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U.S. Department of Education: Promoting Educational Excellence for all Americans

General (Sec. 300.530(b))

Comment: Several commenters requested removing "consecutive" from Sec. Sec. 300.530 and 300.536 because there is no reference to consecutive school days in the Act.

Discussion: We are not removing "consecutive" from Sec. Sec. 300.530 through 300.536, as recommended by the commenters, because the Department has long interpreted the Act to permit children with disabilities who violate a code of student conduct to be removed from their current educational placement for not more than 10 consecutive school days at a time, and that additional removals of 10 consecutive school days or less in the same school year would be possible, as long as any removal does not constitute a change in placement. We do not believe the changes to section 615(k) of the Act justify any change in this position. Further, the Department's position is consistent with S. Rpt. No. 108-185, p. 43, which states that "a school may order a change in placement for a child who violates a code of student conduct to an appropriate interim educational setting, another setting, or suspension, for 10 consecutive school days or less, to the same extent that it would apply such a discipline measure to a child without a disability."

Changes: None.

Comment: One commenter recommended replacing "school days" with "calendar days" in Sec. 300.530 because using "school days" in the regulations might create a disincentive for school personnel to find solutions and develop an appropriate IEP in a timely manner.

Discussion: Section 615(k)(1)(B) of the Act clearly states that school personnel may remove a child with a disability who violates a code of student conduct from their current placement to an appropriate alternative education setting, other setting, or suspension, for not more than 10 "school days;" therefore, it would be inconsistent with section 615(k)(1)(B) of the Act to change "school days" to "calendar days" as suggested by the commenter.

Changes: None.

Comment: One commenter requested that Sec. 300.530 and all sections that pertain to discipline stipulate that children with disabilities must not be disciplined more severely than non-disabled children and disciplinary measures applied to them must not be longer in duration than those applied to non-disabled students.

Discussion: We do not believe that it is necessary to change the regulations to state that children with disabilities must not be disciplined more severely than non-disabled children because Sec. 300.530(b)(1), consistent with section 615(k)(1)(B) of the Act, is sufficiently clear that disciplinary measures are to be applied to children with disabilities to the extent they are applied to children without disabilities. Further, the manifestation determination provision in paragraph (e) of this section, and the right of a parent to request an expedited due process hearing in Sec. 300.532, regarding the disciplinary placement or manifestation determination, are sufficient to ensure that schools implement disciplinary policies that provide for a uniform and fair way of disciplining children with disabilities in line with the discipline expectations for non-disabled students. A primary intent of Congress in revising section 615(k) of the Act was to provide for a uniform and fair way of disciplining all children--both for those children with disabilities and those children without disabilities. (S. Rpt. No. 108-185, p. 43; H. Rpt. No. 108-77, pp. 116-119).

Changes: None.

Comment: A few commenters requested clarifying the Department's basis for the general authority of school personnel to remove a child with a disability for up to 10 consecutive school days, so as not to preclude subsequent short-term removals in the same school year. Many commenters expressed concern that permitting subsequent removals of up to 10 consecutive school days in the same school year could be misapplied and result in a denial of services. Several commenters stated that Sec. 300.530 is not clear as to whether students who are removed for more than 10 school days in a school year must continue to receive services.

Discussion: The Department has long interpreted the Act to permit schools to remove a child with a disability who violates a code of student conduct from his or her current placement for not more than 10 consecutive school days, and that additional removals of 10 consecutive school days or less in the same school year would be possible, as long as those removals do not constitute a change in placement. The requirements in Sec. 300.530(b) do not permit using repeated disciplinary removals of 10 school days or less as a means of avoiding the change in placement options in Sec. 300.536. We believe it is important for purposes of school safety and order to preserve the authority that school personnel have to be able to remove a child for a discipline infraction for a short period of time, even though the child already may have been removed for more than 10 school days in that school year, as long as the pattern of removals does not itself constitute a change in placement of the child.

On the other hand, discipline must not be used as a means of disconnecting a child with a disability from education. Section 300.530(d) clarifies, in general, that the child must continue to receive educational services so that the child can continue to participate in the general curriculum (although in another setting), and progress toward meeting the goals in the child's IEP.

Changes: None.

Comment: Several commenters recommended retaining the Department's long term policy that an in-school suspension would not be considered a part of the days of suspension as long as the child is afforded the opportunity to continue to appropriately progress in the general curriculum, continue to receive services specified on the child's IEP, and continue to participate with nondisabled children to the extent they would have in their current placement. Other commenters recommended including in the regulations the commentary from the March 12, 1999 Federal Register (64 FR 12619) regarding whether an in-school suspension or a bus suspension constitutes a day of removal.

Discussion: It has been the Department's long term policy that an in-school suspension would not be considered a part of the days of suspension addressed in Sec. 300.530 as long as the child is afforded the opportunity to continue to appropriately participate in the general curriculum, continue to receive the services specified on the child's IEP, and continue to participate with nondisabled children to the extent they would have in their current placement. This continues to be our policy. Portions of a school day that a child had been suspended may be considered as a removal in regard to determining whether there is a pattern of removals as defined in Sec. 300.536.

Whether a bus suspension would count as a day of suspension would depend on whether the bus transportation is a part of the child's IEP. If the bus transportation were a part of the child's IEP, a bus suspension would be treated as a suspension under Sec. 300.530 unless the public agency provides the bus service in some other way, because that transportation is necessary for the child to obtain access to the location where services will be delivered. If the bus transportation is not a part of the child's IEP, a bus suspension is not a suspension under Sec. 300.530. In those cases, the child and the child's parent have the same obligations to get the child to and from school as a nondisabled child who has been suspended from the bus. However, public agencies should consider whether the behavior on the bus is similar to behavior in a classroom that is addressed in an IEP and whether the child's behavior on the bus should be addressed in the IEP or a behavioral intervention plan for the child.

Because the determination as to whether an in-school suspension or bus suspension counts as a day of suspension under Sec. 300.530 depends on the unique circumstances of each case, we do not believe that we should include these policies in our regulations.

Changes: None.