Supporting Students with Disabilities and Avoiding the Discriminatory Use of Student Discipline under Section 504 of the Rehabilitation Act of 1973 (PDF)

Supporting Students with Disabilities

and Avoiding the Discriminatory Use of

Student Discipline under Section 504 of

the Rehabilitation Act of 1973

U.S. Department of Education

Office for Civil Rights

July 2022

400 MARYLAND AVE. S.W.

WASHINGTON, DC 20202-1100

www.ed.gov

The Department of Education’s mission is to promote student achievement and preparation for global

competitiveness by fostering educational excellence and ensuring equal access.

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Supporting Students with Disabilities and Avoiding the Discriminatory Use of Student

Discipline Under Section 504 of the Rehabilitation Act of 1973

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SUPPORTING STUDENTS WITH DISABILITIES AND AVOIDING THE DISCRIMINATORY USE OF STUDENT DISCIPLINE UNDER

SECTION 504 OF THE REHABILITATION ACT OF 1973

UNITED STATES DEPARTMENT OF EDUCATION

OFFICE FOR CIVIL RIGHTS

THE ASSISTANT SECRETARY

July 19, 2022

Dear Colleague:

I write to share information for schools, school districts, State officials, parents and guardians,

and students about how Section 504 of the Rehabilitation Act of 1973 (Section 504), a Federal

civil rights law that prohibits discrimination based on disability, applies to the use of student

discipline.

This guidance

describes schools’ responsibilities under Section 504 to ensure nondiscrimination

against students based on disability when imposing student discipline.

Specifically, the guidance

explains how compliance with Section 504’s requirement to provide a free appropriate public

education (FAPE) to students with disabilities can assist schools in effectively supporting and

responding to behavior that is based on a student’s disability and that could lead to student

discipline. By using Section 504’s procedures to identify and meet the behavioral, social,

emotional, and academic needs of students with disabilities as required for FAPE, schools can

help prevent or reduce behaviors that might otherwise result in discipline. As the guidance

explains, when schools do choose to administer discipline for students with disabilities, they must

do so in a nondiscriminatory manner.

Schools need not choose between keeping their school community—including students and

school staff—safe or complying with the law. Schools are required not to discriminate against

students with disabilities on the basis of disability, a responsibility that extends to the conduct of

everyone with whom the school has a contractual or other arrangement, such as school district

29 U.S.C. § 794; 34 C.F.R. pt. 104. The Office for Civil Rights (OCR) enforces Section 504 for all programs and

activities that receive Federal financial assistance from the U.S. Department of Education (Department), including

those of public elementary and secondary schools, local educational agencies, State educational agencies,

preschools, and private schools that receive such assistance.

The Department has determined that this Dear Colleague Letter is significant guidance under the Office of

Management and Budget’s Final Bulletin for Agency Good Guidance Practices, 72 Fed. Reg. 3432 (Jan. 25,

2007),

https://www.federalregister.gov/documents/2007/01/25/E7-1066/final-bulletin-for-agency-good-guidance-

practices. If you are interested in commenting on this guidance, please email us your comment at [email protected] or

write to us at the following address: Office for Civil Rights, U.S. Department of Education, 400 Maryland Avenue,

S.W., Washington, D.C. 20202. For further information about the Department’s guidance processes, please visit

https://www2.ed.gov/policy/gen/guid/significant-guidance.html.

This guidance is issued to provide recipients with information to assist them in meeting their obligations, and to

provide members of the public with information about their rights, under the civil rights laws and implementing

regulations that the Department enforces. The Department’s legal authority is based on those laws. Except for the

underlying statutory or regulatory requirements referenced in this Dear Colleague Letter, this significant guidance

is nonbinding and does not create or impose new legal requirements. Instead, it provides information and

examples to inform recipients about how the Department evaluates whether covered entities are complying with

their legal obligations.

