School Discipline and Students with Disabilities

Students with disabilities receive additional protections under the IDEA and Section 504, as well as Washington state law, regarding school discipline. This includes students not yet eligible for special education services if the district had knowledge that a student was eligible for special education services before the behavior that led to the disciplinary action.¹²¹  State and federal discipline protections for students with disabilities are intended to ensure that no student is prevented from accessing a FAPE because of behavioral concerns related to their disability or the team’s implementation of their IEP or 504 Plan. 

Students with disabilities who do not receive adequate supports for their individual needs may be more likely to engage in interfering behavior, and thus more likely to experience school discipline. Federal special education guidance is clear that overuse and misuse of school discipline, particularly in the absence of effective positive behavioral interventions and supports in the IEP, may violate a student’s civil rights to receive FAPE in their LRE.

“The failure of the IEP Team to consider and provide for needed behavioral supports through the IEP process may result in a child not receiving a meaningful educational benefit or FAPE….[and] could result in an inappropriately restrictive placement and constitute a denial of placement in the least restrictive environment. The failure of the IEP Team to consider and provide for needed behavioral supports could also lead to behavior that is inconsistent with the school’s code of student conduct….It is critical that IDEA provisions designed to support the needs of children with disabilities and ensure FAPE are appropriately implemented so as to avoid an overreliance on, or misuse of, exclusionary discipline in response to a child’s behavior.”¹²²

Districts must understand the implications and nuances related to school discipline and positive behavior support practices for students with disabilities. This allows districts to ensure students’ rights are protected, including the right to FAPE – which includes, when necessary, positive behavior supports as part of an IEP or 504 Plan. This section will describe recommended practices for districts to appropriately consider and act on a student’s need for positive behavior support as evidenced by behavior that violates the school’s code of conduct. 

In addition, OSPI provides extensive regulatory guidance on discipline provisions for students with disabilities. Key points in that guidance are summarized in the box below. For more on these requirements, visit the linked guidance documents. 

What Protections Exist for Students with Disabilities Regarding School Discipline?

This is a non-exhaustive list of key discipline terms and protections in state law, the IDEA, and Section 504. District staff are responsible for understanding all school discipline protections, including the ones not summarized here. 

Key Special Education Terms and Protections in Washington

Placement

Placement is a decision that is made by the IEP team, which includes the parent. Districts may not unilaterally change a student’s placement, so students who experience a change of placement because of disciplinary removals¹²³  are protected by state and federal regulations. A change of placement occurs because of disciplinary removals when:

• The removal is for more than ten consecutive school days; or
• The student has been subjected to a series of removals that constitute a pattern, because the series of removals 1) total more than ten school days in a school year, 2) occurred in response to similar student behaviors; and 3) may have additional elements of a pattern (e.g., the length of each removal, the total time the student has been removed, and the proximity of the removals to one another).

Manifestation determination review (MDR)

Manifestation determination review (MDR): 

• An MDR must be conducted within 10 days of any disciplinary removal decision that changes the placement of a student eligible for special education.
• School staff must determine whether the behavior(s) that led to the student’s removal were caused by, or had a direct and substantial relationship to, their disability, and/or whether the behavior(s) were the direct result of the district’s failure to implement the IEP. 
  • If the student’s behavior was found to be a manifestation of their disability, the IEP team must conduct an FBA and develop a BIP. If a BIP was already developed, the team must review and modify it as necessary to address the behavior at issue.

Educational services

Educational services that provide the student with a FAPE must be provided during all disciplinary removals regardless of length. District staff may provide services in an interim alternative educational setting (IAES).¹²⁴  Services must ensure the student continues to:

• Participate in the general education curriculum, although in another setting, and
• Make progress toward meeting the annual goals set out in their IEP.

