Because (full) inclusion is a goal rather than a right, courts have approved restrictive placements if educators demonstrated that students could neither function in regular classes nor benefit in such settings, even with supplementary aids and services.
In a particularly noteworthy provision, if parents have insurance, educators can ask them to file claims to help defray the costs associated with educating their children with special needs. However, if parents are unwilling or unable to file claims with their insurance companies, the level of services children receive must continue. Further, because special education services are at no cost to parents, they cannot be expected to use their insurance if doing so would result in additional financial burdens, such as lifetime caps or higher premiums.
As important as the “appropriate” component of FAPE is, because the IDEA offers little guidance beyond describing an appropriate education as one consisting of special education and related services provided in conformance with students’ individualized education programs (IEPs), the courts have had to intervene.
When educators denied the parents of a hearing-impaired elementary school student in New York their request for a sign-language interpreter, they unsuccessfully filed suit. Because the child received some educational benefit without the sign-language interpreter, the Supreme Court, establishing a minimal standard, ruled that the law did not require officials to provide her with one even though she might have achieved at a higher level with such help.
Because litigation continued regarding the level of services school boards had to provide, the Supreme Court revisited the meaning of FAPE in 2015’s Endrew F. v. Douglas County School District RE-1. This time, the Court raised the Rowley standard, holding that educators in Colorado failed to meet their duty under the IDEA because they did not offer a program resulting in some educational benefit for a child with autism.
In Endrew F., the Court declared that in order “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Not surprisingly, litigation continues over the parameters of FAPEs.
The cost of providing special education aside, discipline may be the most challenging issue facing educators working with students with disabilities.
The cost of providing special education aside, discipline may be the most challenging issue facing educators working with students with disabilities. Officials can suspend special education students temporarily and/or employ usual disciplinary sanctions not resulting in changes in their placements.
If necessary, educators may seek intervention from hearing officers or, in emergencies, courts, pending completion of due process hearings, if they can show that students are dangerous and that officials are unable to reach agreements with their parents over appropriate changes in placement.
The Supreme Court’s only case on disciplining special education students was 1988’s Honig v. Doe. Honig addressed whether educators in California could exclude two students who were suspended from school repeatedly for their violent and disruptive conduct related to, or as manifestations of, their disabilities.
In refusing to write a dangerousness exception into the law allowing for long-term suspensions and/or expulsions without due process, the Court affirmed that the IDEA’s stay-put provisions prohibit educators from unilaterally excluding students with disabilities from school for dangerous or disruptive actions that are manifestations of their disabilities during review proceedings.
The Justices held that officials could impose non-placement-changing procedures, such as “the use of study carrels, timeouts, detention, or restrictions of privileges,” and temporary suspensions for up to ten school days for students who posed an immediate threat to safety.
The Court noted that if educators and parents agreed, officials could place students in interim settings as proceedings progressed. If this approach failed, the Justices acknowledged officials could seek injunctive relief to remove disruptive students.
Because Honig did not resolve all of the issues surrounding disciplining students with disabilities, Congress created procedures in the IDEA’s 1997 and 2004 amendments. These changes permit educators to suspend special education students for no more than 10 school days if their misbehaviors are manifestations of, or caused by, their disabilities, provided the same sanctions apply to children without disabilities.
Prior to changing their placements for disciplinary reasons, educators and parents must meet to consider whether students’ (mis)behaviors were manifestations of, or caused by, their disabilities. The IDEA defines manifestations as conduct caused by, or having a direct and substantial relationship to students’ disabilities or as the direct result of the failure of educators to implement their IEPs correctly.
In making manifestation determinations, teams must weigh all relevant information, including evaluations, diagnostic tests, and student observations. If teams find that misbehaviors were not manifestations of students’ disabilities, educators can discipline them in the same manner as their non-disabled peers, except that they cannot completely terminate the delivery of FAPEs.
In an important addition, the IDEA allows educators to transfer students with disabilities to interim alternative settings for up to 45 days for possession of weapons, knowing possession of drugs, or inflicting serious bodily injury on other persons while at school, on school premises, or at school functions.
In defining “serious bodily injury,” the IDEA relies on another federal law, which describes the term as involving a substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty. A key condition here is that similar punishments must apply to students who are not disabled.
Next: The next installment of the four-part column will review due-process procedures and remedies when disputes arise over student placements.