorneys' fees may, under certain circumstances not previously addressed, be reduced or denied.
Prior Written Notice & the Procedural Safeguards Notice
Before the IDEA Amendments of 1997, prior written notice had to be given to parents a reasonable time before a public agency (a) proposed to initiate or change the identification, evaluation, or educational placement of the child, or the provision of FAPE to the child; or (b) refused to initiate or change the identification, evaluation, or educational placement of the child, or the provision of FAPE [34 CFR §300.504(a)]. Part of this prior written notice was "a full explanation of all of the procedural safeguards available to parents" [34 CFR §300.505(a)(1)].
IDEA 97 changes this approach to informing parents of the procedural safeguards available under the law. As the Committee on Labor and Human Resources (1997) states: "The bill simplifies the process of delivering, and the content of, notices to parents about their child's rights. The committee hopes that these provisions will result in user-friendly information that parents can understand" (p.25).
Now, the full explanation of all of the law's procedural safeguards is provided via what the law calls the "procedural safeguards notice." The procedural safeguards notice is provided at certain well-specified times (see further below). At other times, parents are alerted to or reminded of the availability of procedural safeguards by a statement contained in the prior written notice that the public agency is providing them. This is a statement in the prior written notice:
"...that the parents of a child with a disability have protection under the procedural safeguards of this part and, if this notice is not an initial referral for evaluation, the means by which a copy of a description of the procedural safeguards can be obtained..." [Section 615(c)(6)]
The prior written notice must include a variety of other information as well. For example, prior written notice must include a description of the action proposed or refused by the public agency and an explanation of why the public agency proposes or refuses to take the action. For the verbatim language of IDEA 97 in regard to all aspects of prior written notice, including its contents, see Resource 10-1, which can be used as a handout, if desired. Handout 10-3 presents information about prior written notice in a non-verbatim way.
As was mentioned above, prior written notice must be provided to parents whenever the public agency proposes or refuses to initiate or change the identification, evaluation, or educational placement of the child, or the provision of FAPE to the child [Section 615(b)(3)]. This notice must be in the native language of the parents, unless it clearly is not feasible to do so [Section 615(b)(4)].
In contrast, parents are given the procedural safeguards notice at other times. Specifically, it must be given to the parents, at a minimum, when:
--the child is initially referred for evaluation;
--parents are notified of an IEP meeting;
--the agency proposes to reevaluate the child; and
--upon registration of a due process complaint.
Procedural safeguards under IDEA 97 [see Section 615(d)(2)], include:
--independent educational evaluation [see Section 615(b)(1)]
--prior written notice [see Section 615(b)(3) and (4) and (c)]
--parent consent [see Section 614(a)(1)(C), (c)(3)]
--access to educational records [see Section 615(b)(1)]
--opportunity to present due process complaints [see Section 615(b)(6) and (k)(7)]
--the child's placement during pendency of a due process proceeding [see Section 615(j) and (k)(7)]
--procedures for students who are subject to placement in an interim alternative educational setting [see Section 615(k)]
--requirements for unilateral placement by parents of children in private schools at public expense [see Section 612(a)(10(C)]
--mediation [see Section 615(e)]
--due process hearings, including requirements for disclosure of evaluation results and recommendations [see Section 615(f), (h), (i)(1)(A), and (k)]
--State-level appeals (if applicable in that State) [see Section 615(g), (h), (i)(1)(B), and (k)]
--civil actions [see Section 615(i)(2), (3)(A), and (k)]
--attorneys' fees [see Section 615(i)(3)(B)-(G), and (k)].
The procedural safeguards notice must be written in the native language of the parents, unless it clearly is not feasible do so. It must also be written in an easily understandable manner [Section 615(d)(2)]. (The reverse side of Resource 10-1 provides the verbatim text of the IDEA 97 regarding the procedural safeguards notice. Handout 10-2 provides this information in a non-verbatim way.)
New Notification Requirements for Parents
In addition to IDEA 97 modifying the requirements that LEAs have for notifying parents, it adds requirements with respect to parents providing notification to public agencies. Now parents have two set of circumstances when they are required to notify the SEA, the State agency, or the LEA, as the case may be. These circumstances are:
--when parents intend to remove their child from the public school and place the child in a private school at public expense; and
--when parents intend to file a due process complaint.
Both of these requirements were discussed in Chapter 9, Parent and Student Participation in Decision Making. Accordingly, they will not be re-discussed here. See Chapter 9 for more information.
