New U.S. Department of Education discipline guidance clarifies federal protections against discrimination toward students with disabilities.

According to the new U.S. Department of Education guidance, schools must determine if a student’s behavior is related to their disability before disciplining them. U.S. Secretary of Education Miguel Cardona stated that the new guidance is the “most comprehensive” the department has ever released on the topic.

Four New Resources

• • • Supporting Students with Disabilities and Avoiding the Discriminatory Use of Student Discipline under Section 504 of the Rehabilitation Act of 1973 (Opens as pdf file)

    • Questions and Answers: Addressing the needs of Children with Disabilities and IDEA’s Discipline Provisions. (Opens as pdf file)

    • Positive, Proactive Approaches to Supporting Children with Disabilities: A Guide to Stakeholders (Opens as pdf file)

    • Key Policy Letters Signed by the Education Secretary or Deputy Secretary

Key takeaways:

Schools are required to provide behavioral supports and services to students with disabilities and must determine if a student’s behavior is related to their disability before expelling or suspending them for that behavior.

Section 504 prohibits schools from not making reasonable modifications for students with disabilities such as adapting school policies to support student needs; unnecessarily treating a student differently because of their disability; or using policies that have an “unjustified discriminatory effect” on students with disabilities.

A student’s IEP, or individualized education program, must include the use of “positive behavioral interventions and supports” to address disruptive behavior.  Behavioral interventions can include “special education and related services, supplementary aids and services, and program modifications or supports for school personnel.”

Behavioral interventions can include “special education and related services, supplementary aids and services, and program modifications or supports for school personnel.”  Physical restraints—when adults use their own physical force to restrain a student—could constitute discrimination. However, the use of “physical escort,” in which an adult temporarily touches or holds a student’s hand, wrist, arm, shoulder, or back “for the purpose of inducing a student who is acting out to walk to a safe location,” is not considered a restraint.

Informal removal, although not defined in IDEA and its implementing regulations, means action taken by school personnel in response to a child’s behavior that excludes the child for part or all of the school day, or even an indefinite period of time. These exclusions are considered informal because the school removes the child with a disability from class or school without invoking IDEA’s disciplinary procedures. Informal removals are subject to IDEA’s requirements to the same extent as disciplinary removals by school personnel using the school’s disciplinary procedures. Informal removals include administratively shortened school days when a child’s school day is reduced by school personnel, outside of the IEP Team and placement process, in response to the child’s behavior.

“Actions that result in denials of access to, and significant changes in, a child’s educational program could all be considered as part of the 10 days of suspension and also could constitute an improper change in placement. These actions could include when a school administrator unilaterally informs a parent that their child with a disability may only remain in school for shortened school days because of behavioral issues or when a child with a disability is not allowed by the teacher to attend an elective course because of behavioral concerns.”