INDIVIDUALS WITH DISABILITIES EDUCATION ACT (IDEA)

A student with disabilities may be ordered to an appropriate interim alternative education setting, another setting, or suspension for not more than 10 school days (to the extent such alternatives would be applied to students without disabilities). School personnel may consider any unique circumstances on a case-by-case basis when determining whether to order a change in placement for a student with a disability.

Within 10 school days of any decision to change the placement the ARD committee must determine whether the behavior of the student is a manifestation of the student's disability. When making a manifestation determination, the ARD committee shall review all relevant information in the student's file, including the student's IEP, any teacher observations, and any relevant information provided by the parents to determine: (1) if the conduct in question was caused by, or had a direct and substantial relationship to, the student's disability; or (2) if the conduct in question was the direct result of failure to implement the IEP. If either is applicable the conduct shall be determined to be a manifestation of the student's disability. If the behavior is determined to be a manifestation of the student's disability, the ARD shall conduct a functional behavioral assessment and implement a behavioral intervention plan if such assessment for conduct was not completed prior to the behavior. If a behavioral intervention plan has been developed, the ARD shall review the plan, modify it, as necessary, to address the behavior, and return the student to the placement from which removed unless the parent and school agree to a change of placement as part of the modification of the behavioral intervention plan.

If the behavior is determined not to be a manifestation of the student's disability, disciplinary procedures applicable to students without disabilities may be applied to the student in the same manner and for the same duration in which the procedures would be applied to students without disabilities. A student with a disability who is removed from the student's current placement shall continue to receive educational services, so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the student's IEP, and receive, as appropriate, a functional behavioral assessment, behavioral intervention services and modifications, that are designed to address the behavior violation so that it does not recur.

If (1) the student carries a weapon to school or to a school function; or (2) the student knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school or a school function, or (3) the student has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function, the student with disabilities may be removed to an appropriate interim alternative placement for not more than 45 school days without regard to whether the behavior is determined to be a manifestation of the child's disability. If behavior is found not to be a manifestation of the student's disability student may be removed for the same amount of time that a student without a disability would be subject to discipline.

The school shall notify the parents of that decision and of all procedural safeguards no later than the date on which the decision to take disciplinary action is made.

Nothing in the code shall be construed to prohibit the school district from reporting a crime committed by a student with a disability to appropriate authorities. The school district must ensure that copies of the special education and disciplinary records of the student are transmitted for consideration by the authorities to whom it reports the crime.

The parent of a student with a disability who disagrees with any decision regarding disciplinary placement, or the manifestation determination, may request a hearing. During the appeal the child shall remain in the interim alternative educational setting pending the decision or until the expiration of the time period whichever occurs first, unless the parent and the district agree otherwise. The state or district shall arrange for an expedited hearing, which shall occur within 20 school days of the date the hearing is requested and shall result in a determination within 10 school days after the hearing.

Protections for students not yet eligible
A student who has not been determined to be eligible for special education and related services and who has engaged in behavior that violates a code of student conduct, may assert any of the protections mentioned previously, if the district has knowledge that the student was a student with a disability before the behavior that precipitated the disciplinary action occurred. Basis of knowledge includes (1) the parent of the student has expressed concern in writing to administrative personnel that the student is in need of special education and related services; (2) the parent has requested an evaluation of the student; or (3) the teacher of the student, or other district personnel has expressed specific concerns about a pattern of behavior demonstrated by the student, directly to the director of special education or to other supervisory personnel of the district. Note: If the parent of the student has not allowed an evaluation of the student or has refused services or the student has been evaluated and it was determined that the student was not a student with a disability, the district shall not be deemed to have knowledge that the student is a student with a disability.

If district does not have knowledge that a student is a student with a disability prior to taking disciplinary measures against the student, the student may be subjected to disciplinary measures applied to students without disabilities who engaged in comparable behaviors. If a request is made for an evaluation of a student during the time period in which the student is subjected to disciplinary measures the evaluation shall be conducted in an expedited manner. If the student is determined to be a student with a disability, taking into consideration information from the evaluation and information provided by the parents, the district shall provide special education and related services, except that pending the results of the evaluation, the student shall remain in the educational placement determined by school authorities. Please see Texas Education Code 37.0021 for information on use of confinement, restraint, seclusion, and time-out (http://tlo2.tlc.state.tx.us/statutes/ed.toc.htm).

STUDENTS WITH DISABILITIES UNDER SECTION 504 OF THE REHABILITATION ACT OF 1973

Change of Placement. As with special education, similar procedures must be followed before a Section 504 student may be ordered to an appropriate alternative education setting or change of placement. The committee, (comprised of person(s) knowledgeable about the student, the meaning of the evaluation data, and placement options), must decide whether the misbehavior is a manifestation of a student's disability, and must review the present Accommodation Plan. The Section 504 Committee should also consider whether the student's behavior warrants any new evaluation data prior to any consideration of a change of placement. If (1) the student carries a weapon to school or to a school function; or (2) the student knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school or a school function, or (3) the student has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function, the student with disabilities may be removed to an appropriate interim alternative placement for not more than 45 school days without regard to whether the behavior is determined to be a manifestation of the child's disability. If behavior is found not to be a manifestation of the student's disability student may be removed for the same amount of time that a student without a disability would be subject to discipline.