MEDIATION
IDEA 97 establishes mediation as a process that may be used in resolving conflicts between schools and the parents of a child with a disability. While prior legislation permitted mediation, the new legislation explicitly outlines States' obligations for creating a mediation process in which parents and LEAs may voluntarily participate. Among a State's obligations are:
--ensuring that the mediation process is voluntary on the part of the parties, is not used to deny or delay a parent's right to a due process hearing, or to deny any other rights afforded under Part B of IDEA, and is conducted by a qualified and impartial mediator who is trained in effective mediation techniques;
--maintaining a list of qualified mediators knowledgeable in laws and regulations relating to the provision of special education and related services; and
--bearing the cost of the mediation process.
Some parents may choose not to use mediation, and a local educational agency or a State agency may establish procedures to require those parents to meet with a disinterested party who would explain the benefits of the mediation process and encourage them to make use of the process.
Resource 10-2 provides the verbatim text of IDEA 97 with respect to mediation. Handout 10-4 provides a summary of the mediation requirements, using non-verbatim language.
On the subject of mediation, the Committee on Labor and Human Resources had quite a lot to say in its Report [to accompany S. 717]. The committee begins: "To encourage early resolution of problems whenever possible, section 615 requires States to offer mediation as a voluntary option to parents and LEA's as an initial process for resolving disputes..." (p. 26). The remainder of the committee's remarks are presented between the lines below.
On Mediation
from the Report [to Accompany S.717]...
The committee believes that, in States where mediation is now offered, mediation is proving successful both with and without the use of attorneys. Thus, the committee wishes to respect the individual State procedures with regard to attorney use in mediation, and therefore, neither requests nor prohibits the use of attorneys in mediation. The committee is aware that, in States where mediation is being used, litigation has been reduced, and parents and schools have resolved their differences amicably, making decisions with the child's best interest in mind. It is the committee's strong preference that mediation become the norm for resolving disputes under IDEA.
The committee believes that the availability of mediation will ensure that far fewer conflicts will proceed to the next procedural steps, formal due process and litigation, outcomes that the committee believes should be avoided when possible. Section 615(e)(2)(B) of the bill provides that the State shall maintain a list of individuals who are qualified mediators. The committee intends that, whenever such a mediator is not selected on a random basis from that list, both the parents and the agency are involved in selecting the mediator, and are in agreement with the individual who is selected...
The legislation requires that agreements reached in mediation shall be put in writing. Furthermore, the amendments require that discussions held in mediation would be confidential and could not be used as evidence in any subsequent due process hearing or civil action. However, the committee intends that nothing in this bill shall supersede any parental access rights under the Family Educational Rights and Privacy Act of 1974 or foreclose access to information otherwise available to the parties. Mediation parties may enter into a confidentiality pledge or agreement prior to the commencement of mediation. An example of such an agreement follows:
a. The mediator, the parties, and their attorneys agree that they are all strictly prohibited from revealing to anyone, including a judge, administrative hearing officer or arbitrator the content of any discussions which take place during the mediation process. This includes statements made, settlement proposals made or rejected, evaluations regarding the parties, their good faith, and the reasons a resolution was not achieved, if that be the case. This does not prohibit the parties from discussing information, on a need-to-know basis, with appropriate staff, professional advisors, and witnesses.
b. The parties and their attorneys agree that they will not at any time, before, during, or after mediation, call the mediator or anyone associated with the mediator as a witness in any judicial, administrative, or arbitration proceeding concerning this dispute.
c. The parties and their attorneys agree not to subpoena or demand the production of any records, notes, work product, or the like of the mediator in any judicial, administrative, or arbitration proceeding concerning this dispute.
d. If, at a later time, either party decides to subpoena the mediator or the mediator's records, the mediator will move to quash the subpoena. The party making the demand agrees to reimburse the mediator for all expenses incurred, including attorney fees, plus the mediator's then-current hourly rate for all time taken by the matter.
e. The exception to the above is that this agreement to mediate and any written agreement made and signed by the parties as a result of mediation may be used in any relevant proceeding, unless the parties agree in writing not to do so. Information which would otherwise be subject to discovery, shall not become exempt from discovery by virtue of it being disclosed during mediation. (Committee on Labor and Human Resources, 1997, pp. 26-28)
DISCIPLINE
Specific requirements have been added to the law regarding the discipline of children with disabilities. These requirements are complex and lengthy and are based upon standards that have emerged over the years as a result of court cases, OSEP memoranda, and findings of the Office for Civil Rights (OCR), which enforces compliance with Section 504 of the Rehabilitation Act of 1973, under which many children with disabilities receive educational services. These standards are briefly described in this section, and some court findings and an OSEP memorandum are attached as resources. Following this somewhat detailed review, the law's new requirements with respect to discipline will be discussed.
