Discipline and the Section 504 Student: Removal Rules, Additional Doctrines, Bips, And

Discipline and the Section 504 Student: Removal Rules, Additional Doctrines, BIPs, and Manifestation Determination Issues

by

Jose L. Martín, Attorney at Law

Richards Lindsay & Martin, L.L.P.

13091 Pond Springs Road, Suite 300

Austin, Texas 78729

(512) 918-0051

Copyright © 2014, 2016Richards Lindsay & Martín, L.L.P.

The rules applicable to disciplinary removals and disciplinary changes in placement under §504 are similar to those under IDEA. In fact, the IDEA discipline rules originated with U.S. Department of Education guidance on discipline under §504, most of which was incorporated into IDEA in its 1997 reauthorization.

Simplified Method for UnderstandingDisciplinary Removal Rules

1.Learn to identify short-term disciplinary removals under §504.

A short-term removal occurs when a campus administrator removes a child from his normal setting for less than 10 consecutive school days for disciplinary or behavior purposes. The most common example is a suspension to the home (in Texas, limited to 3 school days per offense). In-school suspension (ISS) should be considered a short-term removal, unless the “smart ISS” criteria discussed below is met, in which case the removal days may not count as true short-term disciplinary removal days under §504.

2.Learn to identify long-term disciplinary removals under §504.

A long-term removal is one of over 10 consecutive school days, usually in the form of a removal to a disciplinary alternative education program (DAEP) or expulsion (including long-term placements in juvenile justice AEPs).

3.Do not mix up the rules for long-term and short-term removals—learn and apply the rules separately.

It’s easy to get confused if you try to learn and apply the separate rules for long and short-term removals as simultaneous concepts. Rather, learn and apply these rules as two separate sets of rules. This eliminates a lot of mixed-up §504 discipline questions, such as “is it 10 cumulative or 10 consecutive days?” There are really two sets of rules that involve a 10-day timeline, and trying to learn them simultaneously frequently causes confusion. The rules apply generally separately to short-term and long-term removals and should be learned in that fashion.

4.For short-term removals involving §504 students, campuses start the year with 10 “free” removal days at their disposal.

At the start of the school year, imagine the school is given 10 “free” removal days for each §504-eligible student. These days are “free” under §504 because they can be used without the need to convene a §504 committee meeting, without a manifestation determination, and generally, without worrying about any §504 procedure or safeguard. See, e.g., Mason v. Board of Educ. Howard Pub. Sch. Sys., 56 IDELR 14 (D.Md. 2011); Abington (MA) Pub. Sch., 25 IDELR 648 (OCR 1996).They can be imposed as they would be in the case of a nondisabled student who commits the same disciplinary offenses. This rule flows from longstanding guidance from the U.S. Department of Education, going back to letters issued in the late 1980’s. That guidance, moreover, became the basis of the disciplinary rules under IDEA for special education students as well.

5.Although schools may be able to exceed the 10-day removal total, at a certain point, accumulated short-term removals constitute a “pattern of exclusion,” which triggers the manifestation determination requirement.

At a certain point, accumulations of too many short-term removals will become a “pattern of exclusion” (in Office for Civil Rights (OCR) jargon), which is considered an overall long-term removal and disciplinary change of placement that requires a manifestation determination. See, e.g., Springfield (MA) Pub. Schs., 54 IDELR 102 (OCR 2009). OCR developed this rule over time, and it was also exported into the IDEA discipline regulations.See 34 C.F.R. §300.536. Whether accumulations of short-term removals after the 10-day mark constitute a “pattern of exclusion” depends on how long each removal is, how close they are to each other, and how many they add up to overall. A potentially applicable additional factor, borrowed from the 2006 IDEA regulations, is the degree to which the individual behaviors leading to the series of removals are similar in nature. The multiplicity of factors renders the determination fairly subjective and difficult to predict with accuracy. The rule might be designed vaguely in order to promote caution among school administrators who are considering disciplinary removals.

