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The disciplinary regulations are incredibly complicated. I mean incredibly. And they don't make a whole lot of sense. But some things are clear.

If a child does not have a disability then an FBA and BIP are not required.

If a child DOES have a disability, then the regulations require the school to convene the IEP team to conduct an FBA and a BIP, if one does not exist, after ten days cumulative suspension, or to revise the BIP if one does exist. The school is supposed to do that within ten days after suspending the kid for more than ten days, and the team is supposed to develop an "assessment plan" at that meeting. When the FBA and BIP are supposed to be in place, I am not altogether clear, but I assume as soon as possible.

A school administrator is also supposed to consult with the child's special education to determine if additional services are needed in order to insure that the child continue to progress in meeting his IEP objectives and progress in the general curriculum. (I'm paraphrasing, always dangerous, because there's a danger my language might be misread to mean something not in the regulations. That's why I always advise people to READ THE REGULATION YOURSELF. Don't take anybody else's word on it because, even if that person is right, you might not be correctly understanding him. Did I confuse you? Good, because I'm always confused about this stuff.)

There are at least two places where the rights of kids suspected of having a disabilty are addressed by OSERS/OSEP. One is Section 300.527. In that section, it says that child may assert his rights (note the "may" and note it is the "child" not the school that is referenced) if the school had knowledge or should have had knowledge that the kid had a disability. Then it goes on at some length to explain when the school should suspect (had knowledge) that a child had a disability.

(b) Basis of knowledge. An LEA must be deemed to have knowledge that a child is a child with a disability if--

(1) The parent of the child has expressed concern in writing (or orally if the parent does not know how to write or has a disability that prevents a written statement) to personnel of the appropriate educational agency that the child is in need of special education and related services;

(2) The behavior or performance of the child demonstrates the need for these services, in accordance with Sec. 300.7;

(3) The parent of the child has requested an evaluation of the child pursuant to Secs. 300.530-300.536; or

(4) The teacher of the child, or other personnel of the local educational agency, has expressed concern about the behavior or performance of the child to the director of special education of the agency or to other personnel in accordance with the agency's established child find or special education referral system

http://www.ideapractices.org/searchregs/300subpartE/Esec300.527.htm

Court action in this area has been limited, I think, because I've found nothing at the circuit court level or above. It does seem clear that while the threshold is fairly low, it is not non existent. If, for example, Johnny, a kindergartener had been referred to the office 31 times for misbehavior, a court might conclude the school should have had a suspicion. If on the other hand a parent of a tenth grade child had told a third grade teacher that she thought her child might have a disability, the court almost certainly would not entertain that as conclusive evidence that the behavior of the child demonstrated a need for special educational services under Section 300.7.

Sammy is 11 years old. His brother is in a gang. He has always gotten good grades, got along with the other kids, is liked by his teachers, but he wants to join his brother's gang. He wears the gang colors to school and gets suspended. If that's the ONLY concern, the child might be maladjusted, but it is unlikely (different judges in different courts might disagree) that anyone would ever classify him as disabled. (Wearing gang colors is not a protected free speech activity; not even the ACLU would defend it.)

Springer is a teenager. Again, same profile. He gets in with fast friends, he starts experimenting with drugs, he gets suspended from school, and he even gets depressed as a result. No reason to suspect him of having a disability either. No rights under 300.519 ff. No right to private school tuition reimbursement. Bad conduct does not establish eligibility. Not even the depression establishes eligibilty, because there's no nexus between it and the child's school problems. The school problems came first as a result of bad conduct or, if you prefer, bad choices. (Springer v. Fairfax, 4th Circuit, 1998)

I had not gotten into this discussion, partly because I'd addressed it before, but mostly because it is such a complex area--change a few facts (a history of bad grades, a disciplinary record as long as your arm, a different judge, Mom had written a letter to the teacher four weeks earlier saying she thought her kid was emotionally disturbed and wanted him tested) and the outcome could be different.

But I think you're missing the forest for the trees. While we have a Child Find obligation (and could be vulnerable if we totally disregard a child's behaviors, sweeping them under the rug because we don't want him to have any protection, to a subsequent law suit for private school tuition reimbursement), the main burden under the law for asserting the child's rights falls to the parent. If a parent is concerned, s/he's going to be mostly concerned about getting the child services (i.e., getting him back in school or, failing that, getting him instruction at home or in an alternative setting). The school's main concern should be in getting the child referred and tested as soon as possible to determine if he or she is or is not eligible. The disciplinary regulations are incredible complicated even for a disabled child. Trying to apply those rights to a non identified child to me seems like a nightmare. (How do you determine, for example, if a behavior is related to or a manifestation of the child's disability, if you're not sure he's got a disability?) Section 300.527 doesn't say that the kid's just got a right to FBA and BIP--it says the child may assert all of the rights under that section--including, one would assume, the right to stay put. You just don't want to go into a hearing without any assessments backing you up.

Oh, I said that there was another place where OSERS/OSEP addressed the issue, and that's in its Fact Sheets. The language there taken out of context could be misinterpreted to mean that all students should be getting an FBA/BIP, "The Individuals with Disabilities Education Act (IDEA) requires that, at a minimum, the FBA be conducted when disciplinary sanctions result in extended periods (i.e. either before or not later than 10 business days after either the first removal beyond 10 cumulative school days in a school year or commencing a removal that constitutes a change in placement) in which a student is removed from school" But they just left out the word "disabled" before "a student." Section 300.527, which has the force of law, is quite explicit in limiting the impact to disabled children.

