Discipline of students with disabilities has to be different if the Section 504 prohibitions on disability discrimination are to have any value.  If a student’s impairment causes misbehavior, disciplining him exactly like everyone else will result in inequities.  When a student commits  a disciplinary infraction because of her disability, and the infraction results in her exclusion from school, the student has been excluded from school because of disability.  This treatment of a disabled student is the essence of discrimination; denial of public school participation because of disability.

To prevent a student with a disability from being unfairly excluded from school, Section 504 borrows from the IDEA standard, requiring that the 504 Team look at current evaluation data including behaviors giving rise to the proposed disciplinary action and ask whether the behaviors are caused by or had a direct and substantial relationship to the student’s disability or the behaviors were the direct result of the school’s failure to implement her Section 504 Plan.

34 CFE 300.530 (e).  Where the behavior is related to either disability or failure to implement the plan, no long-term disciplinary change of placement (over 10 days) is possible, nor is a short-term removal, which when viewed together with other short-term removals during the school year constitutes a cumulative pattern of exclusion.  Under Section 504, OCR has determined as a policy matter that a removal or exclusion of any kind from a student’s normal placement of more than 10 days constitutes a change of placement.  Honig v. Doe, 484 U.S. 305 (1988); S-1 v. Turlington, 635 F.2d 342 (1981).  The number of days comes from Goss v. Lopez, 419 U.S. 565 (1975).

Just because a student has a disability affecting behavioral control does not mean that everything he does is directly caused by his disability.  As a result, should the 504 Team determine that the behavior is unrelated to the disability or the school’s failure to implement the Section 504 Plan, the law is satisfied that the removal is not because of disability, and the student can be removed for the same amount of time that a nondisabled student would be removed under similar circumstances.

Section 504 disciplinary rules do not prohibit other types of disciplinary sanctions (such as denial of privileges, after-school, before-school or lunch detentions, etc), only those that exclude the student from school.  The notion that the discipline of students with disabilities is different from the discipline of nondisabled students does not mean that students with disabilities are never disciplined, even for behavior related to disability.  Instead, schools must focus on preventing behavior and on behavioral interventions that do not exclude eligible students form school in violation of the rules.

Here are two examples of common errors in discipline and behavior management:

The failure to have a Behavior Support Plan (BSP) when behavior impacts the student’s learning or the learning of those around him as part of the Section 504 Plan, is a Section 504 violation. Hacienda La Puente Unified Sch. Dist., 26 IDELR 666 (1997).

In a Minnesota case, the problem was compounded when the school refused to create a BSP, despite student behaviors and despite a parent request. When, four months after the request, the student committed an offense for which a long-term disciplinary removal was warranted, the school’s earlier failure to create a BSP stopped the proposed removal.  Again, a violation of Section 504.  Independent Sch. Dist. #279 Osseo Area Schs., 30 IDELR 645 (1999).  This example is why it is recommended that districts look carefully at the reasons behind the behavior and not wait for the 10 day exclusion, because the financial risk to a district can be extensive if a parent is successful demonstrating discrimination in litigation.  When a 504 Team does not meet to look for the “link” and the student is subjected to a long-term removal or a pattern of exclusion, there is no protection from exclusion on the basis of disability and the result is a Section 504 violation.

Additionally, the “pattern of removal” cannot be ignored by the 504 Team.  When OCR looks at discipline issues involving cumulative removals, it counts the days of removal over the course of a year to determine whether a pattern of exclusion has occurred.  The pattern of exclusion analysis is to be made on a case-by-case basis.  OCR will take into account all of the following factors: (1) the length of each removal; (2) the proximity of the removals to one another; (3) the nature of the behavior; and (4) the total amount of time the student is removed from his normal placement.  The longer each removal, the closer in time they are to each other, and the higher the total days of removal during the school year, the more likely OCR is to find that the district’s practices constitute an overall “significant change in placement,” which requires a prior Section 504 evaluation and link determination.  1988 OCR Memorandum, Long-Term Suspension or Expulsion of Handicapped Students. 

Just counting days is not enough.  As removals begin to add up, the Section 504 Team needs to be notified so that the student’s BSP can be reviewed, and if necessary, revised to address the new behaviors, or changed to better address the behaviors it has failed to manage.  Likewise, data about the disciplinary infraction (what did the student do?) and information about the disciplinary sanction help the 504 Team look for patterns of behavior, and also determine what types of rewards and punishments are effective. Where the data is either not maintained, or is maintained but not shared with the 504 Team, the school misses an excellent opportunity to prevent behavior, and exposes itself to a bad result should the parent complain and OCR investigate or should the parent file a complaint in federal court.  This review can also determine if further evaluation of the student is necessary.

Lastly, who makes the manifestation determination for a student with a 504 Plan?   The 504 Team must conduct the manifestation determination. The Section 504 regulatory provision at

34 C.F.R. 104.3 (c) (3) requires that school districts ensure that the determination that a student is eligible for special education and/or related aids and services be made by a group of persons, including persons knowledgeable about the meaning of the evaluation data and knowledgeable about the placement options.  Simply, a group of persons who know the student.   There is no requirement that a school psychologist is part of the 504 Team and therefore, the school psychologist may or may not be part of the 504 Team conducting the manifestation determination.

In conclusion, there is more to evaluating a disciplinary infraction of a student with a Section 504 Plan than counting days of exclusion.  The data collected from student behaviors drives the revisions to the Section 504 Plan to address behavioral interventions.   Continuously assessing the links between student behavior and student disability provide the best services for the student and prevents bad outcomes for districts when parents take actions against a district alleging discrimination.

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Alfred C. Maiello
Alfred Maiello

Alfred C. Maiello is the founding member of MBM and has represented area school districts as solicitor for 50 years. He counsels school districts and educational institutions on leading developments in school law and guiding them through their day-to-day and long-term challenges.