Section 504 Requirements

Section 504 federal regulations are less detailed than federal and state special education regulations, but discipline requirements have largely been interpreted by the Office for Civil Rights (OCR) as following the IDEA requirements. The following resources are available to school teams to support the implementation of Section 504 discipline protections: 

• OSPI: Students’ Rights - Section 504 and Students with Disabilities
• OCR: Supporting Students with Disabilities and Avoiding the Discriminatory Use of Student Discipline under Section 504 of the Rehabilitation Act of 1973

Understanding Disciplinary Removals

A disciplinary removal occurs when a student with a disability is removed from or prevented from accessing some part of their educational program and/or services for reasons related to the student’s interfering behavior that violates the school’s code of conduct. Suspension is a common example of formal disciplinary removal; however, there are a variety of actions that a district might take that would amount to disciplinary removals based on state and federal regulations, including:

• Issuing an out-of-school suspension or expulsion to the student
• Using informal removals as described on page 38 of Section 2, such as calling a parent suggesting or requiring that they pick up their student early due to interfering behavior (even if the word “suspension” is not used)
• Issuing an in-school suspension to the student, unless all of the following occurred during that in-school suspension¹²⁵ 
  • The student was afforded the opportunity to continue to participate in the general education curriculum,
  • The student continued to receive the services specified on their IEP or 504 plan, and
  • The student continued to participate with nondisabled students to the extent they would have in their current placement
• Unilaterally limiting the student’s educational program due to behavior concerns, such as shortening the student’s school day, barring the student from attending a class on their schedule, or requiring the student to attend school virtually
• Imposing conditions under which the student will be “allowed” to attend school that disregard the student’s right to FAPE, such as requiring the parent to be present with their student during any part of the school day or requiring the student to “earn” their way back into class by demonstrating desired behavior
• Suspending a student with an IEP or 504 Plan that includes transportation as a related service from riding the school bus¹²⁶ 

Note that an in-school suspension referred to by an alternative name may still be regarded as an in-school suspension under state and federal discipline provisions for students with disabilities. Some schools may have spaces that are utilized by staff in the same way as in-school suspension under different names (e.g., “Think Time Room” or “Calming Corner”, etc.).¹²⁷  It is the function of the disciplinary removal and its impact on the student’s access to their educational program that determines whether it is an in-school suspension, not the name given to the room by the school. 

A disciplinary removal may be for a partial or full day; however, partial day removals may be equivalent to a full day under the IDEA and Section 504. Both state and federal regulation defines a school day as “any day, including a partial day, that children are in attendance at school for instructional purposes. School day has the same meaning for all children in school, including children with and without disabilities.”¹²⁸  Section 504 guidance similarly states that “students with disabilities are entitled to an entire school day that is as long as the school day for students without disabilities.”¹²⁹  

LEAs must accurately track how many school days (including partial days) the student with a disability has been subjected to disciplinary removals and should properly document all such removals in their student information system (SIS). This allows the LEA to meet state and federal requirements to:

• Provide services during any disciplinary removal, regardless of its duration, in accordance with WAC 392-172A-05145 and WAC 392-400-610
• Determine if and when the student has been subjected to a change in placement due to disciplinary removals as defined by WAC 392-172A-05155
• Document and report accurate data collections on all disciplinary actions taken in school, as required under RCW 28A.600.460 and RCW 28A.300.042

¹²¹ WAC 392-172A-05170.

¹²² OSERS (2022). Questions and answers: Addressing the needs of children with disabilities and IDEA’s discipline provisions (page 8; emphasis added).

¹²³ WAC 392-172A-05155.

¹²⁴ An IAES is a temporary placement and must allow a student to receive educational services in a manner that is comparable, equitable, and appropriate relative to the services the student would have received without the exclusionary discipline. Examples of IAES settings include alternative schools, one-on-one tutoring, and online learning.

¹²⁵ OSERS (2022). Questions and answers: Addressing the needs of children with disabilities and IDEA’s discipline provisions (page 11).

¹²⁶ OSERS (2022). Questions and answers: Addressing the needs of children with disabilities and IDEA’s discipline provisions (page 16).

¹²⁷ Some LEAs also assign these types of names to spaces that function as isolation rooms. Isolation is not an acceptable form of school discipline and should not be equated to in-school suspension. However, its impact on the student’s access to instruction and FAPE must be considered.

¹²⁸ WAC 392-172A-01050.

¹²⁹ OCR (2016). Parent and educator resource guide to Section 504 in public elementary and secondary schools (page 30).