The "Stay-put" Provision
Public Law 94-142, the Education for All Handicapped Children Act, was originally enacted in 1975 to address concerns that children with disabilities were often denied a public education or were not provided with an education that addressed their unique educational needs. Many of the children were denied an appropriate education specifically because their disability had behavioral components (see Mills v. Board of Education of District of Columbia, 1972; and Pennsylvania Association for Retarded Citizens (PARC) v. Commonwealth of Pennsylvania, 1972). P.L. 94-142 changed that with its mandate that all children with disabilities must have available to them a free appropriate public education in the least restrictive environment.
One of the central tenets of P.L. 94-142, and all amendments to the law since its enactment in 1975, has been what has become known as the "stay-put provision." This provision, cited immediately below, has served to prevent public agencies from unilaterally removing a child with a disability from his or her current educational placement and placing the student in another setting during administrative proceedings.
During the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents or guardian otherwise agree, the child shall remain in the then current educational placement of such child... [Public Law 94-142, 20 USC 1415 Section 615(e)(3), 1975]
The "stay-put" provision is carried forward in IDEA 97 and reads as follows:
"Except as provided in subsection (k)(7), during the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of such child..." [Section 615(j)]
Clearly, the right of the child to remain in his or her current educational placement while disputes between the public agency and the parents are resolved is steadfast. Yet many questions have been raised over the years about its implementation and its limits, particularly in relation to students with disabilities considered dangerous or violent. Since P.L. 94-142 was originally passed, some of the issues surrounding "stay put" have been:
--What do school systems do when they believe that maintaining a student in the current placement may result in self-injury or injury to others?
--How should behavior problems be addressed?
--Given "stay put," can students with disabilities be suspended or expelled?
--For how much time can students with disabilities be suspended or expelled, without it being considered a "change in placement?"
Over time, the boundaries of the "stay-put provision" have been tested and more clearly defined. LEAs, parents, and children with disabilities have entered into court cases, written to the U.S. Department of Education and the Office for Civil Rights for guidance, and sought to define policies that would allow school systems to maintain safe environments for all students without violating the rights of and procedural safeguard protections available to students with disabilities. Three influential court cases and Federal policy memoranda are discussed below, to provide the context in which the IDEA 97 requirements regarding "stay put" have arisen.
Court Cases and OSEP Memoranda
Stuart v. Nappi. This Federal District court case (1978) was one of the first addressing the disciplining of students with disabilities who, under law, must be served by the public agency. The case involved a high school student referred to as Kathy Stuart (a fictitious name), who was suspended after a series of school-wide disturbances in which she played a part. The school district scheduled a disciplinary hearing at which it intended to recommend that she be expelled. Stuart sought a temporary injunction to bar the school district from holding this hearing. She claimed that her rights under P.L. 94-142, the recently passed Education for All Handicapped Act, had been violated. The background of the case is presented between the lines below.
The Background of Stuart v. Nappi
The case involved a high school student referred to as Kathy Stuart (a fictitious name) who was evaluated in 1975 as having a major learning disability after one of her teacher's reported she was "academically unable to achieve success in his class." The Planning and Placement Team (PPT) recommended that Stuart be scheduled on a trial basis in the special education program for students with learning disabilities and that she be given a psychological evaluation. No such evaluation was administered. When the team met three months later to review Stuart's progress, it found that she was making "encouraging gains" but suffered from "poor learning behaviors and emotional difficulties" (Stuart v. Nappi, 1978). The PPT again recommended a psychological evaluation. This evaluation was not conducted.
When the PPT met again in the fall of that school year (1975), it requested the psychological evaluation yet again and indicated that such an evaluation was essential for developing an appropriate education program for Stuart. Although it was unclear to the Court as to why this evaluation took some time to be administered, the clinical psychologist's report was finally completed in January of the next year (1976) and was reviewed by the PPT in March. Because Stuart was responding well to the one-on-one teaching she was receiving, the PPT recommended that she continue in the program until the end of the school year.
In May, however, it began to be apparent that the program was no longer appropriate for Stuart. The student had all but stopped attending the program, and a teacher requested a PPT meeting "to consider whether plaintiff's primary handicap was an emotional disability rather than a learning disability. Despite this request, plaintiff's schedule was not changed nor was a PPT meeting held to review her program before the close of the school year."
At the beginning of the next school year, Stuart was scheduled into the learning disabilities program on a part-time basis, but her attendance declined. By late fall, she was no longer attending but, rather, "wandering the school corridors with her friends." The PPT meeting was not conducted in that fall. In December of that year, Stuart was involved in several incidents that lead to disciplinary conferences between her mother and the school. Briefly, her attendance and behavior improved. The annual PPT review in March of 1977 resulted in the recommendation that she continue in the program on a part-time basis for the rest of the school year. Recommendations were also made regarding vocational training in the coming school year and an assessment of Stuart's interests and abilities.
