THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT: DISCIPLINE LEGISLATION IN THE 106TH CONGRESS

CRS Report for Congress
The Individuals with Disabilities Education Act:
th
Discipline Legislation in the 106 Congress
Nancy Lee Jones
Legislative Attorney
American Law Division
Summary
Although Congress described its 1997 changes to discipline provisions in the
Individuals with Disabilities Education Act (IDEA) as a “careful balance,” it was not long
before amendments to change the provisions surfaced. In 1999 the Senate passed S. 254,
106th Cong., the Violent and Repeat Juvenile Accountability and Rehabilitation Act of
1999, and the House passed H.R. 1501, 106th Cong., the Child Safety and Protection
Act, both of which contained amendments to IDEA. These amendments would have
changed section 615 of IDEA to eliminate IDEA’s different disciplinary procedures for
children with disabilities in certain situations. In the Senate the amendment applied to
children with disabilities who carry a gun or firearm while in the House the amendment
would cover a weapon. These amendments were not enacted.
Two amendments relating to children with disabilities were offered and accepted
during House Education and Workforce Committee markup of H.R. 4141, 106th Cong.,
the Elementary and Secondary Education Act Amendments. One amendment, offered by
Representative Norwood, concerned the discipline of a child with a disability who carries
or possesses a weapon. The other amendment, offered by Representatives Talent,
McIntosh and Tancredo, concerned the discipline of a child with a disability who
knowingly possesses or uses illegal drugs at school or commits an aggravated assault or
battery at school. These amendments were not enacted.
This report will be updated as appropriate. For a more detailed discussion of the
due process provisions in IDEA see CRS Report 98-42, Individuals with Disabilities
Education Act: Discipline Provisions in P.L. 105-17, by Nancy Lee Jones.
Background and Current Statutory Language Relating to Discipline
IDEA provides federal funds to the states to assist them in providing an education
for children with disabilities. As a condition for the receipt of these funds, IDEA contains
requirements on the provision of services and detailed due process procedures. In 1997
Congress amended IDEA in the most comprehensive and controversial reauthorization


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since IDEA’s original enactment in 1975. One of the most contentious issues addressed
in the 1997 legislation related to the disciplinary procedures applicable to children with
disabilities.
IDEA was originally enacted in 1975 because children with disabilities often failed
to receive an education or received an inappropriate education. This lack of education led
to numerous judicial decisions, including PARC v. State of Pennsylvania1 and Mills v.2
Board of Education of the District of Columbia which found constitutional infirmities
with the lack of education for children with disabilities when the states were providing
education for children without disabilities. As a result, the states were under considerable
pressure to provide such services and they lobbied Congress to assist them.3 Congress
responded with the grant program still contained in IDEA but also delineated specific
requirements that the states must follow in order to receive these federal funds. The
statute provided that if there was a dispute between the school and the parents of the child
with a disability, the child must “stay put” in his or her current educational placement until
the dispute is resolved. A revised stay put provision remains in IDEA.
Issues relating to children with disabilities who exhibit violent or inappropriate
behavior have been raised for years and in 1988 the question of whether there was an
implied exception to the stay put provision was presented to the Supreme Court in Honig
v. Doe.4 Although the Supreme Court did not find such an implied exception, it did find
that a ten day suspension was allowable and that schools could seek judicial relief when
the parents of a truly dangerous child refuse to permit a change in placement. In 1994,
Congress amended IDEA’s stay put provision to give schools unilateral authority to
remove a child with a disability to an interim alternative educational setting if the child was
determined to have brought a firearm to school.
In 1997 Congress made significant changes to IDEA in P.L. 105-17 and attempted
to strike “a careful balance between the LEA’s (local education agency) duty to ensure
that school environments are safe and conducive to learning for all children, including
children with disabilities, and the LEA’s continuing obligation to ensure that children with5
disabilities receive a free appropriate public education.” This current law does not
immunize a child with a disability from disciplinary procedures but these procedures may
not be identical to those for children without disabilities. In brief, if a child with a disability
commits an action that would be subject to discipline, school personnel have the following
options:
! suspending the child for up to ten days with no educational services
provided,


1 343 F. Supp. 279 (E.D.Pa. 1972).
2 348 F. Supp. 866 (D.D.C. 1972).
3 For a detailed discussion of the intent behind the enactment of P.L. 94-142 see CRS Report
95-669, The Individuals with Disabilities Education Act: Congressional Intent, by Nancy Lee
Jones.
4 484 U.S. 305 (1988).
5 S.Rept. 105-17, 105th Cong., 1st Sess. 28 (1997); H.Rept. 105-95, 105th Cong., 1st Sess. 108
(1997).

!conducting 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 expulsion may occur, except that educational
services may not cease. If the child’s behavior is a manifestation of the
child’s disability, the school may review the child’s placement and, if
appropriate, initiate a change in placement.
!placing the child in an interim alternative education setting for up to forty
five days (which can be renewed) for situations involving weapons or
drugs, and
!asking a hearing officer to order a child be placed in an interim alternative
educational setting for up to forty-five days (which can be renewed) if it
is demonstrated that the child is substantially likely to injure himself or
others in his current placement.
School officials may also seek a Honig injunction as discussed previously if they
are unable to reach agreement with a student’s parents and they feel that the new statutory
provisions are not sufficient.6
IDEA Amendments in the Violent and Repeat Juvenile Accountability
and Rehabilitation Act of 1999
Violence in schools surfaced on the congressional agenda in the 106th Congress
with S. 254, the Violent and Repeat Juvenile Accountability and Rehabilitation Act of
1999 which passed the Senate on May 20, 1999, and H.R. 1501, the Child Safety and
Protection Act which passed the House on June 17, 1999. Both of these bills contained
amendments offered on the floor relating to discipline under IDEA. Essentially these
amendments would have changed section 615 of IDEA to eliminate IDEA’s different
disciplinary procedures for children with disabilities in certain situations. In the Senate the
amendment applied to children with disabilities who carry or possess a gun or firearm
while in the House the amendment would have covered a weapon. The Senate passed
Amendment 355, offered by Senators Frist and Ashcroft, by a vote of 74 to 25.7 The
House passed Amendment 35, offered by Representative Norwood, by a vote of 300 to

