Q: A special education student at our school made a terroristic threat against the campus today. To what extent may we discipline the child, and is it permissible to report the child to the police?
A: The district may impose disciplinary measures against the child and report him to the appropriate authorities, so long as certain procedures are followed.
1. Reporting the crime and forwarding the child’s records.
Special education students have more protections than general education students when facing discipline at school. Nevertheless, the Individuals with Disabilities Education Act and its corresponding regulations explicitly provide that “[n]othing in this part prohibits an agency from reporting a crime committed by a child with a disability to appropriate authorities or prevents State law enforcement and judicial authorities from exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with a disability.” 20 U.S.C. § 1415(k)(6)(a); 34 C.F.R. § 300.535(a).
If a crime is reported, the district reporting the crime must, to the extent permitted by FERPA, “ensure that copies of the special education and disciplinary records of the child are transmitted for consideration by the appropriate authorities to whom the agency reports the crime.” 20 U.S.C. § 1415(k)(6)(b); 34 C.F.R. § 300.535(b).
2. Conducting the MDR and considering appropriate discipline.
When a disabled child violates the Student Code of Conduct at his or her current placement, such as by making a terroristic threat, the district may remove the child from their current placement for not more than 10 consecutive school days, so long as the removal is no more extensive than it would be for the child’s non-disabled peers. Multiple removals for separate incidents of misconduct in the same school year are permissible as long as those removals do not constitute a change in placement under federal law. 20 U.S.C. § 1415(k)(1)(B); 34 C.F.R. § 300.530(b).
A change in placement occurs if the removal is more than 10 consecutive school days or the child has been subjected to a series of removals in the same school year that constitute a “pattern” as defined by the federal regulation. See 34 C.F.R. § 300.536. Pursuant to Section 37.004(b) of the Texas Education Code, any disciplinary action regarding a disabled child “that would constitute a change in placement under federal law may be taken only after the student’s admission, review, and dismissal committee conducts a manifestation determination review (“MDR”) under 20 U.S.C. Section 1415(k)(4).”
Accordingly, the MDR must convene within 10 school days of the district’s decision to change the student’s placement. The MDR is made up of a committee composed of the child’s parents, as well as relevant members of the district and the child’s ARD Committee. The MDR must determine if the child’s misconduct was a manifestation of his or her disability or the direct result of the district’s failure to implement the child’s IEP. 20 U.S.C. § 1415(k)(1)(E); 34 C.F.R. § 300.530(e). The policy reason for this is to ensure that a disabled child is not disciplined for behavior that is caused by, or has a direct and substantial relationship to, the child’s disability. If the behavior is a manifestation of the child’s disability, the child’s placement cannot be changed. Other measures may be put into place, however, to ensure the safety of students and staff, including, but not limited to:
required check-in at the front office each morning;
routine searches of the child’s belongings;
increased monitoring of the child on campus and at extra-curricular events;
communication with the student's parents regarding potential access to dangerous weapons or materials; and
notification to the campus resource officer that a threat has been issued.
If, however, the MDR Committee concludes that the child’s misconduct was the result of purposeful behavior, rather than an uncontrollable impulse (in other words, not a manifestation of his disability), and the district’s proposed change in placement exceeds 10 consecutive school days, then the district may apply the same relevant disciplinary procedures to the disabled child that are applicable to his or her non-disabled peers. 20 U.S.C. § 1415(k)(1)(C); 34 C.F.R. § 300.530(c). Where, as here, the student makes a terroristic threat, the district may discipline the student consistent with the district’s Student Code of Conduct and Texas law. See Tex. Educ. Code § 37.007(b)(1) (noting that a “Terroristic Threat” is a discretionary expellable offense). For more information regarding the specific requirements applicable to MDR meetings and discipline, please contact your district’s legal counsel.