Despite these recommendations, in the next school year (the year of the case), Stuart did not attend the learning disabilities program. Although a new PPT review was requested by one of the school staff, the review was never conducted. In mid-September of that year, Stuart was involved in school-wide disturbances and was given a 10-day suspension. A disciplinary hearing recommending her expulsion for the remainder of the school year was scheduled for November.
Stuart obtained a temporary restraining order to prevent school officials from conducting the hearing.
Stuart obtained a temporary restraining order to prevent school officials from conducting the hearing. The Court found, in Stuart v. Nappi, that the public agency had, indeed, violated her rights to a free appropriate public education and violated the "stay-put" provision of the EHA. The Court wrote:
"The record before this Court suggests that plaintiff has not been provided with an appropriate education. Evidence has been introduced which shows that [name withheld] High School not only failed toprovide plaintiff with the special education program recommended by the PPT in March of 1977, but that the high school neglected to respond adequately when it learned plaintiff was no longer participating in the special education program it had provided. The Court cannot disregard the possibility that [name withheld] High School's handling of plaintiff may have contributed to her disruptive behavior. The existence of a causal relationship between plaintiff's academic program and her anti-social behavior was supported by expert testimony.... If a subsequent PPT were to conclude that plaintiff has not been given an appropriate special education placement, then the defendant's resort to its disciplinary process is unjustifiable." (Stuart v. Nappi, 1978)
The Court examined Stuart's claim that expelling her violated the EHA's requirement for an education in the least restrictive environment and concluded that:
"The expulsion of handicapped children not only jeopardizes their right to an education in the least restrictive environment, but is inconsistent with the procedures established by the Handicapped Act for changing the placement of disruptive children.... The responsibility for changing a handicapped child's placement is allocated to professional teams.... Furthermore, parents of handicapped children are entitled to participate in and to appeal from these placement decisions.... Thus, the use of expulsion proceedings as a means of changing the placement of a disruptive handicapped child contravenes the procedures of the Handicapped Act. After considerable reflection the Court is persuaded that any changes in plaintiff's placement must be made by a PPT after considering the range of available placements and plaintiff's particular needs." (Stuart v. Nappi, 1978)
The Court made it clear that its intervention was of a limited nature, saying that "handicapped children are neither immune from a school's disciplinary process nor are they entitled to participate in programs when their behavior impairs the education of other children in the program." It pointed out the short-term and long-term methods afforded schools by the Act to address disciplinary problems associated with children who have disabilities; these included suspension; reviewing the appropriateness of children's placements via such teams as the PPT; and changing the placements, when necessary.
In conclusion, the Court ordered the Board of Education in the case to immediately review, via a PPT, Stuart's special education program. The Board of Education was preliminarily enjoined from conducting a hearing to expel her. Finally, the Court ordered that "any changes in her placement must be effectuated through the proper special education procedures until the final resolution of plaintiff's claims."
The Stuart v. Nappi case was seminal for a number of reasons. First, it was one of the first cases where behavior issues and disciplinary procedures met head on with the provisions of P.L. 94-142. The Court itself noted that, "The novel issue raised by plaintiff arises from the fact that the right to remain in her present placement directly conflicts with [name withheld] High School's disciplinary process." Because of the case's very novelty, the decision established a precedent in how conflicts between the Act's provisions and State and local disciplinary policies might be treated. For one, expulsion of ten days or more was viewed as a "change in placement" which triggered the procedural safeguards of the Act. Appropriate action, in the face of a student's misconduct, would be to convene the specialized team of persons planning the student's education to evaluate alternative placements and the student's individual needs. After such an evaluation, the team might request a change in the child's placement, if there was evidence that the current placement was inappropriate.
S-1 v. Turlington. S-1 v. Turlington (1981) is a significant case because it established a standard regarding the need to determine the "cause of misconduct." The concept of determining whether or not a student's misconduct is related to his or her disability originated in Doe v. Koger (1979) and was extensively refined in S-1 v. Turlington. In the latter case, the plaintiffs were nine students classified as having mild mental retardation, seven of whom were expelled for almost two years for misconduct that included masturbation, sexual acts against fellow students, willful defiance of authority, insubordination, vandalism, and the use of profane language. Except for S-1, none received a hearing to determine whether their misconduct was a manifestation of their disability. In the case of S-1, the superintendent of the county school system determined that, because S-1 was classified as mentally retarded, not as seriously emotionally disturbed, his misconduct could not be a manifestation of his disability.
The plaintiffs brought the case to compel State and local officials to provide them with educational services. The trial court held in their favor, but that decision was appealed to the Fifth Circuit Court, in the case described here as S-1 v. Turlington (1981).
