The honeymoon period is over, and we’re back to getting calls about students who haven’t adjusted well to being back in the classroom. For students with disabilities, addressing behavioral and safety concerns is complicated by the requirements of the IDEA and Section 504. As a result, the federal Office for Civil Rights (OCR) and Office of Special Education Programs (OSEP) released guidance documents meant to help schools understand how to best fulfill their responsibilities for meeting the needs of students with disabilities as it relates to student discipline. We recognize that addressing disruptive and unsafe behaviors in schools is not an easy task, and even with this guidance it will remain difficult. However, this new guidance does provide some keen insight and affirmations. Here are some key takeaways:
1. You (generally) have been doing things right. It is KSB’s opinion that the way we in South Dakota and Nebraska have been thinking and talking about the intersection of students with disabilities, discipline, and safety concerns is fundamentally right. The guidance from OCR states that “the FAPE requirements of Section 504 require a school to address a student’s disability-based behavior by adjusting the student’s placement rather than implementing discipline.”
In other words, utilizing placement to address issues when appropriate rather than traditional forms of discipline remains the preferred approach. As a result, those knowledgeable about the student’s disability and the district’s related obligations should be involved early and often in responding to safety and behavioral issues. If a student engages in disability-based misconduct and the school initiates disciplinary action without considering whether a change in placement would be more appropriate, the student must be returned to their prior placement unless their parent agrees to a change.
2. It’s about the kids. The new guidance makes clear that schools can consider the impact of a student’s behavior on the educational environment when making decisions. OSEP says, “When a child with a disability demonstrates behavior that impedes the child’s learning or that of others, appropriate behavioral supports may be necessary to ensure that the child receives FAPE.” Similarly, the OCR guidance states that “the student’s Section 504 team is responsible for considering the impacts of the behavior on other students when determining the placement for the student with a disability.” When looking at the whole child and the whole placement this necessarily requires a consideration of whether the child’s behavior prohibits them from appropriate peer interactions and learning environment engagement.
Now if this sounds familiar, that is because this is what we have been saying for years, but it is comforting to hear it coming from the federal level. The 8th Circuit has long held that behavior impacting others can be considered by an IEP team, but other courts have disagreed.
3. Safety First. When in doubt, the priority is to keep everyone safe and then worry later. The guidance does clarify that OCR will count most exclusions related to behavior including on an emergency basis towards the ten day window when looking at a significant change in placement. This includes those informal removals where parents are asked to come pick up their child. However, OCR recognizes that there are times where safety concerns may require an immediate removal. If this were to happen then an, “OCR investigation would review the specific facts to determine whether the school’s conduct was reasonably necessary to ensure safety, including under circumstances where an immediate removal would result in a pattern of removals.”
What does this mean? Safety is always the first priority, and then if we have to address procedural compliance afterwards, we will do that.
We know how difficult it is when a student’s behavior is impeding their learning or that of their peers. If you have any questions about these issues, or any other matter affecting your school, please feel free to reach out to Karen, Steve, Bobby, Coady, Tyler, Sara, or Jordan, or send us all an email at ksb@ksbschoollaw.com.