OCR might not apply the “substantial similarity” component in §504 complaints—When a parent of a child with a disability complained to the Office for Civil Rights (OCR) that a Michigan school was excessively removing her child from school, OCR found that the school had removed the student a total of 22 days in seven months within a school year. Kalamazoo (MI) Pub. Sch. Dist., 50 IDELR 80 (OCR 2007). In this post-reauthorization case, OCR determined that the 22 removal days amounted to a pattern of exclusion, after applying the traditional three-factor analysis: (1) length of each removal, (2) overall total removal days, and (3) proximity of removals to one another. OCR did not examine the similarity of the behaviors, or cite it as an analytical factor. Thus, despite the new analysis of the IDEA regulation, OCR may examine whether a pattern occurred, for purposes of §504, by means of the pre-reauthorization analysis for multiple removals.

Generally, it’s good advice for schools to limit forays into the over-10-total-school-days danger zone. And, obviously, the higher the number of removals after the 10-day total is reached, the more precarious the school’s legal position becomes.

6.Before short-term removals add up to 10 total school days, have a §504 meeting to address behavior.

The best preventive measure in §504 disciplinary matters is to convene a §504 meeting before short-term removals add up to 10 total days. The §504 committee can decide to gather additional information on the student’s behaviors, develop a BIP, provide regular counseling, evaluate the student further, or make other adjustments to the student’s §504 plan. The idea is to take program-based action before a disciplinary issue becomes a major problem, and before the school runs out of safely-available removal days.

7.For long-term removals, proceed to a manifestation determination §504 meeting as soon as you can, and before the removal reaches 10 consecutive school days.

As soon as possible after the campus initiates a long-term disciplinary removal, a §504 committee meeting must be convened to determine if the student’s alleged offense was directly related to their disability. This is called the manifestation determination or manifestation determination review (MDR). In addition, the rule also requires the §504 committee to determine whether the behavior is related to an inappropriate §504 program. The meeting must take place before the long-term removal reaches its 11th consecutive day. The right to a manifestation determination in instances of threat of long-term removal is the primordial safeguard of §504 disciplinary procedures. It is a doctrine that was first developed in federal court cases starting in the late-70’s, and later adopted by the Department of Education as policy in the 80’s. Although the requirement does not appear in the §504 federal regulations, OCR has long interpreted the law to require MDRs prior to disciplinary changes in placement. See, e.g., Dubnkin (MO) R-V Sch. Dist., 52 IDELR 38 (OCR 2009).

The manifestation determination essentially decides whether the student can be subjected to long-term removal or not. If the §504 committee properly determines that the behavior in question is not related to disability, then the student can be subjected to regular disciplinary procedures, as in the case of a similarly-situated nondisabled student. See, e.g., Gates-Chili (NY) Cent. Sch. Dist., 50 IDELR 51 (OCR 2007). If the §504 committee determines that the behavior is related to disability, then a long-removal under regular policies cannot take place, and the 504 committee must determine whether the current 504 plan is apporpriate. See, e.g., Tulsa (OK) Pub. Schs., 46 IDELR 49 (OCR 2005). Thus, the quality of the manifestation determination is crucial to a long-term removal. §504 members are well-advised to prepare and pre-staff for manifestation determinations.

Note—Despite OCR’s longstanding interpretations requiring MDRs prior to disciplinary changes in placement, some federal courts do not recognize the requirement, since it exists neither in the statute nor in the §504 regulations. See Centennial Sch. Dist. v. Phil L., 50 IDELR 184 (E.D.Pa. 2008)(“Although students qualifying under the Rehabilitation Act are afforded some procedural protections—namely, a Section 504 hearing—they are not afforded the specific protection of a ‘manifestation determination’ under the IDEA.”).

Additional Important Discipline Doctrines

•For drug and alcohol offenses, if the student is a “current user,” the MDR protection does not apply.

