ClIEnt Alert – January 20, 2023
New Jersey Department of Education Reiterates Guidance from U.S. Department of Education Regarding Discipline of Students with Disabilities
CLIENT ALERT
On July 19, 2022, the U.S. Department of Education (USED) released new guidance from the Office for Civil Rights and Office of Special Education and Rehabilitative Services regarding discipline of students with disabilities. The new guidance consisted of three documents:
3. Positive, Proactive Approaches to Supporting Children with Disabilities: A Guide for Stakeholders
Additionally, USED has introduced a blog series on discipline, “Discipline and Behavior Series” to promote discussion around the discipline of and behavioral supports for students with disabilities. The first post can be found here.
On January 11, 2023, the New Jersey Department of Education released a memorandum reiterating the previous USED guidance, and stating that Districts should consider this guidance when engaging with families and developing policies and procedures regarding the discipline of students with disabilities.
Below, please find an overview of the three guidance documents published by USED. The following sections contains notable passages of the above stated documents. These sections are not meant to be a complete summary of the documents, and each state and local education agency should independently review the documents in their entirety.
DEAR COLLEAGUE LETTER
USED is concerned that school discipline of special education students is not in line with IDEA’s provisions. For years, the data has demonstrated that there exists a clear disparity in the use of exclusionary discipline for children with disabilities compared to their nondisabled peers. The use of exclusionary disciplinary practices places large numbers of children with disabilities at risk for short and long-term negative outcomes, including an increased likelihood of not graduating.
Data collected under the Department’s Civil Rights Data Collection and IDEA Section 618 illustrate the disparities in the use of exclusionary disciplinary practices:
1. Preschool students served under IDEA accounted for 22.7 percent of total preschool enrollment but 56.9 percent of preschool students who were expelled.1
2. School-age students with disabilities served under IDEA represented 13.2 percent of total student enrollment but received 20.5 percent of one or more in-school suspensions and 24.5 percent of one or more out-of-school suspensions.3
3. Students with disabilities served under IDEA made up 80.2 percent of the students subjected to physical restraint and 77.3 percent of students subjected to seclusion, despite making up only 13.2 percent of students enrolled in public schools.4
4. During the 2019-2020 school year, Black children with disabilities made up 17.2 percent of children with disabilities aged 3–21 served under IDEA5 yet accounted for 43.5 percent of all children with disabilities aged 3–21 served under IDEA who were suspended out of school or expelled for more than 10 school days.6
Accordingly, the USED urges all State and Local Educational Agencies to examine existing policies, practices, and procedures to identify causes of disciplinary disparities, identify better ways to prepare educators, and implement effective, preventative, and responsive practices in place of exclusionary discipline. It is USED’s goal that these strategies will reduce the number of children with disabilities subjected to exclusionary discipline and ensure they receive FAPE.
QUESTIONS AND ANSWERS: ADDRESSING THE NEEDS OF CHILDREN WITH DISABILTIES AND IDEA’S DISCIPLINE PROVISIONS
Obligations to Meet the Needs of Eligible Children with Disabilities under IDEA
IDEA specifically requires IEP Teams to consider the use of positive behavioral interventions and supports, and other strategies, for any child with a disability whose behavior impedes their learning or that of others. The IEP Team may elect to address the behavior through annual goals in the IEP. The child’s IEP may include modifications to the child’s program, supports for the child’s teachers or other school personnel, and any special education and related services and supplementary aids and services necessary to enable the child to advance appropriately toward attaining those behavioral goals. Answer to question A-3.
When developing, reviewing, and revising the IEP, IEP Teams should determine whether behavioral supports are needed to ensure FAPE to the child: (1) special education and related services; (2) supplementary aids and services; and (3) program modifications or supports for school personnel. Answer to question A-4.
An Overview of IDEA’s Discipline Procedures
IDEA does not prescribe specific discipline. The local education agencies can choose to discipline a child with disabilities for violating the school’s code so long as the disciplinary action would not result in a change in placement and the behavior that gave rise to the violation of the school’s code of student conduct is not determined to be a manifestation of the child’s disability, with the exception of disciplinary removals due to “special circumstances”. Answer to question B-2.
The Department’s longstanding position is that every effort should be made to prevent the need for the use of restraint or seclusion. Restraint or seclusion should not be used except in situations where a child’s behavior poses imminent danger of serious physical harm to themselves or others. IDEA does not expressly allow or prohibit the use of restraints or seclusion. IDEA does, however, require the consideration of the use of positive behavioral interventions and supports, and other strategies, to address the behavior of a child with a disability that impedes their learning or that of others. Answer to question B-3.
