023-12 Discipline – Summer School
Do the disciplinary protections under the Individuals with Disabilities Act (IDEA) apply to students with disabilities who attend summer school?
IDEA disciplinary protections are only required for students with disabilities who are attending the school division’s summer school program if such services are included in the student’s IEP. Otherwise, the school division is not required to implement the student’s IEP in the summer school program, or conduct a manifestation determination before dismissing the student from the summer program for inappropriate behavior and following its disciplinary policies and procedures for non-disabled students. (see Savannah, MO, Sch. Dis, 50 IDELR 262, Office for Civil Rights (OCR), 20071).
Generally, the decision of whether a student’s IEP must continue during the summer months is made in the context of Extended School Year (ESY) services. (see Virginia Department of Education’s Technical Assistance Resource document regarding Extended School Year Services.) An IEP may also be extended into the summer months, either as ESY or not, if the IEP team determines to provide the student compensatory services to address a complaint or due process finding, or to offset interrupted services. If the IEP team determines the child ineligible for ESY services but includes one or more of the school division’s summer school programs for whatever reason in the student’s IEP, then the IDEA disciplinary protections apply to the student. If the IEP team determines the student is not eligible for ESY services and does not include summer services in the IEP but the parent decides to enroll the child in a summer school program, no IDEA disciplinary protections apply.
Practice Tip: As a cautionary note, school administrators should be mindful that even though a student with a disability may not require summer school in order to receive FAPE, that student has the same right to attend summer school as a non-disabled student. As a result, accommodations may be needed to allow access to the child. For instance, a child with an orthopedic impairment may still need additional time to move from class to class within the building. The obligation to make this accommodation available arises not under IDEA, but under the more general umbrella of Section 504. OCR reminds us that Section 504 places a duty on school divisions to provide the necessary services in summer school programs to ensure that the student with a disability receives equal opportunity to participate in the program to the same extent as the student’s non-disabled peers. Failure to provide that access may constitute disability discrimination.2
Just as a student with a physical disability may require accommodations to attend summer school, a student whose disability involves behavioral challenges may need accommodations to be able to participate in the program. From the perspective of discipline and students with disabilities in summer school, this may require a special education staff member who is most familiar with the student’s behavioral issues to confer with the summer school teacher(s) about the student’s needs and to document their review of any accommodations or modifications that might permit the student to meet the school division’s behavioral standards and remain in summer school. (see Savannah). Such situations need to be reviewed on a case-by-case basis and as necessary, with the division’s school board attorney.
KEY: When a student with a disability is provided an accommodation for the above reasons noted in this Practice Tip and s/he nonetheless does not comply, the student may be removed on the same basis as a student without a disability. This is because in this instance, the student’s right to accommodations is for access only (under the 504 standard) and not for FAPE purposes (under the IDEA standard: providing the student with services for the student to benefit educationally). Therefore, the disciplinary protections under IDEA do not apply and a manifestation determination review need not be conducted. (see Savannah).
- When students with disabilities are enrolled in summer school programs, administrators should note if the student is attending because of an IEP team decision or enrolled by the parent.
- If the IEP includes summer school services, whether for ESY or other purpose, the LEA should have a plan to ensure that staff are aware and clarify that:
- Any discipline actions must follow the special education regulations.
- All IEP accommodations and modifications are required, as documented in the IEP.
- Requirements for progress are to be reported, as documented in the IEP.
- Documentation of delivery of services must be maintained.
1 A 2000 New York Federal District Court issued a decision in 2000 that takes the opposite position from OCR. Virginia’s Office of the Attorney General has advised VDOE that the New York case is distinguishable from the OCR case in that New York schools maintained that summer school was an integral part of the New York Board Promotion Policy that required summer school for all students where there was a question of promotion. Virginia does not have such a policy.
2 OCR has focused on this issue in a number of cases, including Savannah referenced above. See also Fayette County (KY) Sch. Dis., 353 IDELR 279, OCR, 1989; Clayton (MO) Sch. Dis., 16 IDELR 786, OCR 1990; West Lafayette (IN) Community Sch. Corp., 352 IDELR 498, OCR 1987.