A Brief Overview
- Discussion about school-based discipline was pretty quiet during the pandemic. The topic is resurfacing as schools begin to reopen for in-person instruction. Read on for information about student rights in Washington and what families need to know when behavior impedes learning and disability may be a factor.
- Schools are required to provide education and support before resorting to discipline. This article includes resources and information to help families ensure that students receive best-practice services and that disciplinary actions are non-discriminatory.
- If the school calls to send a child home due to behavior, parents can ask whether the student is being suspended. If the school is not taking formal disciplinary action, parents are not required to take a child home. If the action is a suspension, specific rules apply. Read on for more detail. PAVE also provides a video with information about what to do if the school wants to send a child home due to behavior.
- Families can seek individualized assistance by clicking Get Help from PAVE’s website, wapave.org.
- Read on for information about Procedural Safeguards, which are downloadable through the Office of Superintendent of Public Instruction (OSPI), Washington’s lead educational agency.
Behavior is a form of communication, and children often try to express their needs and wants more through behavior than words. When a young person has a disability or has experienced trauma or other distress, adults and authorities may need to put in extra effort to understand. Missed cues and unmet needs can result in unexpected and sometimes explosive behaviors, which may lead schools to suspend or expel students. Best practice is to meet behavioral health needs and support students before disciplinary action is necessary.
Unfortunately, not all students are adequately supported. Before the COVID-19 pandemic, state data indicated that students with disabilities were disciplined at least 2.5 times more often than non-disabled peers (See WA State Report Card). For students with disabilities who are Black, Indigenous, or People of Color (BIPOC), the numbers are consistently higher.
Although no one can predict what will happen as schools reopen for in-person services, research clearly indicates that children’s behavioral health has worsened during the pandemic. Governor Jay Inslee on March 14, 2021, issued an emergency proclamation declaring children’s mental health to be in crisis.
The governor’s order requires schools to provide in-person learning options at least part of the week and directs the Health Care Authority and Department of Health to “immediately begin work on recommendations on how to support the behavioral health needs of our children and youth over the next 6 to 12 months and to address and triage the full spectrum of rising pediatric behavioral health needs.”
As schools reopen, the topic of how to support expected behavior and avoid disciplinary removal from the classroom is resurfacing. Read on for foundational information about student and family rights in Washington.
What is exclusionary discipline?
Any school disciplinary action that takes a student away from their regularly scheduled placement at school is called exclusionary discipline. Out-of-school suspensions, expulsions, and in-school suspensions count. Another element is isolation/restraint, which is an emergency response to imminent danger and not disciplinary. See below for more detail.
Families can empower themselves to advocate for their students by learning the federal framework for school-based services. Students who receive accommodations and supports through a Section 504 Plan have anti-discrimination protections from the Rehabilitation Act of 1973. Students with an Individualized Education Program (IEP) have Section 504 protections and specific rights and protections from the Individuals with Disabilities Education Act (IDEA).
Exclusionary discipline may violate FAPE
A student with an identified disability may be suspended for a behavioral violation that is outlined in district policy. State guidance is for schools to suspend students only if there are significant safety concerns. Schools are limited in their ability to exclude students from school because of behaviors that “manifest” (arise or express) from disability.
Students with identified disabilities supported through either an IEP or a 504 Plan are afforded access to a Free Appropriate Public Education (FAPE). Disciplinary actions that deny access to FAPE may be discriminatory. In other words, if a student with disabilities has unmet needs and is consistently sent home instead of helped, the school may be held accountable.
Read on for information about Procedural Safeguards, which are downloadable through the Office of Superintendent of Public Instruction (OSPI), Washington’s lead educational agency.
Unexpected behavior may indicate a disability and need for services
School districts have a duty to evaluate students to determine eligibility for special education if they have learning challenges or exhibit behavior that may indicate a disability. Under IDEA, this responsibility is called Child Find.
The Office for Civil Rights within the U.S. Department of Education in December 2016 issued a two-page Fact Sheet that includes this statement: “A student’s behavioral challenges, such as those that lead to an emergency situation in which a school believes restraint or seclusion is a justified response could be a sign that the student actually has a disability and needs special education or related aids and services in order to receive FAPE.”
To avoid FAPE violations, schools are required to document missed educational time and meet with family to review the student’s circumstances if the time a student has been suspended or otherwise removed from their academic placement for discipline adds up to 10 days. That meeting is called a Manifestation Determination. Manifestation Determination is a distinct process for students with known or suspected disabilities and is separate from general education disciplinary hearings or procedures.
Under Section 504, schools are bound to consider disability-related factors through Manifestation Determination if the disciplinary removal is for more than 10 consecutive school days or when the child is subjected to a series of removals that constitute a pattern. OSPI provides a guidance form for Section 504 circumstances.
