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Separating Fact From Fiction in Special Education Reform

October 22, 2004 (OCLB SpEd Primer - Discipline pt3)

OCTOBER 22, 2004


We began our OCLB Special Education Primer discipline section by introducing the broad concerns that challenging behavior can present to educators, especially when the behavior is connected to a student's disability. Congress, in the 1997 amendments to the Individuals with Disabilities Education Act [IDEA '97], mandated that educators and Individualized Education Program [IEP] Teams "consider" a student's behavior challenges and needs as part of the total educational programming package. IDEA '97 tries to put proper behavior planning into the IEP.

If student deficits increase the likelihood that behavior can interfere with the learning of the student or his/her classmates, then IDEA '97 encourages schools to put a plan in place to teach skills and change circumstances so that the behavior does not occur. We explained how functional assessments of behavior [FBA] and behavior intervention plans [BIP] help IEP Teams identify and evaluate behavior needs and develop individualized programs to address those needs.

The second OCLB discipline section described how IDEA '97 directs educators and school administrators to address proposed long-term suspensions and expulsions when the subject of the proposed discipline is a student who has disabilities. We set out the "manifestation determination" process that evaluates the effectiveness of student behavior programming as set forth in his/her IEP and BIP. We detailed how an IEP Team should review and ensure that the student's IEP and BIP, if applicable, are appropriate and are being followed. The manifestation determination process also requires IEP Teams to consider whether the student's disability impaired her/his ability to understand or control the behavior in question. If the IEP and BIP were appropriate and being followed, and if the student's ability to understand and control the behavior were not impaired by his/her disability, then IDEA '97 permits schools to suspend or expel the student for more than 10 days. A student suspended or expelled remains entitled to receive those services required by her/his IEP, even though the services are delivered in an alternative educational setting.

What Does the Data Say? The GAO Reports

IDEA '97's implementing regulations were not issued until March, 1999. The states then required time to modify their state laws and rules to put IDEA '97 into place. In Michigan, the modification process was not completed until June, 2002, a scant 9 months before H.R.1350 was introduced into the House of Representatives. It is difficult under the best of circumstances to say how well individual states have fared in using the law's long-term disciplinary procedures, given the implementation time.

IDEA '97's discipline procedures also have escaped critical scientific study to this point. In January, 2001 the United States General Accounting Office [GAO] issued a report on student discipline under IDEA '97. The Report, GAO-01-210 -- Student Discipline and IDEA, observes that "at the time we did our work [to collect limited data on disciplinary actions] had not progressed sufficiently to provide us with any usable data." [p.5] However, the Report notes that 272 schools were surveyed to provide data on discipline, and notes that "IDEA appears to play a limited role in schools' ability to properly discipline students." [p.18]

In May, 2003 – two months after H.R.1350 was introduced in the House, the GAO issued GAO-03-550 -- Special Education. This Report, summarizing the findings of GAO-01-210, noted that in the 2001 Report "[w]e found that IDEA regulations played only a limited role in affecting schools' ability to properly discipline students and that in cases of serious misconduct, regular and special education students were disciplined in a similar manner." [p.6, emphasis added]

The 2003 Report also found while doing its research that "[d]isciplinary placements of special education students were similar to those of other students, based on our survey results. In addition, schools and districts generally used the same criteria in determining where to place students. However, administrators reported considering cumulative days that a student had been removed when placing special education students but not when making placement decisions for regular education students." [pp.8-9, emphasis added]

So even though data on IDEA '97 disciplinary provisions is understandably thin, the data that does exist suggests that students who have disabilities are treated similarly to general education students. The data also suggests that IDEA 97' has not become an obstacle or barrier to schools' disciplinary practices.

Why Amend IDEA '97 Disciplinary Provisions Now?

Our Children Left Behind has been asking this question since March, 2003. The President's Commission on Excellence in Special Education, appointed by President Bush and charged with casting a broad and open eye on special education in America, did not focus on or find disciplinary provisions noteworthy.

Perhaps the "best" explanation for amending the disciplinary provisions appears in an April 29th memo from House Republican Congressmen John Boehner and Mike Castle to their Republican House Colleagues. In the memo, they justified the proposed H.R.1350 changes with the following explanation:

"Under current law, discipline procedures for children with disabilities and non-disabled children can be significantly different, even for serious offenses such as bringing a weapon to school. This is unfair to teachers, students, and even children with disabilities. The proposal in H.R.1350 would allow schools, at their discretion and with the ability to consider all circumstances including a disability, to assign the same punishment for disabled and non-disabled children. However, even in the case of suspension, a child with a disability would continue to receive educational services to ensure progress is made on an IEP. This improves safety for schools while ensuring protections for children with special needs." [Bold and italic emphasis added; underline emphasis original.]

The claims in the Boehner/Castle memo were not substantiated in the 2001 or 2003 GAO reports we discussed above. The anecdotal information we have seen in the 19 months since H.R.1350 was introduced appears to focus on two reasons to change the discipline provisions. First, as the Boehner/Castle memo suggests, is the claim that IDEA '97 creates a two-tiered disciplinary system. Second, it is asserted that IDEA '97's manifestation determination measures are burdensome.

The justification for amending the disciplinary provisions of IDEA '97 is debatable. Suffice it to say that the IDEA '97 system has only been thoroughly implemented for a limited period of time, and the data that purports to evaluate its fairness and the efficacy of its application appears to show that IDEA is neither unfair to general education students nor overly burdensome to the process.

The House/Senate Conference Committee already is meeting to finalize the IDEA reauthorization process. We encourage OCLB readers to continue to visit our Web site to learn about the Committee's progress and how you can help to influence the final product.

Tricia & Calvin Luker, today's

© 2003 The E-Accountability Foundation