The Fifth Court concerned itself with a number of key issues. One was whether misconduct needs to be examined for its potential connection to the student's disability. Local school officials argued that they had complied with Section 504 of the Rehabilitation Act of 1973. (At the time of the conflict which resulted in the expulsion of the students, Section 504 had been effective in the state for four months.) Under Section 504, a student may not be excluded "solely by reason of his handicap." Officials argued that they had determined that the plaintiffs were capable of understanding rules and regulations and of determining right from wrong. Moreover, because their disability was mental retardation, not serious emotional disturbance, the local officials argued that there was no relationship between the disability and the misconduct. In responding to this argument, the Fifth Circuit Court stated:
"We cannot agree that consideration of the above factors satisfies the requirement of section 504. A determination that a handicapped student knew the difference between right and wrong is not tantamount to a determination that his misconduct was or was not a manifestation of his handicap. The second prong of the school officials' argument is unacceptable. Essentially, what the school officials assert is that a handicapped student's misconduct can never be a symptom of his handicap, unless he is classified as seriously emotionally disturbed."
The Fifth Circuit Court then cited from, and agreed with, the trial court's similar finding: "‘In the Court's view such a generalization is contrary to the emphasis which Congress has placed on individualized evaluation and consideration of the problems and needs of handicapped students.' We agree."
The Fifth Circuit Court also agreed with the trial court regarding the inappropriateness of school board officials making the determination of whether the misconduct was related to S-1's disability. These individuals, the Court stated, "lacked the necessary expertise to make such a determination." Drawing upon the precedent set in Stuart v. Nappi, the Court found that expulsion was a change in placement; according to the law, changes in educational placements "must be made by a specialized and knowledgeable group of persons." The Court found that "a termination of educational services, occasioned by an expulsion, is a change in ucational placement, thereby invoking the procedural protections of the EHA."
The conclusions issued by the Court are presented between the lines below.
In the case of S-1 v. Turlington the Fifth Circuit Court issued the following conclusion:
"Accordingly, we hold that under EHA, section 504, and their implementing regulations: (1) before a handicapped student can be expelled, a trained and knowledgeable group of people must determine whether the student's misconduct bears a relationship to his handicapping condition; (2) an expulsion is a change in educational placement thereby invoking the procedural protections of the EHA and section 504; (3) expulsion is a proper disciplinary tool under the EHA and section 504, but a complete cessation of educational services is not...
In the case of S-1 v. Turlington the Fifth Circuit Court issued the following conclusion:
Accordingly, we hold that under EHA, section 504, and their implementing regulations: (1) before a handicapped student can be expelled, a trained and knowledgeable group of people must determine whether the student's misconduct bears a relationship to his handicapping condition; (2) an expulsion is a change in educational placement thereby invoking the procedural protections of the EHA and section 504; (3) expulsion is a proper disciplinary tool under the EHA and section 504, but a complete cessation of educational services is not..."
Thus, S-1 v. Turlington establishes a process to be followed in order to expel a disruptive child with a disability. First, the change of placement procedures found in the law must be followed to determine if the student's misconduct is related to his or her disability. These change of placement procedures include: evaluation by a specialized team, prior written notice provided to parents by the public agency, parents' opportunity to present a complaint and their right to an impartial hearing, and both parties' right to the appeal of any decision.
Honig v. Doe. This court case, which went all the way to the U.S. Supreme Court, is perhaps the most well known of the cases that have defined the limits of the "stay-put" provision and procedural safeguards protecting the rights of students with disabilities. (The finding of the Supreme Court is attached as Resource 4-3.) See "Background of Honig v. Doe" between the lines below.
The Background of Honig v. Doe
This dispute grew out of a school district's efforts to expel two students with emotional disorders from school indefinitely for violent and disruptive conduct related to their disabilities. The first, John Doe, had a history of violent outburts and considerable difficulty in controlling his impulses and anger. In the incident that precipitated his suspension and, ultimately, the school district's decision to permanently expel him, Doe responded to taunts of a classmate by choking the other student and kicking out a school window while being escorted to the principal's office.
In response to the district's efforts to expel him, Doe eventually sought a temporary restraining order to cancel the district's hearing (where the proposed expulsion was to be discussed) and to require school officials to convene an IEP meeting. The order was granted, and the school officials were directed to provide home tutoring for Doe on an interim basis. Shortly thereafter, the school officials were ordered to return Doe to his then-current educational placement, until the IEP review process was completed. According to the Supreme Court ruling, Doe reentered school 5-1/2 weeks (24 school days) after his initial suspension.