Students eligible under §504 lose the right to a manifestation determination and due process hearing if they violate drug or alcohol rules and are determined to be “current users.”See 29 U.S.C. §706(8)(B)(iv).Thus, if there is evidence that the student is a current drug or alcohol user, the §504 committee can skip the manifestation determination, and the student is subject to the regular disciplinary process that would take place in the case of a drug or alcohol offense by a nondisabled student. See Letter to Zirkel, 22 IDELR 667 (OCR 1995). If the committee does not believe that the student is a current user, it must proceed to make the manifestation determination. OCR has determined that mere possession is not itself evidence of current use of drugs or alcohol. See, e.g.,OCR Staff Memorandum, 17 EHLR 609, 611 (OCR 1991).

Note—Under local codes of conduct, drug and alcohol offenses generally include possession, use, sale, distribution, or beingunder the influence, whether at school or at school-related events.

Evidence of “current use”?—Current use could be shown by the student being under the influence of drugs or alcohol, or by the nature of the possession offense. For example, possession of a partially burned marijuana cigarette or of a pipe with burned marijuana residue could be evidence of current use. If there is a possession or distribution incident, but no evidence of current use, it is advisable to conduct the MDR.

•Report criminal behavior to law enforcement if you would do so for a non-disabled student’s behavior under your policies, but make sure you have implemented the BIP, if there is one.

IDEA makes clear that schools may report criminal offenses committed by special education students at school. See 34 C.F.R. §300.535. This is generally assumed to be the case under §504, as long as school administrators ensure that resort to law enforcement occurs in a non-discriminatory fashion, for nondisabled and disabled students alike. In addition, staff must ensure that the student’s BIP, if any, is fully implemented before the police are called, if at all possible. Reports to law enforcement cannot be undertaken instead of complying with the requirements of a BIP or §504 plan, and should not be viewed as a behavioral intervention. Although in many cases, even when it is clear that the conduct at school is a crime under state law, campus administrators are well-advised to research and obtain information from law enforcement authorities about what type of conduct constitutes criminal conduct that should lead to reports. Generally, offenses involving drugs, weapons, or serious assaults can safely be reported to law enforcement.

•Explore use of a “smart ISS” option on your campus to help minimize suspensions to home.

In the commentary to the 2006 IDEA regulations, the USDOE states “it has been the Department’s long term policy that an in-school suspension would not be considered a part of the days of suspension . . . as long as the child is afforded the opportunity to continue to appropriately participate in the general curriculum, continue to receive the services specified on the child’s IEP, and continue to participate with nondisabled children to the extent they would have in their current placement. This continues to be our policy.” 71 Fed. Reg. 46,715. Previously, the USDOE had set forth this position in the commentary accompanying the 1999 version of the IDEA regulations. By this guidance, the feds are obviously creating an incentive for schools to opt for in-school forms of suspension rather than out-of-school suspensions, which can have adverse side-effects on student performance, and which may in fact positively reinforce the misbehavior. A review of recent OCR decisions appears to indicate that this is OCR’s position under §504 as well. See, e.g., Rutherford County (TN) Schs., 62 IDELR 271 (OCR 2013). OCR will probably find that ISS days are not true “removals” under §504 as long as students are provided an equal opportunity to continue progressing in the regular curriculum, and receive their §504 accommodations, in ISS.

The higher the degree of continuity of educational services at the ISS facility, the better your chance of successfully arguing that these are not true removal days. The more “traditional” your in-school suspension program (i.e. supervision-only while students allegedly work independently, or minimal services), the more likely that OCR will find that removals to your in-school suspension program in fact constitute disciplinary removals that “count” toward the 10-day mark. It is important to be able to show that the student received all of the work done in the regular classes, and that the §504 accommodations continued to be implemented in the ISS setting. Even better is to have the regular teachers check with the students in ISS to see if they are having problems with the classwork.

