This article was first presented by the author as part of a seminar held May 12, 2003, entitled Understanding Section 504 in New Hampshire: A Practical Contrast with IDEA & ADA. The seminar was sponsored by Professional Development Network of Eau Claire, Wisconsin, and took place at the Crowne Plaza Hotel in Nashua, New Hampshire.

I. Overview

The purpose of this material is to assist the educator in understanding how Section 504 impacts disciplinary and behavioral issues. The goal of this material is to enable educators to properly implement disciplinary and behavioral interventions which comply with the intent of Section 504.

II. The Regulatory Framework

34 CFR 104.4(b) indicates that discrimination occurs when a school district denies a student with a disability the opportunity to participate in or benefit from an aid, benefit or service which is afforded non-disabled students. Examples of discriminatory conduct in the area of behavior or discipline include the following:

A. The Ten (10) Day Rule

As a general premise, a school district may not expel a student with a disability or suspend the student for more than ten (10) cumulative days during the school year for conduct related to the student's disability. This general premise exists under both the IDEA and Section 504.

B. Discipline of IDEA Students

IDEA students are protected under both the IDEA and Section 504. The educator should remember that compliance with the IDEA disciplinary regulations is sufficient to comply with Section 504. For a detailed discussion on the discipline of students under the IDEA see "The Discipline of Student Discipline," October 11, 2001.

C. The Discipline of Section 504 Students

Under Section 504 a suspension or disciplinary removal of a student with a disability for more than ten (10) may not be imposed without a determination that the student's misconduct is not a manifestation of his/her disability. See OCR Response To Williams, 21 IDELR 73 (OCR 1994). If the student's misconduct is related to the disability, the student may not be suspended for more than ten (10) days. If the misconduct is not related to the disability, the school district may impose normal disciplinary measures, subject to the parents' right to request an impartial hearing.

1. The 504 Team Process and The "Manifestation Determination.

The "504 manifestation determination" is made by convening a meeting of the 504 team to determine if the conduct was related to the disability. If the team decides that the conduct was related to the disability it cannot expel the child and will need to consider alternative service and placement options. If the team determines that the conduct was unrelated to the disability, the district may proceed with long term suspension/expulsion of the child. Before this takes place the parent must be informed of their rights, including their right to request a hearing as to whether the manifestation determination was correct. This hearing process is not an IDEA due process hearing, but occurs under the Section 504 due process hearing requirements.

2. Cumulative Suspensions.

OCR has opined that "The permanent exclusion of a child with a handicap or exclusion for an indefinite period, or for more than ten (10) consecutive school days constitutes a 'significant change in placement' under Section 504." See OCR Memorandum re: Discipline of Students with Disabilities, (OCR April 18, 1991).

The "cumulative suspension rule," found under the IDEA applies with equal strength to the Section 504 student. A series of suspensions that are each of ten (10) days or fewer in duration that create a pattern of exclusions may be deemed under Section 504 to constitute a "significant change in placement." The determination of whether a series of suspensions creates a pattern is made on a case-by-case basis. OCR has taken the position that, "In no case, however, may serial exclusions be used to avoid the requirements of re-evaluation before suspensions of more than ten (10) days."

OCR has identified the following factors to be considered in determining whether a series of suspensions has resulted in a significant change in placement:

OCR has opined that a series of suspensions that, in the aggregate are for ten (10) days or less during the school year, do not constitute a significant change in placement. Id.

3. The Re-Evaluation Process: The process for determining a manifestation.

The manifestation determination is achieved through the re-evaluation process. According to OCR, "before implementing a suspension or expulsion that constitutes a significant change in a handicapped student's placement, a school district must conduct a re-evaluation of the student to determine if the misconduct in question is caused by the student's handicapping condition or if the student's current educational placement is appropriate.

a. Step One:

The first step in re-evaluation is for the district to determine whether the misconduct is caused by the child's handicapping condition. According to OCR this determination may be made by the same group of individuals who made the initial placement decision under Section 504. The group must have available to it information that "competent professionals would require such as: psychological evaluation data related to behavior; and relevant information current enough to understand the child's current behavior." Id.