The second student who took part in the Honig v. Doe case is referred to as Jack Smith. Smith was identified as having an emotional disturbance by the time he entered second grade. His educational records document a pattern of aggressive behavior, particularly verbal outbursts and provocations. After warning his grandparents that further disruptive behavior would result in expulsion, the school did, indeed, suspend him when Smith made further lewd comments. The district recommended expulsion and extended the suspension indefinitely, pending a hearing and the final resolution of the matter. When Smith's counsel protested, the school district cancelled the hearing and, with the agreement of Smith's grandparents, the school began home instruction.
When Smith learned of Doe's action against the district, he sought, and was granted leave, to intervene in the suit. When the case was finally decided in District Court, a series of decisions was issued.
----The proposed expulsions and indefinite suspensions of Smith and Doe for misconduct related to their disabilities denied them their right to a free appropriate public education, as required by EHA. Their right to have that education provided in accordance with EHA's procedures was also violated.
----The school district was permanently enjoined from taking any disciplinary action other than a 2- or 5-day suspension against any child with a disability whose misconduct was related to his or her disability.
----The school district was permanently enjoined from making any other change in educational placement of any such child without obtaining the consent of that child's parents, pending resolution of any proceeding being conducted under the EHA.
----The State was barred from authorizing unilateral placement changes and ordered to set up a system to monitor compliance with EHA or, as an alternative, to establish and implement guidelines for how local schools must respond to misconduct that was disability-related.
----The State was also ordered to provide services directly to any children with disabilities where the State determined that the LEA was unable or unwilling to provide the services.
The case was appealed all the way up to the Supreme Court, primarily on the basis that (a) several other court cases had recognized a "dangerousness" exception to the "stay-put" provision--that is to say, there were exceptions to stay put for students with disabilities who were considered dangerous to themselves or others; and (b) the ruling that the State must provide direct services to a child when the LEA was unwilling or unable to do so placed an intolerable burden on the State.
The U.S. Supreme Court held for the respondents, Doe and Smith, stating:
"The language of 1415(e)(3) is unequivocal. It states plainly that during the pendency of any proceedings initiated under the Act, unless the state or local educational agency and the parents or guardian of a disabled child otherwise agree, "the child shall remain in the then current educational placement." (Honig v. Doe, 1988)
The Court rejected the petitioner's claims that the Congress, in passing P.L. 94-142, had either "thought the residental authority of school officials to exclude dangerous students from the classroom too obvious for comment" or that Congress had "inadvertently failed to provide such authority" and that the Supreme Court should "remedy the oversight." The Court stated, "We think it clear...that Congress very much meant to strip schools of the unilateral authority they had traditionally employed to exclude disabled students, particularly emotionally disturbed students, from school."
The Court went on to say:
"Our conclusion that 1415(e)(3) means what it says does not leave educators hamstrung. The Department of Education has observed that, ‘[w]hile the [child's] placement may not be changed [during any complaint proceeding], this does not preclude the agency from using its normal procedures for dealing with children who are endangering themselves or others.' Comment following 34 CFR 300.513 (1987). Such procedures may include the use of study carrels, time-outs, detention, or the restriction of privileges. More drastically, where a student poses an immediate threat to the safety of others, officials may temporarily suspend him or her for up to 10 schooldays...This authority...not only ensures that school administrators can protect the safety of others by promptly removing the most dangerous of students, it also provides a ‘cooling down' period during which officials can initiate IEP review and seek to persuade the child's parents to agree to an interim placement. And in those cases in which the parents of a truly dangerous child adamantly refuse to permit any change in placement, the 10-day respite gives school officials an opportunity to invoke the aid of the courts under 1415(e)(2), which empowers courts to grant any appropriate relief." (Honig v. Doe, 1988)
The section of EHA to which the Supreme Court refers--1415(e)(2)--grants the right "to bring a civil action...in any State court of competent jurisdiction or in a district court of the United States." If a party brings such an action, "the court shall review the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." [P.L. 94-142, USC 1415(e)(2), 1975]
The Supreme Court also examined the U.S. Department of Education's position that a suspension of up to 10 school days did not amount to a "change in placement" prohibited by the "stay-put" provision (U.S. Department of Education, 1987, February 26). The Court concluded that the agency's position comported fully with the purposes of the EHA: "Congress sought to prevent schools from permanently and unilaterally excluding disabled children by means of indefinite suspensions and...expulsions; the power to impose fixed suspensions of short duration does not carry the potential for total exclusion that Congress found so objectionable... We believe the agency correctly determined that a suspension in excess of 10 days does constitute a prohibited ‘change in placement'..." (Honig v. Doe, 1988, see Footnote 8]
In Honig v. Doe, the U.S. Supreme Court established the standard by which schools have recourse when balancing the "stay-put" provision, a potentially dangerous student with disabilities, and the safety of that student and others. The Court states:
"1415(e)(3) effectively creates a presumption in favor of the child's current educational placement which school officials can overcome only by showing that maintaining the child in his or her current placement is substantially likely to result in injury either to himself or herself, or to others." (Honig v. Doe, 1988)
This standard--that schools officials must show that maintaining the child in the current placement is substantially likely to result in injury--must be met before the public agency can remove a student from his or her current placement. In the decade since Honig v. Doe was decided, this standard has been maintained as one boundary to how schools can legally address the removal of a potentially dangerous or violent student with disabilities. As we will see in a moment, IDEA 97 codifies this standard of "substantially likely to result in injury" into law.