For a student with an IEP, removal from regularly scheduled classes for more than 10 days per school year constitutes a “change of placement” and a Manifestation Determination meeting is held to determine whether the disciplinary removals resulted from the school’s failure to implement the IEP. OSPI provides a guidance form for IEP circumstances.
During a Manifestation Determination meeting, a student’s circumstances and services are reviewed. An IEP can be amended to provide additional support. For students not yet identified for special education services, this meeting can initiate or expedite an evaluation if the school district knew or should have known that the student needed special education services.
Family members are included in this process. According to WAC 392-172A-05146, “If the school district, the parent, and relevant members of the student’s IEP team determine the conduct was a manifestation of the student’s disability, the school district must take immediate steps to remedy those deficiencies.”
If the conduct is determined to be unrelated to disability, then school personnel may use general education discipline procedures. The school must still provide any special education services that the student has already been found to need. The IEP team decides the appropriate alternative setting and special education services to meet the student’s needs while suspended.
Note: With the exception of a firearm violation under federal law, school districts are not required to suspend or expel students for any behavioral violation. State law explicitly encourages school districts to consider alternative actions before administering suspension or expulsion. If a student’s conduct involves weapons, illegal drugs, or serious bodily injury, a student may be removed for up to 45 school days regardless of whether the student’s behavior was a manifestation of disability. However, a manifestation determination meeting still is required within the first 10 days of removal from school and educational services are provided.
Schools are required to support behavior and work with families
Schools are required to provide education and support before resorting to discipline for children who struggle with behavior because of their impairments. Under the IDEA, when behavior impedes the child’s learning or that of others, the IEP Team is required to consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior. When necessary (for FAPE), the team must include those supports in the IEP.
These requirements are described in a federal Dear Colleague letter from August 1, 2016: “We are issuing this guidance to clarify that the failure to consider and provide for needed behavioral supports through the IEP process is likely to result in a child not receiving a meaningful educational benefit or FAPE.”
The letter, provided by the U.S. Department of Education, recommends specific alternatives to disciplinary removal and includes detail about the rights of families when there are behavioral concerns: “In general, IEP Team meetings provide parents (who are required members of the team) critical opportunities to participate in the decision-making process, raise questions and concerns regarding their child’s behavior, and provide input on the types of behavioral supports their children may need.”
When a student is suspended, the school is required to submit a report to the family and the state. That report must include an explanation of how school staff attempted to de-escalate a situation before resorting to disciplinary removal. OSPI provides information for schools and families related to state guidance and requirements. A one-page introductory handout for parents is a place to begin.
As a local control state, individual school districts determine their specific policies related to disciplinary criteria and actions. According to OSPI, school districts are required to engage with community members and families when updating their discipline policies, which must align with state and federal regulations.
In general, Washington rules:
- Encourage schools to minimize the use of suspensions and expulsions and focus instead on evidence-based, best-practice educational strategies
- Prohibit schools from excluding students due to absences or tardiness
- Limit use of exclusionary discipline for behaviors that do not present a safety threat
- Prohibit expulsion for students in kindergarten through grade four (children in that age range cannot be excluded from their classroom placements/suspended for more than 10 cumulative days per academic term)
- Require schools to provide educational access while a student is suspended or expelled
Schools must provide educational services during a suspension
State law requires that all suspended and expelled students have an opportunity to receive educational services (RCW 28A.600.015). According to the Washington Administrative Codes (WAC 392-400-610) educational services provided in an alternative setting must enable the student to:
- Continue to participate in the general education curriculum
- Meet the educational standards established within the district
- Complete subject, grade-level, and graduation requirements
The American Civil Liberties Union of Washington provides a free, downloadable Parents’ Guide to Public School Discipline in Washington. Part III includes information about laws and procedures that are specific to students in special education. The ACLU guidebook encourages parents to gather as much information as possible when a student is disciplined:
“It is important to fully understand the type of proposed discipline, the underlying behavior, how the behavior relates to the student’s disability, and what additional supports may be available in order to fully advocate for your student.”
Schools can assess the behavior (FBA) to make a plan (BIP)
Regardless of whether the student has qualified for services, best practice is for the school to conduct a Functional Behavioral Assessment (FBA) following a significant disciplinary action. An FBA can be done for students with or without IEPs or Section 504 Plans.
The FBA is used to develop a Behavior Intervention Plan (BIP), which helps a child learn expected behaviors and prevent escalations. The BIP identifies target behaviors that disrupt learning and calls out “antecedents,” conditions or events that occur first—before the targeted behavior. A BIP supports “replacement” behavior so a student can develop skills for expected learning behaviors.