OCR has diminished the role of the disciplinarian in this process, indicating that, "The determination may not be made by the individuals responsible for the school's disciplinary procedures such as the school principal or school board officials, 'who may lack the necessary expertise and personal knowledge about the child to make such a determination.' These individuals, however, may participate as members of the placement decision group." Id.

b. Step Two:

If it is determined that the handicapped child's misconduct is caused by the child's handicapping condition, the evaluation team must continue the evaluation under the requirements of Section 504 for re-evaluation and placement, to determine whether the child's current educational placement is appropriate. The team should also consider what behavioral accommodation modification may be appropriate.

If it is determined that the misconduct is not caused by the child's handicap, the child "may be excluded from school in the same manner as similarly situated non-handicapped children are excluded." Note: the fact that a student may in theory be deprived of educational services does not mean that this is the best practice. In fact, school districts may wish to afford some level of service even in the event of expulsion.

c. Step Three:

A significant change in placement triggers the parents' or guardians' entitlement to the procedural protections required under Section 504. This includes the opportunity for substantive due process which at a minimum should include the following:

Parents should be informed of their rights to this process and should be afforded a hearing under this process in the event they disagree with the determination regarding the relationship of the behavior to the handicap or with regard to the subsequent placement proposal made by the team whether behavior is determined to be caused by the handicap.

F. Drugs and Alcohol - The "current user" distinction.

According to OCR, drug and alcohol addiction may be handicapping conditions covered by Section 504 so long as a person is not a current user of alcohol or illegal drugs.

The 1990 enactment of the ADA amended the Rehabilitation Act of 1973 with regard to the disciplining of individuals who use drugs or alcohol. Under the ADA, an individual who is currently engaged in the illegal use of drugs is not a "handicapped individual" under Section 504. However, a person who is addicted to drugs who is no longer engaged in the illegal use of drugs may be handicapped and entitled to all of the rights under Section 504. Similarly, a person erroneously regarded as engaged in the illegal use of drugs may also be regarded as handicapped under Section 504.

OCR has observed that, "because alcohol and illegal drug users are not protected by Section 504, school districts may take disciplinary action regarding the use or possession of illegal drugs or alcohol against any student with handicaps who currently is engaged in the illegal use of drugs or in the use of alcohol to the same extent that disciplinary action is taken against non-handicapped persons for the same behavior. Furthermore, the local due process protections do not apply to disciplinary actions regarding the use or possession of illegal drugs or alcohol by students with handicaps who are currently engaged in the illegal use of drugs or in the use of alcohol.

A child who has a handicapping condition other than alcoholism or drug addiction and who is not engaged in the illegal use of drugs or the use of alcohol, receives the protection of Section 504, even when in possession of illegal drugs or alcohol. OCR has observed, "For example, if a mentally retarded child who does not use drugs or alcohol is found in possession of drugs or alcohol, the school district would be required to determine whether this misbehavior resulted from the child's handicapping condition." Id.

G. Dealing with a Dangerous Student.

OCR has observed that, "Where a child presents an immediate threat to the safety of others, officials may promptly adjust the placement or suspend the child for up to ten (10) school days in accordance with rules that are applied even handedly to all children." However, Section 504 does not contain a "dangerousness" exception. Under the IDEA a district has the option to engage in temporary removal (with various safeguards) of a disabled student to an interim alternative placement for either bringing a weapon to school (or a school function) or for knowingly possessing or using drugs or soliciting the sale of a controlled substance while at a school (or school function). See 20 USC Section 615(k).

H. Alternative Discipline.

OCR has observed that "occasional detentions and similar forms of discipline do not require re-evaluation or determination of the cause of the misconduct under Section 504. Generally detentions, for example would not constitute a significant change in placement, particularly if they occur before or after instructional hours. If, however, a pattern of disciplinary actions for behaviors caused by or symptomatic of the child's disability develops, there might be sufficient cause to believe that a Section 504 violation is occurring." See OCR Response to Williams, 21 IDELR 73 (OCR 1994).

I. Application of the Gun Free Schools Act and the Jeffords Amendment.

OCR has indicated that both the Gun Free Schools Act and the Jeffords Amendment apply to Section 504 students.

J. Cessation of Educational Services.

The Department of Education has interpreted the non-discrimination provisions of Section 504 to permit school districts to cease educational services during periods of disciplinary exclusion from school where that exclusion is for misconduct that was not a manifestation of the student's disability, and non-disabled students in similar circumstances do not contain or receive educational services.

K. Comparison to the IDEA.