OSEP memoranda. Over the years, the Office of Special Education Programs (OSEP), U.S. Department of Education, has issued a number of policy letters and memoranda related to disciplining students with disabilities (for example, policy letters dated February 26, 1987; February 16, 1994; August 26, 1994; and December 16, 1994; and the memorandum to the Chief State School Officers dated April 26, 1995). These memoranda have been intended to clarify the requirements of the law and to provide guidance to SEAs, LEAs, and other interested organizations and individuals on this subject.
Discipline under IDEA 97
The new legislation has added explicit new requirements regarding the disciplining of students with disabilities:
--who violate a school rule or code of conduct subject to disciplinary action;
--who carry a weapon to school or a school function under the jurisdiction of an SEA or LEA;
--who knowingly possess or use illegal drugs or sell or solicit the sale of a controlled substance while at school or a school function under the jurisdiction of an SEA or LEA; and
--who, if left in their current educational placement, are substantially likely to injure themselves or others.
Handout 10-5 presents the verbatim text of Section 615(k) of the IDEA 97. As can be seen, this section is divided into 10 subparagraphs, each of which treats a different aspect of the disciplinary process. These subparagraphs are as follow:
--Authority of school personnel
--Authority of hearing officer
--Determination of setting
--Manifestation determination review
--Determination that behavior was not manifestation of disability
--Parent appeal
--Placement during appeals
--Protections for children not yet eligible for special education and related services
--Referral to and action by law enforcement and judicial authorities.
--Definitions
Because of the complex and sensitive nature of these legal requirements, it is extremely important to read the entire text of Section 615(k) carefully. During these early days of these new provisions, and always, there is no substitute for reading exactly what the law says. The discussion provided here will go through these provisions briefly, but the predominance of material presented will be precisely what the law says.
A note regarding training!!
It is highly recommended that, during any training you conduct on this subject, you provide participants with the verbatim text of Section 615(k) and go over it carefully with them. Summary is only possible with a solid foundation in and understanding of the law's exact requirements--and, even then, is easily open to misleading or inaccurate statements, particularly when the subject matter is complicated. We provide Handout 10-4 as a ready tool for ensuring that all training participants leave the training session with a copy of the verbatim text of IDEA 97 with respect to the disciplining of students with disabilities.
Authority of school personnel. The new legislation clarifies the authority of school personnel to take disciplinary action, including ordering a change in the child's placement to an appropriate interim alternative educational setting, or suspension, in a number of well-specified instances, as follows.
"(1) Authority of school personnel.--
"(A) School personnel under this section may order a change in the placement of a child with a disability--
"(i) to an appropriate interim alternative educational setting, another setting, or suspension, for not more than 10 school days (to the extent such alternatives would be applied to children without disabilities); and
"(ii) to an appropriate interim alternative educational setting for the same amount of time that a child without a disability would be subject to discipline, but for not more than 45 days if--
"(I) the child carries a weapon to school or to a school function under the jurisdiction of a State or local educational agency; or
"(II) the child knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school or a school function under the jurisdiction of a State or local educational agency.
"(B) Either before or not later than 10 days after taking a disciplinary action described in subparagraph (A)--
"(i) if the local educational agency did not conduct a functional behavioral assessment and implement a behavioral intervention plan for such child before the behavior that resulted in the suspension described in subparagraph (A), the agency shall convene an IEP meeting to develop an assessment plan to address that behavior; or
"(ii) if the child already has a behavioral intervention plan, the IEP Team shall review the plan and modify it, as necessary, to address the behavior." [Section 615(k)(1)]
Authority of hearing officer. The law expands the authority of hearing officers to place children in an appropriate interim alternative educational setting in certain, well-specified circumstances, as follows:
"(2) Authority of hearing officer.-- A hearing officer under this section may order a change in the placement of a child with a disability to an appropriate interim alternative educational setting for not more than 45 days if the hearing officer--
"(A) determines that the public agency has demonstrated by substantial evidence that maintaining the current placement of such child is substantially likely to result in injury to the child or to others;
"(B) considers the appropriateness of the child's current placement;
"(C) considers whether the public agency has made reasonable efforts to minimize the risk of harm in the child's current placement, including the use of supplementary aids and services; and
"(D) determines that the interim alternative educational setting meets the requirements of paragraph (3)(B)." [Section 615(k)(2)]
Determination of setting. Both of the above new provisions refer to placing the child with a disability in "an appropriate interim alternative educational setting." Subparagraph (3) of Section 615(k) provides requirements for how that setting is determined.
