Do we have dual standards special students? (Spring 2004)
Don’t get me wrong, here: I agree that students with disabilities should—must—be treated at school with a view toward accommodating that disability in order to ensure that they get an education appropriate to their disability. There are lots of different types of disabilities which teachers and administrators must deal with on a daily basis, and, for the most part, the application of the requirements of the Individual with Disabilities Act (IDEA) gives those kids a much better chance at an education than they otherwise might hope for. High fives all around.

However, when the focus shifts to disciplining those kids when they misbehave (and some of them can be pretty impressive in their misbehavior) it might shock you to know that, in many cases, the school’s discipline handbook doesn’t apply.

A special ed student’s educational plan is derived individually, in what is called an Individual Education Plan (IEP). That plan is drawn up by a committee composed of the parents, the teachers and whoever else might offer some special expertise in dealing with the education of a particular child. Sometimes, when a student simply can’t or won’t behave himself, and when the bad behavior is attributed to the student’s particular disability, the remedy is: the usual discipline rules don’t apply to him. Throw the student handbook out the window. Suspension? Don’t think so. Mind you, that is not true with all special ed kids. Many, perhaps most, special ed students are deemed capable of complying with district student discipline policies. More about those kids, later.

But, for the most badly behaved students, a “behavior management plan” will be devised. Those vary according to the student’s behavior and disability, but they usually severely limit consequences for poor behavior, making the student go somewhere outside the classroom to cool down, for example.

In some cases, behavior can be so bad that the student is considered unfit for “mainstreaming,” that is, being placed in the regular classroom. A behavior improvement plan follows him wherever he goes, within the school walls, however. If a student is in a self-contained classroom (where he receives all of his instruction, rather than regular classroom attendance), many times he is there for behavior problems, and the self-contained classroom teacher will have to deal with the student according to his behavior improvement plan.

A behavior improvement plan can be interesting to apply in some situations. For example, psychologists have come up with a disability designation for someone who refuses to do as he’s told and has no hesitation in telling the teacher, principal, parent—you name it—what to do. This charming individual is said to have “Oppositional Defiant Disorder.” When I was a kid, if I tried to be oppositional or defiant, I was cured pretty quickly by my dad or mom. Yes, sir. Yes, ma’am. Not now. It’s a disorder, therefore, a disability, and, therefore, grants him the ability to avoid any discipline for his behavior—at least under Section 504. That’s because the basic ground rule for discipline under IDEA is that a student may not be disciplined for exhibiting behavior caused by his disability. If his disability is that he misbehaves, he may not be punished for misbehaving. Got that?

Back to those kids who can be disciplined according to the student handbook. Well, that’s true only so far. When we talk about some more extreme misbehavior which would, under your school’s policy, call for suspension or expulsion, special ed students may not be suspended for more than 10 days per school year. Yes, the whole year. (The IDEA regulations say that the 10-day rule is not hard and fast. But, please, stay within that number). If a special ed student is suspended for more than that 10 days, it is considered to be a “change in placement.” “Placement,” generally, is where the student is supposed to receive his education (e.g., the regular classroom or the self-contained classroom), and that placement is decided by the IEP committee, and only that committee may change his placement. That is, the principal or superintendent may not remove the student for more than 10 total days per school year without violating the law and that student’s rights (unless he brought a weapon or drugs to school).

Under any circumstances, the upshot of all of this is that no special ed student may be expelled from school, and no special ed student may be suspended for more than 10 days. Therefore, if the school board, is presented with an expulsion recommendation for a special ed student, there is no point in going forward with the hearing. The school board has no authority to change a student’s placement.

The regulations talk of expulsion being permissible if the behavior is not a manifestation of the student’s disability; but so many psychologists will assert that any disability caused the behavior (no matter what that behavior is, no matter what the disability is) that it seems pointless to have a “behavior manifestation hearing,” i.e., a hearing to determine whether the behavior for which the student is being considered for expulsion is caused by the student’s disability, or not. Therefore, I almost always recommend that, rather than going through all of that, just convene an IEP conference to review whether the placement for that particular student is appropriate, considering his disability and attendant behavior. Regardless, if a special ed student is removed from school for more than ten days, the school must provide him with an education, consistent with his IEP. Not so for the regular student who was expelled.

Under just about any circumstance, the discipline regulations for special ed students seem designed to cause astonishment and resentment on the part of others, particularly for those regular students (and their parents) who are being expelled for the same type of behavior for which the special ed student is not.

Congress is considering reauthorizing IDEA, although it appears to be stalled. I have been informed that student discipline is one area which will get significant attention for reform. Perhaps. But for right now, be very careful about the discipline of special ed students, and be sure that teachers and administrators comply with the students’ IEPs and behavior improvement plans.

In addition, when a student has consistently poor behavior, and especially when that behavior results in suspensions and/or expulsions, it might be prudent to consider whether that student should be referred for evaluation and testing to determine whether he qualifies for special ed services. Schools have an obligation not only to comply with the IEPs of those who are identified as having special needs recognized by IDEA, you have an obligation to identify those students, in the first place. If you don’t, it can get very time-consuming, very lawyered and, therefore, very expensive. What usually causes that is called a “due process hearing.”

More about those later. But, please, don’t call, mail, email or fax nasty comments about my being so insensitive to the needs of the disabled kids out there. I understand all that. It’s just that I’ve been through so many due process hearings and other special ed proceedings where the needs of the student were almost entirely (if not entirely) ignored because of some procedural kerfuffle, that I would like to see something done for the kids that actually helped them, for a change. The current state of the law seems mostly designed to put money in lawyers’ pockets.

Fortunately for the kids and all of us, the school people I work with always do their best to put the kids first. God bless ‘em.

Previous Article (December 2003)- Recipe for a grievance hearing in nine easy steps
Next Article (Summer 2004)- Special ed hearings: protracted, expensive, and not fun

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