Change in Placement
A change of placement occurs if: (1) the removal is for more than 10 consecutive school days; or (2) the child has been subjected to a series of removals that constitute a pattern (i) because the series of removals total more than 10 school days in a school year; (ii) because the child’s behavior is substantially similar to the child’s behavior in previous incidents that resulted in the series of removals; and (iii) because of such additional factors such as the length of each removal, the total amount of time the child has been removed, and the proximity of the removals to one another. Answer to question C-1.
Interim Alternative Educational Setting
A child may be placed in an Interim Alternative Educational Setting when a removal is a change of placement. Services are provided in an IAES following the tenth day of removal, or when a removal is a change of placement that would exceed 10 consecutive days in any one school year. Answer to question D-2.
IDEA does not specify the alternative setting in which educational services must be provided in an IAES, the determination of an IAES must be selected to enable the child to continue to participate in the general education curriculum. Answer to question D-3.
Special Circumstances
Within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct, the LEA, the parent, and relevant members of the child’s IEP Team must conduct the manifestation determination review. However, regardless of whether the violation was a manifestation of their disability, when the removal is for weapons, drugs, or serious bodily injury, the child may remain in an IAES, as determined by the IEP team, for not more than 45 days. Answer to question E-1.
A child with a disability who has been removed from their current placement must continue to receive educational services to enable the child to continue to participate in the general curriculum, although in another setting, and to meet the goals set out in the child’s IEP. The child must also receive, as appropriate, a “Functional Behavioral Assessment” (FBA) and behavioral intervention services and modifications that are designed to address the behavior violation so that it does not recur. These services may be provided in an IAES. Answer to question E-2.
Under IDEA, the procedural safeguards and right to FAPE for a child with a disability must be protected throughout any threat or risk assessment process, including the provision of services during any removals beyond 10 cumulative school days in a school year. Answer to question E-5.
Manifestation Determination Review
The behavior must be determined to be a manifestation of the child’s disability if the LEA, the parent, and relevant members of the child’s IEP Team determine that the child’s behavior was caused by, or had a direct and substantial relationship to, the child’s disability, or the behavior in question was the direct result of the LEA’s failure to implement the IEP. Answer to question F-3.
For disciplinary changes in placement that would exceed 10 consecutive school days when the conduct that gave rise to the violation of the school code is determined not to be a manifestation of the child’s disability, school personnel may apply the relevant disciplinary procedures to children with disabilities in the same manner and for the same duration as the procedures would be applied to children without disabilities. Answer to Question F-5.
IDEA’s Requirements for FBAs and BIPs
The IEP Team must conduct an FBA and implement a BIP when the LEA, parent, and relevant members of the IEP Team determine that the child’s conduct that resulted in a change of placement was a manifestation of the child’s disability because the conduct was caused by, or had a direct and substantial relationship to, their disability, or the conduct was a direct result of the LEA’s failure to implement the IEP. Answer to question G-1.
Provision of Services During Periods of Removal
An LEA is required to provide services during periods of removal to a child with a disability who has been removed from their current placement for 10 school days or less in that school year, only if it provides services to a child without disabilities who is similarly removed. Although not required, LEAs are encouraged to provide services during such short-term removals to assist children with disabilities to continue to make progress toward their IEP goals and to prevent them from falling behind. Answer to question H-1.
Once a child’s cumulative days of removal exceeds 10 days, the LEA must provide services in accordance with federal regulation. Answer to question H-2.
Protections for Children Not Yet Determined Eligible for Services under IDEA
A child who has not yet been identified as eligible for special education and related services under IDEA and has violated a code of student conduct — and their parent — may assert any of IDEA’s discipline protections in circumstances where the LEA is deemed to have knowledge that the child is a “child with a disability” before the behavior that precipitated the disciplinary action occurred. Answer to question I-1.
Application of IDEA Discipline Protections in Certain Specific Circumstances
Preschool children with disabilities aged three through five who receive services necessary for FAPE under IDEA are entitled to the same disciplinary protections that apply to all other IDEA-eligible children with disabilities, including a manifestation determination review when a proposed disciplinary removal constitutes a change of placement. Answer to question J-1.
Children with disabilities who attend public charter schools, and their parents, retain all IDEA rights and protections. Answer to question J-4.