In addition to a BIP, a student receiving special education services whose behavior impedes their learning may need Specially Designed Instruction (SDI) to support skill-development in an area of education called Social Emotional Learning (SEL). If targeted SEL instruction is needed, the student will have specific IEP goals to support the learning.
Another way that an IEP can support students with behavioral disabilities is through related services. Counseling can be written into an IEP as a related service. When included in a student’s IEP as educationally necessary for FAPE, a school district is responsible to provide and fund those services. School districts can receive reimbursement for 70 percent of the cost of behavioral health services for students who are covered by Medicaid and on an IEP.
All students access behavioral supports when schools use Multi-Tiered Systems of Support (MTSS). Families can ask school staff to describe their MTSS structure and how students receive support through Tier 1 (all students), Tier 2 (targeted groups), and Tier 3 (individualized support). An element of MTSS is Positive Behavioral Interventions and Supports (PBIS), which also supports students across levels of need.
PAVE provides an article with more information about MTSS/PBIS and how to support expected behaviors at school.
Do you need to pick up your student if the school calls?
In its guidance booklet, ACLU addresses the question, “Do you need to pick up your student every time the school calls?” A parent can ask whether the student is being suspended. “If your student has not been officially suspended,” ACLU advises, “The school cannot force you to pick up the student.
“If you choose to pick up your student when he or she has not been suspended, the school may not record the removal from class and may not trigger additional protections (such as Manifestation Determination Hearings) that apply when students with disabilities are removed from school for 10 days or more.”
The ACLU guidebook includes a list of supports parents can ask for: “The law requires behavior supports to be based on evidence, and so you can ask for additional expert evaluation to determine whether the behavior supports offered to your student are appropriate.”
PAVE provides additional information about what to do if the school calls in a video.
Guidance related to isolation and restraint
The state has specific rules related to the use of isolation and restraint, which are implemented only when a student’s behavior poses an imminent likelihood of serious bodily harm and are discontinued when the likelihood of serious harm has passed. Isolation and restraint are not used as a form of standard discipline or aversive intervention.
The Washington State Governor’s Office of the Education Ombuds (OEO) offers an online resource page that details state guidance related to isolation and restraint. Included is this statement:
“Schools in Washington State are not allowed to use restraint or isolation as a form of discipline or punishment, or as a way to try to correct a child’s behavior. Restraint and isolation are only allowed as emergency measures, to be used if necessary, to keep a student or others safe from serious harm. They can continue only as long as the emergency continues.”
School districts are required to collect and report data on the use of restraint and isolation. That data is posted on OSPI’s website as part of the School Safety Resource Library.
Emergency Response Protocol (ERP)
If emergency responses and/or severe disciplinary actions become frequent, schools might ask the parent/guardian to sign an Emergency Response Protocol (ERP) for an individual student. Families are not required to sign this.
The ERP explains what the school’s policies are related to isolation and restraint and what the training requirements are for staff authorized to conduct isolation and restraint. Parents can request a copy of the district’s general education policies on this topic. The ERP can include a statement about how parents are contacted if the school uses isolation or restraint.
Schools are required to provide a report to the parent/guardian and to the state any time formal disciplinary or emergency actions are taken. Following are statements from the Revised Code of Washington (RCW 28A.600.485):
“Any school employee, resource officer, or school security officer who uses isolation or restraint on a student during school-sponsored instruction or activities must inform the building administrator or building administrator’s designee as soon as possible, and within two business days submit a written report of the incident to the district office. The written report must include, at a minimum, the following information:
- The date and time of the incident
- The name and job title of the individual who administered the restraint or isolation
- A description of the activity that led to the restraint or isolation
- The type of restraint or isolation used on the student, including the duration
- Whether the student or staff was physically injured during the restraint or isolation incident and any medical care provided
- Any recommendations for changing the nature or amount of resources available to the student and staff members in order to avoid similar incidents”
The RCW also states that school staff “must make a reasonable effort to verbally inform the student’s parent or guardian within 24 hours of the incident and must send written notification as soon as practical but postmarked no later than five business days after the restraint or isolation occurred. If the school or school district customarily provides the parent or guardian with school-related information in a language other than English, the written report under this section must be provided to the parent or guardian in that language.”
Equity work in student discipline is ongoing
A graph that shows disparity in discipline is provided on OSPI’s website, which includes training and materials for schools to support improvements. “Like other states, Washington has experienced significant and persistent disparities in the discipline of students based upon race/ethnicity, disability status, language, sex and other factors,” OSPI’s website states. “While overall rates of exclusionary discipline (suspension and expulsion) have declined over the last decade, significant disparities persist. These trends warrant serious attention from school districts, as well as OSPI, to work toward equitable opportunities and outcomes for each and every student.”