Section 504 �Discipline Procedures

• The section 504 statute (29 U.S.C. 794) contains no express requirements regarding student discipline, other than prohibiting discrimination by reason of disability, and very few explicit procedural rules.

Section 504�Discipline Procedures (cont.)

• 34 C.F.R. 104.35 requires districts to ensure that the placement decision is made by a group of people, including those knowledgeable about the child, the meaning of evaluation data, and the placement options…
• 34 C.F.R. 104.36 requires procedural safeguards for changes in placement that include “notice, an opportunity for parents or guardians of the person to examine relevant records, an impartial hearing with opportunity for participation by the person’s parents or guardians and representation by counsel, and a review of procedure.”

Section 504�Changes in Placement

• A districts ability to discipline a disabled student is significantly limited if it would constitute a “significant change” in the child’s placement.
• “It is OCR policy that, when the exclusion of a student with a disability is permanent (expulsion), or for more than 10 consecutive school days, the exclusion constitutes a significant change in placement.”

Section 504�Changes in Placement (cont.)

• A series of suspensions may create a pattern that constitutes a significant change in placement.
• A change in physical location (school) is not necessarily a change in placement if there is no change in the student’s educational program.

Section 504�Changes in Placement (cont.)

• A change in placement is:
• Determined on a case-by-case basis
• Factors include:
• Length of each suspension
• Proximity of the suspensions to one another; and
• Total amount of time excluded from school
• If a student’s placement remains unchanged, a school may utilize the same disciplinary measures as for any other student.

Section 504�Manifestation Determinations

• According to OCR, and similar to IDEA, Section 504 requires a district to conduct a manifestation determination if a disciplinary action constitutes a “significant change” in a child’s placement.
• The requirement of a manifestation determination is not expressly stated in the Section 504 statute or regulations. OCR supports its interpretation using 34 C.F.R. 104.35 which requires a reevaluation before any “significant changes in placement.”

Section 504�Manifestation Determinations (cont.)

• Unlike IDEA, the Section 504 regulations do not explicitly provide procedures or requirements for conducting a manifestation determination hearing. Compliance with the IDEA regulations regarding manifestation determinations will satisfy Section 504.

Section 504�Manifestation Determinations (cont.)

• If it is determined that the disabled child’s misconduct is a manifestation of the child’s disability:
• The child’s placement and 504 plan should be reviewed and revised as appropriate; and
• According to OCR the child may NOT be excluded from school for more that 10 days.
• If it is determined that the misconduct is not a manifestation of the child’s disability, the child may be excluded from school in the same manner as similarly situated non-disabled children are excluded i.e. no services needed.

Section 504�“Stay Put”

• No specific stay put requirement under Section 504 or its regulations
• “OCR believes that a fair due process system would encompass the school district waiting for the results of the process before making the change.”

Section 504�Drugs, weapons, and alcohol

• A child is not entitled to protection under Section 504 for discipline problems related to current illegal drug or alcohol use.
• LEA’s may take disciplinary action pertaining to the use or possession of illegal drugs or alcohol against any student who is an individual with a disability, and who is currently engaging in the use of illegal drugs or alcohol just as they would any student. In such cases, no Section 504 process rights apply.

Section 504�Drugs, weapons, and alcohol (cont.)

• OCR has interpreted this provision to mean: any student who is disciplined for current illegal drug or alcohol use loses the procedural protections of Section 504.
• Disabled students who are disciplined for incidents involving weapons are treated no differently under Section 504 than disabled students who are accused of other violations.

Discipline Pitfalls

• Imposing discipline without knowing whether a student is disabled;
• Inadvertent change in placement
• Failure to conduct a timely manifestation determination review;
• Failure to review IEP, BIP, or functional behavioral assessment when necessary;
• Ignoring behavior/not imposing discipline because a student is disabled;
• Inappropriate alternative setting;
• Not involving law enforcement when necessary