If a State or LEA operates virtual schools or offers virtual instruction, children with disabilities whose needs can be met through virtual learning must have an IEP implemented in a way that provides all the services and supports necessary for the child to receive FAPE through such service delivery. Answer to question J-5.
A child with a disability placed by an LEA in a private school or facility as a means of providing FAPE has all the rights of a child with a disability who is served by an LEA. Answer to question J-7.
Resolving Disagreements
A parent of a child with a disability who disagrees with an LEA’s decision regarding the child’s placement or a determination of whether their child’s conduct was or was not a manifestation of the child’s disability may appeal the decision by requesting a hearing, which is done by filing a due process complaint. Answer to question K-1.
An LEA that believes that maintaining the current placement of the child is substantially likely to result in injury to the child or others may challenge the requirement by requesting a hearing. Answer to question K-2.
State Oversight and Data Reporting Responsibilities
The SEA, under its general supervisory responsibilities must ensure that LEAs in the State meet the program requirements under IDEA with a particular emphasis on those requirements that are most closely related to improving educational results and functional outcomes for children with disabilities. The inappropriate use of suspension, expulsion, and other exclusionary removals significantly limits the ability of children with disabilities to receive educational benefit consistent with their IEPs. Therefore, SEAs should pay particular attention to LEA and Statewide discipline data and discipline policies, procedures, and practices when exercising their general supervisory responsibilities. Answer to question L-1.
IDEA requires States to collect data on the number of children with disabilities who are subjected to long-term suspensions or expulsions. Further, States must disaggregate the data by race and ethnicity and examine the data to determine if significant discrepancies are occurring in the rate of long-term suspensions and expulsions of children with disabilities: (1) among LEAs in the State; or (2) compared to the rates for nondisabled children within those LEAs. If the SEA finds that significant discrepancies are occurring, the SEA must review and, if appropriate, revise (and/or require the affected LEA to revise) its policies, procedures, and practices relating to the development and implementation of IEPs, the use of positive behavioral interventions and supports, and procedural safeguards. Answer to question L-4.
POSITIVE, PROACTIVE APPROACHES TO SUPPORTING CHILDREN WITH DISABILITIES: A GUIDE FOR STAKEHOLDERS
Proactively Addressing Disparities in, and Negative Outcomes from, Exclusionary Discipline
A culturally and linguistically responsive multi-tiered system of supports (MTSS) is a comprehensive prevention framework designed to improve developmental, social, emotional, academic, and behavioral outcomes using a continuum of evidence-based strategies and supports. Page 4.
“Universal Design for Learning” is an MTSS framework to improve and optimize teaching and learning based on scientific insights into how humans learn. UDL challenges educators to consider how to intentionally design instruction and assessment to promote multiple means of engagement, representation, and action/expression. In doing so, UDL is rooted in a strengths-based approach to learning for all children, and research has demonstrated that UDL can increase developmental outcomes and academic achievement, including for children with disabilities. Page 5-6.
“Positive Behavior Interventions and Supports” is an MTSS framework focused on improving behavior by integrating data, systems, and evidence-based practices within three tiers of support: universal, targeted, and individual. These tiers are fluid, and the amount of support and interventions should be differentiated over time and across settings based on the child’s needs. Using this tiered system, all children would benefit from universal supports and services, while smaller groups that need more targeted and intensive supports and services would receive them. Page 6.
“Functional Behavioral Assessment” is a process for identifying the reasons behind, or factors contributing to, a child’s behavior. This process is rooted in the understanding that behavior is a form of communication and can provide a deeper understanding of what a child is trying to convey through their behavior. By investigating the conditions and other factors that contribute to the occurrence of the behavior, the response that the behavior elicits, and the reasoning for the continuation of the behavior, the FBA process provides useful information to inform the development of appropriate, effective interventions that address the root cause of the behavior, rather than using a punitive approach as an attempt to stop or reduce the behavior. Page 8.
Investing in School and Educator Capacity
To meet the needs of all children, proactive, evidence-based programs and school-wide approaches should be implemented in a culturally and linguistically responsive way that affirms the multi-faceted identity of each child. The MTSS framework’s use of data-based decision making provides an opportunity to objectively examine disparities and ensure equity in implementation of discipline policies across groups of children. In general, when schools and early childhood programs implement practices that include setting high expectations for all children, recognizing and affirming children’s multi-faceted backgrounds and cultures to strengthen their learning, and providing access to effective instruction and resources for learning, children are given an equitable opportunity to learn and achieve more positive outcomes. Emerging evidence suggests that effective practices include strengthening relationships with children; embedding culturally and linguistically supportive practices within early childhood programs, schools, and classrooms; and developing and implementing policies that support equity. Page 10.