•A §504 committee should address the need for a behavior intervention plan (BIP) when a student’s behaviors get to the point that they impede their learning or the learning of others.

Early development and consistent implementation of a BIP can help both reduce inappropriate behavior and protect the campus legally. §504 committees should act early to develop BIPs to address students’ behavior problems. You can’t get in trouble for doing one too early, but many school’s have suffered the consequences of developing a BIP too late, or not at all. When a BIP is developed, the §504 committee should monitor the implementation and effect of the BIP, and use the information to revise the BIP as needed, especially if behavior problems escalate.

Is there an FBA requirement in §504?—Under IDEA, the common precursor to the development of the BIP is a functional behavioral assessment (FBA). There is no mention of FBAs in the §504 regulations, but before developing a BIP, §504 committees should gather behavior data from teachers, discipline records, and the parents, to help answer the following questions:

•What behavior that prevents learning does the student exhibit?

•How serious is the behavior?

•How frequent?

•Where does the behavior take place?

•At what times is the behavior exhibited?

•What appears to be the function of the behavior?

•What happens before and after the behavior?

•What strategies have already been attempted and how have they worked?

•What discipline strategies do the parents use at home?

The answers to the above questions consist of information that can help inform the process of identifying target behaviors, developing positive intervention strategies, and identifying effective limit-setting consequences.

Manifestation Determination Issues

•Foreseeability

In manifestation determinations, an important question is whether the existing evaluation data would lead one to predict that a certain behavior might be exhibited. If from the evaluation data, a reasonable person would conclude that the behavior is likely to take place, the §504 committee should find that the behavior is related to disability.

•Manifestation determination reviews arereevaluations under §504

The starting point for undertaking the "link" inquiry is the child's existing evaluation data. Under §504, the evaluation data might not include formal psychological assessments, but it may include behavioral checklists, teacher observations, anecdotal evidence, disciplinary reports, incident reports, police reports, etc. When a §504 Committee gathers, reviews, and interprets data about a disciplinary infraction, together with a review of the child's existing data, it is conducting a valid §504 evaluation under §504. See 34 C.F.R. §104.35(a). It is on the basis of this evaluation that the committee makes the manifestation determination.

•Degree of link required

More than two decades ago, an important federal court decision addressed the issue of the degree of relationship between disability and behavior that is required for a finding that the behavior is related to disability. Doe v. Maher, 793 F.2d 1470 (9th Cir. 1986). In a footnote to that opinion, the court indicated that an essential component to finding that a behavior is linked to handicapping condition is whether there is a close logical relationship between the behavior and disability. The Court stated that this definition did not "embrace conduct that bears only an attenuated relationship to the child's handicap," such as conduct allegedly caused by low self-esteem in turn caused by the disability.

In the 2004 IDEA reauthorization, Congress tightened the language and structure of the manifestation determination standard. Currently, the applicable manifestation determination standard calls for the team to determine—

if the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability; or

if the conduct in question was the direct result of the local educational agency’s failure to implement the IEP.” 20 U.S.C. §1415(k)(1)(E)(i).

It should be safe to assume that §504 committees conducting the manifestation determination can, by reference, apply the standard applicable to special education students.

MDR Propositions Based on Caselaw

•As part of an MDR, the §504 Committee is responsible for considering evaluation data and other relevant information which was known, or should have been known, at the time of the MDR.

Student v. Brazos ISD, 60 IDELR 149 (SEA TX 2012)(“The law requires the MDR committee to relate the violation in question to the disability already determined to apply to the student,” although the parent argued the evaluation data needed to be updated).

Student v. Plano ISD, 268-SE-0713 (SEA TX 2013)(ARDC did not have to consider allergies alleged to have caused aggressive behavior, since they were not established through the ARD process prior to the MDR. In addition, behavior appeared “premeditated and deliberate, rather than impulsive and thoughtless,” and thus not related to ADHD).