School discipline: The rights of kids without an IEP or 504 plan

Your child acts out in class. The school suspends or expels them or changes where they receive their education. You suspect the reason for the misbehavior is a learning or thinking difference.

However, your child doesn’t have an Individualized Education Program (IEP) or 504 plan. Maybe they haven’t been evaluated or are in the middle of the evaluation process. What are your child’s rights?

The answer is complicated. All students have some basic rights when it comes to school discipline. For example, students and their parents must be told the reason for the punishment. And they must have a chance to tell their side of the story.

Under the federal Individuals with Disabilities Education Act (IDEA), students who have disabilities and have an IEP or a 504 plan have additional legal rights and protections.

In some cases, students without IEPs or 504 plans may also have these protections. IDEA says a student will be protected if the school had a “basis of knowledge” about the student’s disability before the problem behavior occurred.

When is there a basis of knowledge?

A school has a basis of knowledge that a child has a disability in three cases:

• If a parent expressed concern in writing to a school administrator or the child’s teacher that they need special education services.

• If a parent requested an evaluation.

• If the child’s teacher or other school employees expressed specific concerns to school administrators about the pattern of behavior and the possibility that the child needs special education and related services.

In other words, it depends on whether the school had a reason to know of your child’s learning or thinking difference. If your child violates a school rule after you or someone else requests an evaluation or while they're in the middle of an evaluation, they will be protected by IDEA. But if you expressed concern only verbally, your child doesn’t have discipline rights under IDEA.

If my child is getting academic or behavioral help, does that mean the school has knowledge?

No. Schools often give extra help to students who don’t have disabilities that are covered by IDEA.

What if my child was already evaluated and found not eligible for special education services?

In this case, your child isn’t protected by IDEA. If the school didn’t have any knowledge, then your child has the same discipline rights as students without disabilities.

If my child is not protected yet, can I speed up the evaluation process?

Yes. If a child is disciplined and afterward a parent asks for an evaluation, the school must decide if an evaluation is needed and conduct it as quickly as possible. This is called an expedited evaluation.

Your child’s school discipline rights may depend on the school’s knowledge. You may want to talk to a special education advocate if your child is punished. You may also want to read up on the disciplinary rights of children with disabilities under IDEA.