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(8.19) Are there any special rules governing the discipline of students identified as having a disability under Section 504 of the Rehabilitation Act of 1973?

(8.19) Are there any special rules governing the discipline of students identified as having a disability under Section 504 of the Rehabilitation Act of 1973?

Section 504 requires that schools evaluate a student believed to have a disability before making an initial placement of the student and before any subsequent, significant change in placement of the student. [34 C.F.R. Sec. 104.35(a).] According to OCR, the exclusion of a student for more than 10 consecutive days, the exclusion for an indefinite period, and the permanent exclusion of a student (expulsion) can constitute significant changes of placement under Section 504. A series of suspensions, each of which is 10 or fewer days in duration, but that creates a “pattern of exclusions”,  may also be a significant change in placement. [Office of Civil Rights, Letter re: Akron City School Dist., 19 IDELR 542 (Nov. 18, 1992) (cited in Parents of Student W. v. Puyallup Sch. Dist., No. 3, 31 F.3d 1489, 1495 (9th Cir. 1994).]

Before changing a Section 504 student’s placement, the district must conduct a reevaluation of the student to determine whether the misconduct in question is caused by the student’s disability and, if so, whether the student’s current educational placement is appropriate. [34 C.F.R. Sec. 104.35(d).] As a first step in the re-evaluation, the district must determine whether the misconduct is caused by the student’s disability. This determination may be made by the same group of persons who make initial placement decisions for Section 504 students. Recent psychological evaluation information related to the behavior should be made available to the group. The determination should not be made by those responsible for the district’s regular disciplinary procedures, such as administrators, who lack expertise and personal knowledge about the student. These individuals, however, may participate as members of the placement decision group.

If it is determined that the misconduct of a Section 504 student is caused by the disability, the evaluation team must continue the evaluation to determine whether the student’s current educational placement is appropriate. Even when the behavior is caused by the disability and the appropriateness of the current educational placement is reviewed; that review, presumably, could find that the placement is not appropriate and could lead to a permanent change in placement and/or services.

If it is determined that the misconduct is not caused by the student’s disability, the student may be expelled from school in the same manner as students without disabilities. In such a situation, Section 504 and the ADA would permit all educational services to a solely Section 504 student to cease. The 504 expulsion standards are different from those applied to students eligible for services under the IDEA. [Discipline of Student with Disabilities in Elementary and Secondary Schools, OCR, October 1996, available at: http://corporate.findlaw.com/law-library/discipline-of-students-with-disabilities-in-elementary-and.html.]