Individuals with Disabilities Education Act: Proposed Amendment on Uniform Disciplinary Policies

Individuals with Disabilities Education Act: Proposed Amendment on Uniform Disciplinary Policies

98-385 A
Updated May 5, 1998
CRS Report for Congress
Received through the CRS Web
Individuals with Disabilities Education Act:
Proposed Amendment on Uniform Disciplinary
Policies
(name redacted)
Legislative Attorney
American Law Division
Summary
An amendment to the disciplinary procedures under the Individuals with
Disabilities Education Act (IDEA) was proposed and withdrawn by Senators Gorton and
Faircloth to H.R. 2646. This amendment would have allowed state and local
educational agencies to establish and implement uniform policies with respect to
discipline for all children within their jurisdiction, including children with disabilities,
and was identical to one offered and defeated during debate on IDEA reauthorization
last year. The amendment would have essentially returned the authority to the schools
regarding discipline and the cessation of educational services that existed prior to the
enactment of P.L. 94-142, the predecessor to IDEA. Although the proposed amendment
was withdrawn, Senator Gorton indicated that it would be added to another education
bill. This report discusses the arguments for and against the amendment's adoption and
analyzes the legal implications of the proposed amendment. For a more detailed
discussion of the existing disciplinary provisions in IDEA see Jones, "Individuals with
Disabilities Education Act: Discipline Provisions in P.L. 105-17," CRS Report 98-42
(January 12, 1998).
Uniform Discipline Policies Amendment
Senators Gorton and Faircloth proposed an amendment to H.R. 2646, a bill to amend
the Internal Revenue Code to allow tax-free expenditures from education individual
retirement accounts for elementary and secondary school expenses which is currently
pending in the Senate. The amendment, no. 2061, stated that section 615(k) of the
Individuals with Disabilities Education Act shall be amended by adding the following
provision: "Uniform disciplinary policies.--Notwithstanding any other provision of this
Act, each State educational agency or local educational agency may establish and
implement uniform policies with respect to discipline and order applicable to all children
within its jurisdiction to ensure safety and an appropriate educational atmosphere in its
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schools."1 The amendment was withdrawn from H.R. 2646 but Senator Gorton indicated
that "The present Gregg-Gorton amendment, or something very similar to it, will be
presented at an early opportunity on some other bill that relates directly or indirectly to
education. It will not go away. But I hope the next time that it is presented, it is presented
on a bill that is almost certain to be signed by the President of the United States rather
than vetoed by the President of the United States."2
The supporters of this type of amendment argue that it would eliminate a double
standard with respect to the discipline of children with and without disabilities and give
decision-making authority to the state and local authorities so they could tailor their
policies to their particular situations.3 The opponents of such an amendment argue that
it would eliminate the rights of children with disabilities by giving school officials
authority to remove these children if their behavior violated a uniform policy even if such
behavior was a manifestation of a disability.4
Current Law
Under current law, a child with a disability is not immune from disciplinary
procedures but neither are those procedures identical to those for children without
disabilities. IDEA contains detailed due process protections for children with disabilities
including the "stay-put" provision requiring that unless the state or local educational
agency and the parents otherwise agree, the child shall remain in the then current
educational placement of the child during any dispute over the child's education.5 If a
parent feels that a child with a disability is not receiving a free appropriate public
education, a parent may invoke due process and ask for a hearing on the issue.
These provisions were included in IDEA due to congressional findings that children
with disabilities were often not receiving an education or were receiving an inappropriate
education. The House and Senate Reports for P.L. 94-142 both noted statistics indicating
that there were more than eight million children with disabilities and that "only 3.9
million such children are receiving an appropriate education, 1.7 million handicapped
children are receiving no educational services at all, and 2.5 million handicapped children
are receiving an inappropriate education."6 In addition, at the time of enactment of P.L.
94-142 there were a number of judicial decisions finding constitutional infirmities with
the lack of education for children with disabilities when the states were providing
1 144 Cong. Rec. S2436 (daily ed. March 23, 1998).
2 144 Cong. Rec. S3353 (daily ed. April 21, 1998)(Remarks of Senator Gorton).
3 See 143 Cong. Rec. S4402 (daily ed. May 14, 1998)(Remarks of Senator Gorton).
4 See 143 Cong. Rec. S4403 (daily ed. May 14, 1998)(Remarks of Senators Frist and
Harkin).
5 20 U.S.C. §1415(j).
6 H.Rep.No. 332, 94th Cong., 1st Sess. 11 (1975); S.Rep.No. 168, 94th Cong., 1st Sess. 8,
reprinted in U.S.Code Cong. & Ad. News 1425, 1432.

