Today’s school leaders face a tsunami of challenges related to special education. In addition to staffing shortages and chronic problems, leaders worry about school shootings. Some of the recent tragedies including those in Parkland, FL, and Uvalde, TX, were perpetrated by students with disabilities (SWDs) who had previously exhibited seriously disruptive or violent behavior. 

Because of heightened concerns about school safety, administrators often try to remove disruptive/violent students, and sometimes even attempt to work around the disciplinary requirements of the Individuals with Disabilities Education Act (IDEA).  

Because resorting to exclusionary discipline procedures such as suspension or expulsion may be illegal if done too quickly, school leaders should instead increase their use of Positive Behavioral Interventions and Supports (PBIS). This article summarizes the current challenges of disciplining SWDs who are violent and disruptive. Then, it provides legal guidance and recommendations based on federal policy and court decisions.  

Challenges and Legal Violations 

When compared to their peers without disabilities, SWDs not only have 1) higher rates of mental health concerns, suicide attempts, and harassment (LaSalle et al., 2018), but 2) they also face more barriers to accessing mental health support (Skaar et al., 2020). The U.S. Department of Education (2021) has warned that the pandemic exacerbated the existing mental health crisis and urged schools to provide more support. However, schools have limited funding and lack enough adequately trained personnel.   

Due to these challenges, SWDs may be exhibiting more serious disruptive/violent behaviors, resulting in more suspensions and expulsions. Not only are these exclusionary and punitive forms of discipline not ideal because they may not address the targeted misbehavior, but they are illegal when schools fail to follow procedures mandated by IDEA.  

The U.S. Department of Education (2016) discourages short-term, exclusionary discipline, including removing students “from their classroom, from school grounds, or school activities either formally (e.g., suspension) or informally (e.g., asking the parent to keep the student at home for a day or more)” (p. 3). Yet, it appears that some school leaders attempt to bypass IDEA’s requirements. For example, they may think IDEA does not apply if students are formally suspended/expelled and are instead placed in virtual learning, in-school suspension, or partial-day suspension. 

When school leaders remove SWDs from classrooms and place them in more restrictive settings without following IDEA’s disciplinary requirements, they are violating IDEA’s least restrictive environment (LRE) mandate. Under this requirement, SWDs are to be educated with children who are nondisabled to the maximum extent appropriate, and “special classes, separate schooling, or other removal of SWDs from the regular educational environment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily” (34 C.F.R. § 300.114(a)). 

Legal Guidance 

To comply with IDEA, school leaders must follow special procedures when they seek to remove an SWD for more than 10 consecutive school days or in a series of removals that constitutes a pattern (20 U.S.C. § 1415(k)(1)(E-G)). These unique protections are also available to students who qualify under IDEA but have not yet been identified as SWDs. Importantly, because removing an SWD for more than 10 days would be a change in placement, the IEP (Individualized Education Plan) team must follow these two steps: 

Step 1: Hold a manifestation determination meeting where the IEP team determines whether the student’s misbehavior (i.e., the reason they are being disciplined) was either 1) caused by or directly and substantially related to the student’s disability or 2) the direct result of the school’s failure to implement the IEP.   

  • If the team concludes the misbehavior was a manifestation of the student’s disability or caused by the school’s failure to follow the IEP, then the student cannot be removed from their placement for more than 10 days. For example, if a student was disciplined for being disruptive, but the IEP team determined these “misbehaviors” occurred because the student had Tourette Syndrome, then the student could not be removed for morethan 10 days. 
  • If the team determines that the misbehavior was not due to the student’s disability or an IEP implementation failure, then the student could receive the same disciplinary sanction that a student who is not disabled would receive. 

Step 2: Consider positive behavioral supports such as functional behavioral assessments (FBAs) and behavioral intervention plans (BIPs). FBAs are evaluations that determine the function of undesired behavior (e.g., student hits others in attempts to escape difficult tasks), and BIPs are written plans to reduce the undesired behavior (e.g., reward system).  

  • If the student is to be removed for more than 10 days, the student is entitled to an intervention designed to ameliorate the undesirable behaviors (e.g., FBA and BIP). 
  • Administrators and IEP teams should not wait until there is a potential removal of an SWD to determine that the student would benefit from an FBA or BIP. Any time a student’s behavior impedes their learning or that of others, the IEP team shall “consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior” (20 U.S.C. §1414(d)(3)(B)(i)).  

Importantly, a school leader could remove an SWD immediately, without first conducting a manifestation determination, if there are safety concerns, but only if a student 1) caused serious bodily injury, 2) possessed a weapon, 3) knowingly possessed/used illegal drugs, or 4) sold/solicited a controlled substance. 