Federal Funding Available to Address Disparities in, and to Reduce the Use of, Exclusionary Discipline
IDEA requires LEAs to meet the functional, including behavioral, needs of eligible children with disabilities as part of their obligation to provide FAPE. Thus, IDEA Part B funds can be used to provide support and direct services related to addressing the behavior of children with disabilities, including technical assistance and professional development and training in this area. Page 12.
SEAs may use the IDEA section 611 funds they reserve for State-level activities, other than administration, for support and direct services, including technical assistance, personnel preparation, and professional development and training; to assist LEAs in providing positive behavioral interventions and supports and mental health services for children with disabilities; and to support capacity building activities and improve the delivery of services by LEAs to improve results for children with disabilities. Page 12-13.
IDEA funds may be used to provide behavioral supports with “Coordinated Early Intervening Services” (CEIS) and the Elementary and Secondary Education Act of 1965 (ESEA) allows for some funds to be used to support MTSS, particularly Title II funds for professional development. Page 13-14.
Federal Resources to Support State and Local Efforts to Address Disparities in, and Reduce the Use of, Exclusionary Discipline
In September 2021, the Department released “Supporting Child and Student Social, Emotional, Behavioral and Mental Health” to provide information and resources to enhance the promotion of mental health and the social and emotional well-being among children and students. That resource highlights seven key challenges to providing school- or program-based mental health support across early childhood, K–12 schools, and higher education settings, and presents seven corresponding recommendations. Page 14.
Additionally, the Department funds several technical assistance centers related to behavior that can be accessed by SEAs, LEAs, schools, early childhood programs, and educators. Page 14. Below is a list of the Department funded technical assistance centers:
1. National Technical Assistance Center on Positive Behavioral Interventions and Supports – http://www.pbis.org
6. Center to Improve Social and Emotional Learning and School Safety (CISELSS) – https://selcenter.wested.org/
7. National Center on Safe Supportive Learning Environments (NCSSLE) – https://safesupportivelearning.ed.gov/
Should you have any questions or concerns, please do not hesitate to contact us.
[1] Chu, E.M., & Read, D.D. “Exclusion and Urban Public High Schools: Short- and Long-Term Consequences of School Suspensions.” American Journal of Education, 124 (August 2018). Available at: https://www.journals.uchicago.edu/doi/pdf/10.1086/698454 Gerlinger, J, Viano, S, Gardella, J.H., Fisher, B.W., Curran, F. C., Higgins, E. M. (2021). Exclusionary School Discipline and Delinquent Outcomes: A Meta-Analysis, Journal of Youth and Adolescence 50:1493-1509.
[2] U.S. Department of Education, Office for Civil Rights. “An Overview of Exclusionary Discipline Practices in
Public Schools for the 2017–2018 school year: Civil Rights Data Collection.” June 2021. Available at:
https://www2.ed.gov/about/offices/list/ocr/docs/crdc-exclusionary-school-discipline.pdf
[3] Id.
[4] 1 U.S. Department of Education, Office for Civil Rights. “2017–18 Civil Rights Data Collection: The Use of
Restraint and Seclusion on Children with Disabilities in K–12 Schools.” October 2020. Available at:
https://www2.ed.gov/about/offices/list/ocr/docs/restraint-and-seclusion.pdf. As noted in the source material, the
counts for students who were subjected to physical restraint, students who were subjected to mechanical restraint,
and students who were subjected to seclusion are not mutually exclusive. For example, if a student was physically
restrained and secluded, the student would be counted once in each category. Thus, the total of 101,990 may not
represent the actual number of individual students affected.
[5] U.S. Department of Education, EDFacts Data Warehouse (EDW): “IDEA Part B Child Count and Educational
Environments Collection,” 2019–20. Available at: https://data.ed.gov/dataset/idea-section-618-state-part-b-childcount-and-educational-environments/resources.
[6] 3 U.S. Department of Education, EDFacts Data Warehouse (EDW): “IDEA Part B Discipline Collection,” 2019–20.
Available at: https://data.ed.gov/dataset/idea-section-618-state-part-b-discipline/resources