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education for children without disabilities.7 In fact, one of these decisions, Mills v. Board
of Education, involved seven school age children who had been excluded from the public
schools and had been labeled as behavior problems, mentally retarded, emotionally
disturbed, or hyperactive and received no education. The district court found that this
denial of an education was a denial of constitutional due process.
The protections against a school unilaterally ceasing services to a child with a
disability do not mean that school officials have no options regarding disciplining such
children. School personnel may
! suspend a child with a disability for up to ten days,
! place a child with a disability in an interim alternative educational setting for up
to forty five days for situations involving weapons and drugs,
! ask a hearing officer to order a child to be placed in an interim alternative
educational setting for up to forty-five days if it is demonstrated that the child is
substantially likely to injure himself or others in his current placement,
! conduct a manifestation determination review to determine whether there is a link
between the child's disability and the misbehavior. If the child's behavior is not a
manifestation of a disability, long term disciplinary action such as long term
suspension or expulsion may occur, except that educational services may not cease.
Legal Implications of the Amendment
If an amendment like the one proposed to H.R. 2646 were to be enacted, states and
localities would be free to establish and implement their own disciplinary policies as long
as these were uniformly applied to all children. This would essentially return the
authority to the schools regarding discipline and the cessation of educational services that
existed prior to enactment of P.L. 94-142. The states and localities would be free to
establish disciplinary policies that are the same as current law, or more or less stringent
than current law.
It could be argued that the requirement for uniformity would be a distinction from
the pre P.L. 94-142 law and would provide some protections for children with disabilities
since they could not be specifically singled out for exclusion. However, it could also be
argued that the requirement for uniformity might work to the detriment of children with
disabilities. For example, if a school district had a policy for expulsion for all children
who injured other children, a situation could arise where a child with a seizure disorder
could accidently hit and injure another child. If treated uniformly with the situation
involving a child who beat up another child, both situations could result in expulsion.
Similarly, if a school's policy was suspension or expulsion for the use of profane
7 PARC v. State of Pennsylvania, 343 F.Supp. 279 (E.D. Pa. 1972); Mills v. Board of
Education of the District of Columbia, 348 F.Supp. 866 (D.D.C. 1972). The House Report for
P.L. 94-142 indicated that following these decisions there were "46 cases which are completed
or still pending in 28 States." H.Rep.No. 332, 94th Cong., 1st Sess 3 (1975).

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language, a child with Tourette's syndrome which is often characterized by uncontrollable
verbal expressions, could be treated similarly to a child without a disability and be
subjected to the same disciplinary procedures under the proposed amendment.
An amendment like that proposed to H.R. 2646 would only change IDEA's due
process protections with regard to discipline and order; a parent's due process rights with
regard to placement and other non disciplinary matters would be unchanged. However,
the proposed amendment could be a significant limitation on the due process protections
available to children with disabilities since parents would not have a federally guaranteed
right to challenge the change in placement of a child with a disability resulting from
disciplinary action. The exact limitations, if any, would depend on the specific policies
that the states and localities adopted.
Another issue raised by the amendment proposed to H.R. 2646 is whether parents
could pursue other legal avenues when disputes arise concerning discipline. The Supreme
Court has not dealt with the constitutional issues presented by PARC and Mills, but it has
discussed these cases in the context of IDEA's statutory provisions. In Board of Hendrick
Hudson School District v. Rowley, 458 U.S. 176 (1982), the Court examined the
legislative history of P.L. 94-142 and noted the importance attached to PARC and Mills,
finding that the principles they established were the principles that guided the drafters of
the legislation. Similarly, in Honig v. Doe, 484 U.S. 305 (1988), the Court found that the
decisions in PARC and Mills "demonstrated that many disabled children were excluded
pursuant to state statutes or local rules and policies, typically without any consultation
with, or even notice to, their parents." Id. At 309-310.
It could be argued that if language like that in the amendment proposed to H.R. 2646
were enacted, constitutional arguments may be advanced challenging the policies of state
and local educational agencies. It might also be possible for parents to sue under the
Americans with Disabilities Act (ADA), 42 U.S.C. §§12101 et seq., or section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. §794. The likelihood of success of cases brought
under the constitution and these statutes is not clear since the Supreme Court has not
spoken on the issues and lower courts have infrequently addressed them due to the
existence of the statutory protections of IDEA.

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