SUPPORTING STUDENTS WITH DISABILITIES AND AVOIDING THE DISCRIMINATORY USE OF STUDENT DISCIPLINE UNDER

SECTION 504 OF THE REHABILITATION ACT OF 1973

police officers or school resource officers. Nothing in Section 504, however, prohibits a school

from responding to emergency circumstances or from taking appropriate, nondiscriminatory

steps to maintain safety while supporting students learning how to be accountable for the impact

of their actions on others. As the guidance explains, when a student’s behavior is based on

disability, including when the behavior significantly impairs other students’ education or

threatens the safety of the student or others, the student’s Section 504 team is responsible for

considering the impacts of the behavior on others when determining the appropriate placement

for the student. This consideration could result in a change to the educational setting for the

student with a disability or in a change to the student’s services or supports to more effectively

address the behavior and ensure safety. Furthermore, Section 504 FAPE requirements do not

interfere with a school’s ability to address extraordinary situations in which a student’s behavior,

including disability-based behavior, is an immediate threat to their own or others’ safety, such as

by contacting crisis intervention specialists or law enforcement. Complying with Section 504’s

general nondiscrimination and FAPE requirements helps to ensure an educational environment

that is nondiscriminatory, supportive, positive, inclusive, productive, and safe for all.

OCR appreciates schools’ many efforts to support and respond to students’ behavioral needs in

order to prevent the use of student discipline, and, when discipline is used, to implement

disciplinary policies, practices, and procedures fairly and consistent with all Federal civil rights

laws.

Nonetheless, OCR’s continued enforcement experience reflects that many students with

disabilities face discipline because they are not receiving the support, services, interventions,

strategies, and modifications to school or district policies that they need to manage their

disability-based behavior. Additionally, many students with disabilities are subjected to

discrimination based on their disability when being disciplined, such as when students with

disabilities are unnecessarily disciplined more severely than students without disabilities for the

same or similar behavior.

OCR is committed to ensuring equal access to education for all students and to promoting

educational excellence at the nation’s schools through the vigorous enforcement of students’

civil rights. An important part of our mission is to ensure that students are not denied equal

educational opportunity or subjected to discrimination based on their disabilities, including

through the improper use of discipline.

I look forward to working with you to achieve this shared goal.

Sincerely,

/s/

Catherine E. Lhamon

Assistant Secretary for Civil Rights

In addition to Section 504, OCR enforces other Federal laws that prohibit discrimination based on disability, race,

color, national origin, sex, and age. For OCR guidance on topics under these laws, please visit

http://www.ed.gov/ocr

SUPPORTING STUDENTS WITH DISABILITIES AND AVOIDING THE DISCRIMINATORY USE OF STUDENT DISCIPLINE UNDER

SECTION 504 OF THE REHABILITATION ACT OF 1973

iii

TABLE OF CONTENTS

I. Introduction: Setting the Foundation ............................................................................ 1

A. The Scope of Section 504’s Coverage ................................................................................. 2

B. Section 504 and the IDEA ...................................................................................................... 3

II. Providing FAPE to Students with Disability-Based Behavior .......................................... 4

A. General Overview of FAPE in the Context of Students with Behavioral Needs ............... 6

B. FAPE Requirements Applicable to Student Discipline ...................................................... 13

III. Reasonable Modifications to Disciplinary Policies for Students with Disabilities ......... 24

IV. Section 504’s General Prohibition of Disability Discrimination in Student Discipline –

Different Treatment and Discriminatory Effects .......................................................... 27

A. Unnecessary Different Treatment ..................................................................................... 27

B. Discriminatory Effects of a School’s Disciplinary Criterion, Policy, Practice, or

Procedure ............................................................................................................................. 30

V. Multiple Bases of Discrimination and Intersectional Discrimination ............................ 32

VI. Conclusion .................................................................................................................. 32

Appendix: Glossary of Key Terms and Acronyms Used in this Guidance

SUPPORTING STUDENTS WITH DISABILITIES AND AVOIDING THE DISCRIMINATORY USE OF STUDENT DISCIPLINE UNDER

SECTION 504 OF THE REHABILITATION ACT OF 1973

I. INTRODUCTION: SETTING THE FOUNDATION

This guidance focuses on schools’ obligations to meet the needs of students with disability-based

behavior as required by Section 504 and on other steps schools must take to avoid discrimination

on the basis of disability when disciplining students.