"(3) Determination of setting.--
"(A) In general.-- The alternative educational setting described in paragraph (1)(A)(ii) shall be determined by the IEP Team.
"(B) Additional requirements.-- Any interim alternative educational setting in which a child is placed under paragraph (1) or (2) shall--
"(i) be selected so as to enable the child to continue to participate in the general curriculum, although in another setting, and to continue to receive those services and modifications, including those described in the child's current IEP, that will enable the child to meet the goals set out in that IEP; and
"(ii) include services and modifications designed to address the behavior described in paragraph (1) or paragraph (2) so that it does not recur." [Section 615(k)(3)]
Manifestation determination review. The concept of the manifestation determination review--that is, reviewing the relationship between the child's disability and the misconduct--has a clear line of precedent, as was discussed above under the various court cases bearing on disciplinary issues. IDEA 97 brings this concept into the statute.
"(4) Manifestation determination review.--
"(A) In general.-- If a disciplinary action is contemplated as described in paragraph (1) or paragraph (2) for a behavior of a child with a disability described in either of those paragraphs, or if a disciplinary action involving a change of placement for more than 10 days is contemplated for a child with a disability who has engaged in other behavior that violated any rule or code of conduct of the local educational agency that applies to all children--
"(i) not later than the date on which the decision to take that action is made, the parents shall be notified of that decision and of all procedural safeguards accorded under this section; and
"(ii) immediately, if possible, but in no case later than 10 school days after the date on which the decision to take that action is made, a review shall be conducted of the relationship between the child's disability and the behavior subject to the disciplinary action.
"(B) Individuals to carry out review.-- A review described in subparagraph (A) shall be conducted by the IEP Team and other qualified personnel.
"(C) Conduct of review.-- In carrying out a review described in subparagraph (A), the IEP Team may determine that the behavior of the child was not a manifestation of such child's disability only if the IEP Team--
"(i) first considers, in terms of the behavior subject to disciplinary action, all relevant information, including--
"(I) evaluation and diagnostic results, including such results or other relevant information supplied by the parents of the child;
"(II) observations of the child; and
"(III) the child's IEP and placement; and
"(ii) then determines that--
"(I) in relationship to the behavior subject to disciplinary action, the child's IEP and placement were appropriate and the special education services, supplementary aids and services, and behavior intervention strategies were provided consistent with the child's IEP and placement;
"(II) the child's disability did not impair the ability of the child to understand the impact and consequences of the behavior subject to disciplinary action; and
"(III) the child's disability did not impair the ability of the child to control the behavior subject to disciplinary action." [Section 615(k)(4)]
Determination that behavior was not a manifestation of disability. Under IDEA 97, if it is determined that the misconduct was not a manifestation of the child's disability, the relevant disciplinary procedures applicable to children without disabilities may be applied to the child in the same manner in which they would be applied to children without disabilities, except as provided for in Section 612(a)(1). Section 612(a)(1) is the require t that schools provide FAPE to children with disabilities who have been suspended or expelled from school. The OSEP memorandum of September 19, 1997 (Heumann & Hehir, 1997) (see Resource 10-4) provides guidance on how "children with disabilities who have been suspended or expelled from school" might be defined.
"(5) Determination that behavior was not manifestation of disability.--
"(A) In general.-- If the result of the review described in paragraph (4) is a determination, consistent with paragraph (4)(C), that the behavior of the child with a disability was not a manifestation of the child's disability, the relevant disciplinary procedures applicable to children without disabilities may be applied to the child in the same manner in which they would be applied to children without disabilities, except as provided in section 612(a)(1).
"(B) Additional requirement.-- If the public agency initiates disciplinary procedures applicable to all children, the agency shall ensure that the special education and disciplinary records of the child with a disability are transmitted for consideration by the person or persons making the final determination regarding the disciplinary action. [Section 615(k)(5)]
Parent appeal. This subparagraph sets forth requirements regarding a parent's right to disagree with the determination that their child's behavior was not a manifestation of the child's disability--indeed, to disagree with any decision regarding placement--and to request a hearing on the matter.
THIS IS NOT THE END OF THE DOCUMENT!
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