Any time an SWD is removed from placement, the school must ensure the student continues to receive a free appropriate public education (FAPE) (i.e., continues to receive services and work on IEP goals). Courts have interpreted this FAPE requirement to extend to schools providing Positive Behavioral Interventions and Supports. In Enterprise City Bd. of Educ. v. S.S. and J.S. (2020), a federal district court ruled that a school’s failure to incorporate PBIS into the IEP was a denial of FAPE. The court ordered the school to provide a BIP to address the student’s behavioral needs. Similarly, in R.E. v. New York City Dept. of Educ. (2012), the Second Circuit Court of Appeals affirmed a lower court decision that a school’s failure to conduct an adequate FBA and BIP was a denial of FAPE. The court reasoned that failing to conduct an adequate FBA was a serious procedural violation for this particular student because without an FBA, the school lacked information about the student’s behaviors and could not appropriately address the behaviors in the IEP.  

However, the Second Circuit Court has also clarified that the failure to conduct an FBA does not automatically constitute a denial of FAPE. In situations where an FBA was not conducted, courts have scrutinized IEPs to consider whether they adequately addressed the student’s behaviors (M.W. v. New York City Dept. of Educ., 2013). Courts have ruled that failure to conduct an FBA—or failure to conduct an FBA sooner—did not result in a FAPE violation when the schools had implemented strategies to address the student’s behavioral needs (e.g., H.L. v. Tri-Valley Sch. Dist., 2023). A key issue to determine when an FBA may be required is whether the student’s educational progress may be impeded by behavioral issues. 

Recommendations

Based on the challenges, policy guidance, and court decisions, school leaders should implement and monitor the effectiveness of PBIS such as FBAs and BIPs for SWDs exhibiting seriously disruptive and/or violent behavior. The law requires that these interventions must be considered at manifestation determination meetings and when a student’s educational progress may be impeded by behaviors, but schools often implement interventions too late. Therefore, school leaders should strive to provide more than the minimum legal requirements. Instead, they should proactively ensure positive behavioral supports are in place before students’ behavior escalates. A few strategies include: 

  • Collect and analyze not only discipline data but also intervention data to compare how often SWDs receive exclusionary discipline versus PBIS.  
  • Schedule IEP meetings to consider PBIS before the 10-day mark and as soon as an SWD is exhibiting disruptive/violent behaviors repeatedly. Conducting FBAs more often than legally required may reduce disruptive/violent behaviors. 
  • Evaluate the effectiveness of the existing BIPs on a regular basis instead of waiting for an exclusionary discipline situation to arise. 
  • Recruit and hire staff with a specialization in PBIS. 
  • Organize professional development for all staff (not only teachers) with a goal to increase awareness and skills surrounding PBIS. 
  • Involve guidance counselors, social workers, mental health professionals, and other school personnel to address serious/disruptive behavior with a positive team approach. 
  • Continue to increase your legal literacy on this topic by reading more in-depth guidance from the U.S. Department of Education (2022).

Janet R. Decker, JD, PhD, is an associate professor of education at Indiana University and a co-author of Legal Rights of School Leaders, Teachers, and Students. Nicole D. Snyder, Esq., is an attorney and chair of the special education practice at McKenna Snyder LLC. Cynthia Dieterich, PhD, is a professor of education at Baldwin Wallace University. 

References 

Enterprise City Bd. of Educ. v. S.S. and J.S., 2020 WL 3129575 (M.D. Ala. 2020).  

H.L. v. Tri-Valley Sch. Dist., 2023 WL 2505491 (M.D. Penn. 2023). 

La Salle, T., George, H.P., McCoach, D.B., Polk, T., & Evanovich, L.L. (2018). An examination of school climate, victimization, and mental health problems among middle school students self-identifying with emotional and behavioral disorders. Behavioral Disorders. 43(3). 383. doi.org/10.1177/0198742918768045 

M.W. v. New York City Dept. of Educ., 725 F.3d 131 (2nd Cir. 2013). 

R.E. v. New York City Dept. of Educ., 694 F.3d 167 (2nd Cir. 2012). 

Skaar, N.R., Etscheidt, S.L., & Kraayenbrink, A. (2020). School-based mental health services for students with disabilities: Urgent need, systemic barriers, and a proposal. Exceptionality. 27(4). 1–15. doi:10.1080/09362835.2020.1801437 

U.S. Department of Education. (2016, August 1). Dear colleague letter on PBIS in IEPs. Office of Special Education and Rehabilitative Services. sites.ed.gov/idea/idea-files/osep-dear-colleague-letter-on-ensuring-equity-and-providing-behavioral-supports-to-students-with-disabilities

U.S. Department of Education. (2021). Supporting child and student social, emotional, behavioral, and mental health needs. Office of Special Education and Rehabilitative Services. ed.gov/documents/students/supporting-child-student-social-emotional-behavioral-mental-health.pdf 

U.S. Department of Education. (2022, July 19). Dear colleague letter on implementation of IDEA Discipline Provisions. Office of Special Education and Rehabilitative Services. sites.ed.gov/idea/files/dcl-implementation-of-idea-discipline-provisions.pdf