The hypothetical examples in this guidance

are intended to be illustrative of selected principles, and not an exhaustive discussion of

principles that may affect the outcome of any OCR case. The examples in this guidance do not

determine the outcome of any particular set of facts, as OCR assesses the facts of each case

individually and applies the law to those facts.

 Section I explains the scope of Section 504’s coverage and the relationship between

Section 504 and Part B of the Individuals with Disabilities Education Act (IDEA).

 Section II explains the responsibility of public elementary and secondary schools

provide a free appropriate public education (FAPE),

and how doing so may help prevent

or reduce the need for discipline of students with disabilities who have behavioral needs.

 Section III explains schools’ responsibility to provide reasonable modifications

to their

policies, practices, or procedures necessary to avoid disability discrimination.

 Section IV discusses schools’ responsibility to avoid discrimination in the context of

discipline, including discrimination based on stereotypes, generalizations, or assumptions

about an individual’s disability.

 Section V explains that students with disabilities may experience discrimination on

multiple bases or intersectional discrimination.

29 U.S.C. § 794; 34 C.F.R. pt. 104. While the focus of this guidance is on schools’ duties under Federal law, some

practices mentioned in this guidance—such as corporal punishment, seclusion, and some forms of restraint—may

be prohibited under State laws, and this guidance should not be viewed as authorizing their use in violation of law.

This guidance uses the terms school and school district as shorthand for ease of reading, but the requirements

discussed in this guidance apply to the programs and activities of all public elementary and secondary schools,

school districts, and State educational agencies that receive Federal financial assistance from the Department of

Education (Department). 34 C.F.R. §§ 104.1, 104.2, 104.4, 104.32-104.36. Preschools may not exclude qualified

persons with disabilities and must consider the needs of qualified persons with disabilities when determining the

aid, benefits, or services provided. 34 C.F.R. § 104.38. Private elementary and secondary schools that receive

Federal financial assistance are subject to the requirements of 34 C.F.R. § 104.39. Some statutes administered by

the Department require State and public school district recipients to provide what are known as “equitable

services” to students placed by their parents in private school. See, e.g., 34 C.F.R. §§ 300.132, 300.137, 300.138.

Such recipients may not assist private schools that discriminate based on disability against beneficiaries of the

recipient’s programs. 34 C.F.R. § 104.4(b)(1)(v); see 34 C.F.R. pt. 104, App. A, ¶ 1. However, the Department does

not consider the provision of equitable services to students and their families to be Federal financial assistance to

the private school that would otherwise make the private school a recipient subject to Section 504. Id.

See 34 C.F.R. § 104.33(a), (b)(1).

34 C.F.R. § 104.4. OCR notes that the Department of Justice (DOJ) interprets requirements under Section 504

consistently with those under Title II of the Americans with Disabilities Act (Title II). See 28 C.F.R. § 35.130(b)(7)

(Title II regulation requiring reasonable modifications where necessary to avoid disability discrimination).

34 C.F.R. §§ 104.4; 104.33(a), (b); 104.34(a)-(c); 104.35(a)-(c). See Guckenberger v. Bos. Univ., 974 F. Supp. 106,

134 (D. Mass. 1997) (“ . . . Section 504 specifically prohibit[s] discrimination . . . based on thoughtlessness, apathy

and stereotypes about disabled persons.”).

SUPPORTING STUDENTS WITH DISABILITIES AND AVOIDING THE DISCRIMINATORY USE OF STUDENT DISCIPLINE UNDER

SECTION 504 OF THE REHABILITATION ACT OF 1973

 The Appendix includes a Glossary of common terms and acronyms used in this guidance.

As discussed throughout the guidance, nothing in Section 504 prohibits schools from responding

to emergency circumstances or from taking appropriate, nondiscriminatory steps to maintain

school safety while supporting students learning how to be accountable for the impact of their

actions on others.

A. The Scope of Section 504’s Coverage

Section 504 applies to elementary and secondary public schools (including public charter schools

and State-operated schools), public school districts, State educational agencies (SEAs), and

private schools and juvenile justice residential facilities

that receive Federal financial assistance

from the Department, referred to in this guidance as recipients, whether they receive the Federal

financial assistance directly from the Department or indirectly through another recipient.