128.8 The legislation was not enacted.


These House and Senate amendments were the subject of emotional debate. The
general theme sounded by proponents of the amendments was that recent incidents of gun
violence in the schools necessitated the changes in IDEA to allow school officials more
control over discipline. The opponents of the amendments argued that the discipline
provisions in IDEA had been carefully crafted in the 1997 reauthorization and that the


6 For a more detailed discussion of these provisions see CRS Report 98-42, Individuals with
Disabilities Education Act: Discipline Provisions in P.L. 105-17, by Nancy Lee Jones.
7 145 C.R. S5691 (May 20, 1999).
8 145 C.R. H4532 (June 17, 1999).

result of the amendments would be more criminal behavior by depriving children with
disabilities who had possessed weapons of supervision and educational services.9
House Amendments Concerning Children with Disabilities in the ESEA
Legislation
Two amendments relating to children with disabilities were offered and acceptedth
during House Education and Workforce Committee markup of H.R. 4141, 106 Cong.
One amendment, offered by Representative Norwood, concerned the discipline of a child
with a disability who carries or possesses a weapon. The other amendment, offered by
Representatives Talent, McIntosh and Tancredo, concerned the discipline of a child with
a disability who knowingly possesses or uses illegal drugs at school or commits an
aggravated assault or battery at school.
The amendment offered by Rep. Norwood required that each state that receives
funds under the Act shall require each local educational agency to have in effect a policy
which would allow school personnel to discipline a child with a disability who carries or
possesses a weapon at school in the same manner in which school personnel may discipline
a child without a disability. This would have included expulsion or suspension and a child
who is suspended or expelled would not have been entitled to continue educational
services, including the provision of a free appropriate public education (FAPE), if the state
does not require a child without a disability to receive educational services after being
expelled or suspended. However, a local educational agency may have chosen to provide
educational or mental health services for such a child. If such services are provided, there
was no requirement to provide the child with any particular level of service and the
location of the services is at the discretion of the local educational agency. School
personnel were permitted to modify the disciplinary action on a case by case basis.
A child with a disability who is disciplined under this amendment would have been
able to assert a defense that the carrying or possession of the weapon was unintentional
or innocent. This provision could have helped to address the problem of a child with
limited mental capacities who had someone place a gun in his or her backpack; however,
the exact implications of this provision are somewhat uncertain since it was not specified
to whom or when this defense would be asserted.
The term weapon was defined as having the meaning given to “dangerous weapon”
at 18 U.S.C. §930(g)(2). That definition stated: “The term ‘dangerous weapon’ means a
weapon, device, instrument, material, or substance, animate or inanimate, that is used for,
or is readily capable of, causing death or serious bodily injury, except that such term does
not include a pocket knife with a blade of less than 2 ½ inches in length.”
The amendment offered by Representatives Talent, McIntosh and Tancredo
required that each state that receives funds under the Act shall require each local
educational agency to have in effect a policy under which school personnel may discipline
a child with a disability in the same manner as a child without a disability if the child with


9 For a more detailed discussion of these proposed amendments and the surrounding debate
see CRS Report RS20309, Individuals with Disabilities Education Act: House and Senate
Amendments to Juvenile Justice Legislation, by Nancy Lee Jones.

a disability (1) knowingly possesses or uses illegal drugs or sells or solicits the sale of a
controlled substance at a school, on school premises, or to or at a school function or (2)
commits an aggravated assault or battery, as defined under State or local law, at a school,
on school premises, or to or at a school function. Like the amendment offered by
Representative Norwood, this amendment would have included expulsion or suspension
and a child who is suspended or expelled would not have been entitled to continue
educational services, including FAPE, if the state does not require a child without a
disability to receive educational services after being expelled or suspended. However, a
local educational agency may have chosen to provide educational or mental health services
for such a child. If such services are provided, there was no requirement to provide the
child with any particular level of service and the location of the services was at the
discretion of the local educational agency. School personnel were permitted to modify the
disciplinary action on a case by case basis.
As with the Norwood amendment, a child with a disability who is disciplined under
this amendment would have been able to assert a defense that the possession or use of the
illegal drugs, or the sale or solicitations of the controlled substance, was unintentional or
innocent. This provision could have helped to address the problem of someone placing
drugs in the backpack of a child with limited mental capacities; however, the exact
implications of this provision were somewhat uncertain since it was not specified to whom
or when this defense would be asserted. The amendment did not provide for any similar
defense for an allegation of aggravated assault or battery.
The definition of controlled substance was the same as the definition in section
4141 of H.R. 4141. This section states that the term controlled substance “means a drug
or other substance identified under Schedule I, II, III, or IV, or V in section 202(c) of the
Controlled Substances Act (21 U.S.C. §812(c)).” Illegal drug “means a controlled
substance, but does not include such a substance that is being legally possessed or used
under the supervision of a licensed health-care professional or that is legally possessed or
used under any other authority under the Controlled Substances Act or under any other
provision of Federal law.”
These amendments were not enacted.