If you do not believe that a child has a disability, then do nothing.

If you do suspect that a child has a disability, then refer him to your Child Find services or school psychologist. At least twelve states, I know, have some sort of pre-intervention teams. In those states, it would be appropriate to develop some sort of behavioral plan as a prereferral intervention. You need not call it an FBA/BIP. The most important Fact Sheet that you should be looking at, however, is not the one on FBA's and BIPs but the one on PBIS. Whether one is going for a 45 day extension in a due process hearing or a Honig injunction in court, IDEA 97 requires the hearing officer (and courts established the precedent) to look at what the school has done to help a disabled child. Positive behavioral instructional supports are referenced more than twenty times in the regulations. All too often I see behavioral plans that basically mimic the system's Student Code of Conduct--"upon throwing a spitwad the third time, Johnny will be administered thirty lashes in accordance with the school's disciplinary policy." Courts will consider the school system's usual litany of complaints ("He's as mean as a snake, your honor, and here's a list of all the awful things the toddler did") but then they're going to ask, "What did you do to help this child?" If your answer is, "Say what?" you're probably not going to prevail. (Oberti v. Board of Education, 3rd Circuit, 1993). http://law.uark.edu/arklaw/libraryr/reserve/negocomp/oberti.html

There's not a lot of good caselaw here, but I've appended a summary following.

Guy

Rodiriceus L. v. Waukegan School District , No. 60, (7th Circuit, 1996.) In this pre-IDEA 97 case, the court said that a "child previously diagnosed as disabled is not entitled to preliminary injunction under stay-put provision to prevent expulsion where school officials had neither knowledge or reasonable suspicion to based rational decision that child was in fact disabled and not one single individual, teacher, guardian, parent, or school official proposed or suggested that child needed special education." Although the decision favored the school, the language of this 7th Circuit case also laid the foundation for the wording in IDEA '97 as to when a district would be deemed knowledgeable that a child had a disability.

Hacienda La Puente Unified School Dist. of Los Angeles v. Honig, 9th Circuit, 1992; Ashland School Dist. SEA OR 1998 Ruling on Pre Authorization Law. Even before IDEA '97, this decision took into account whether facts such as a parent's written concerns or requests for evaluation, a child's poor school performance, and statements made among staff persons were indicative of reasonable grounds to suspect disability. IDEA '97 Final Regulations (300.517(b))limited the application of the law only to those situations when teachers make their remarks to other personnel who are responsible for child find or special education referrals in the agency.

Corpus Christi Ind. Sch. Dist., IDELR 41 SEA TX 1999. As this Texas hearing officer noted, "the threshold for finding that a school should have suspected a disability is a relatively low one." In that case, a kindergarten child had been referred 31 times to the principal's office, the system had not referred him, and the officer found for the parents.

Sonoma Valley Unified Sch. Dist. 31 IDELR 153 SEA CA 1999. The knowledge that a child was doing poorly academically may not in and of itself necessarily constitute basis of knowledge of disability. (Finding for the school.)

Hoffman v. East Troy Community Sch. Dist., 29 IDELR 1074 (E.D. Wisconsin 1999). In a Wisconsin district court ruling with similar features to the Sonoma Valley case above, parents were denied tuition reimbursement--but only after hearing officer had awarded the parents nearly $100,000! The parents had contended that the school "should" have known there child had a disability because, among other things, he fell asleep in class and was performing poorly (but had passed all but one of his courses at year's end.) The findings of the court were: 1. Parent appealed an administrative decision and claimed that the school district had violated IDEA by failing to identify his son as having a serious emotional disturbance that required special education and related services. Parent sought reimbursement for placement in a private residential facility. Court granted the district's motion for summary judgment. 2. Held: The preponderance of the evidence shows that the district had no reasonable cause to believe that the student had exceptional educational needs. His most serious problems were sleeping in class and declining grades. The district's commitment to pre-referral intervention was appropriate. 3. Held: Student's parents were not adequately informed about referral and evaluation procedures, but this procedural violation did not result in a denial of educational benefit to the student, nor was it harmful or serious enough to warrant reimbursement, especially in light of the equitable consideration that the parent withheld information about the student's problems.

The most important point to notice in the above ruling is that the federal judge did not discount the argument that a child might be entitled to services if the district should have known he was disabled and did nothing about it; only after examining the relevant facts did he conclude that the prereferral interventions were appropriate. Neither did the judge dismiss the argument that the parents should be reimbursed because they had not been informed of their rights. Instead, he carefully weighed the school's failure to inform them against the parents' failure to inform the school of the seriousness of their child's problems. If the facts in that regard had been different, the same parent arguments might have prevailed.

IDEA '97 imposes a heavier burden on parents seeking tuition reimbursement to give the schools prior notice before seeking tuition reimbursement, but none of those burdens would be applicable if the parents had not been given their rights in writing. Thus the failure to provide parents with their rights would significantly narrow the grounds upon which schools could argue their case under IDEA '97, even if it did not strengthen the parent case.

While the above citations offer some guidance as to how the IDEA '97 Regulations are being interpreted, none of the cases would be considered determinative in my Circuit (the 4th.) Different courts in different circuits may interpret the same facts differently, but the caselaw cited above could nevertheless still be persuasive.