Section 504 prohibits recipients from discriminating against a “qualified person with a

disability”

on the basis of disability in the recipients’ Federally assisted programs or activities.

For instance, a recipient SEA must ensure that public schools and districts in the State do not

discriminate based on disability.

Thus, recipients may not discriminate against a qualified

student with a disability in their programs and activities, including in connection with policies,

procedures, and practices related to student discipline.

Additionally, a school’s inappropriate

use of mechanical, physical, or other restraints (referred to collectively in this guidance as

As noted in the Glossary, except where terms are directly from a statute or regulation that OCR enforces, or

OCR’s Civil Rights Data Collection (CRDC) definitions, the terms and acronyms in the Glossary are offered to assist

the reader only for purposes of clarity in this guidance, are not intended to apply more broadly, and are not

binding in any way. The CRDC collects data on leading civil rights indicators related to access and barriers to

educational opportunity from preschool through 12th grade.

For more information about the civil rights responsibilities of juvenile justice facilities, please refer to U.S. Dep’t

of Just. & U.S. Dep’t of Educ., Dear Colleague Letter: Civil Rights in Juvenile Justice Residential Facilities (Dec. 8,

2014), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-residential-facilities-201412.pdf

Another Federal law, Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12131-12134, and DOJ’s

implementing regulations for Title II, 28 C.F.R. pt. 35, prohibit disability discrimination by State and local

governments, regardless of whether they receive Federal funds. OCR shares with DOJ responsibility for enforcing

Title II with regard to public educational institutions. 28 C.F.R. § 35.190(b)(2); 28 C.F.R. §§ 35.172–35.174. This

guidance focuses on Section 504’s requirements; for more information about Title II, see DOJ’s ADA.gov

website.

34 C.F.R. §§ 104.2, 104.3(f), (h). Recipients include entities to which Federal financial assistance from the

Department is extended directly or through another recipient. 34 C.F.R. § 104.3(f). Other entities, such as

postsecondary education institutions and organizations that provide before- or after-school programing, that

receive Federal financial assistance from the Department are subject to Section 504, including its general

nondiscrimination requirements; this document does not focus on the Section 504 responsibilities of those other

recipients.

29 U.S.C. § 794(a); 34 C.F.R. pt. 104.

34 C.F.R. § 104.3(k)(1)-(4). OCR also enforces the following laws that apply to the programs and activities of

recipients of Federal financial assistance: Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., 34 C.F.R.

pt. 100 (Title VI); Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq., 34 C.F.R. pt. 106 (Title IX);

and the Age Discrimination Act, 42 U.S.C. § 6101 et seq., 34 C.F.R. pt. 110.

See 34 C.F.R. § 104.4(a), (b)(1)(i)-(v), (vii), (b)(4); 34 C.F.R. pt. 104, App. A, ¶ 1; see also 34 C.F.R. § 104.5; OCR,

Assurance of Compliance—Civil Rights Certificate,

https://www2.ed.gov/about/offices/list/ocr/letters/boy-scouts-

assurance-form.pdf.

34 C.F.R. §§ 104.3(l)(2), 104.4.

SUPPORTING STUDENTS WITH DISABILITIES AND AVOIDING THE DISCRIMINATORY USE OF STUDENT DISCIPLINE UNDER

SECTION 504 OF THE REHABILITATION ACT OF 1973

“restraints”) or use of seclusion in response to student behaviors could deny the student FAPE or

constitute disability discrimination, as explained in prior OCR guidance.

Recipients must ensure that their employees and all who participate in providing the recipients’

educational program or activity under a contractual, licensing, or other arrangement do so in a

nondiscriminatory manner.

Section 504 prohibits a recipient from indirectly engaging in

conduct through a contractual, licensing, or other arrangement that would be discrimination if

the recipient engaged in the conduct directly.

The responsibility not to discriminate includes a

duty for recipients to ensure their own policies, practices, and procedures do not directly cause,

or indirectly result in, disability discrimination by other entities that participate in the recipient’s

educational program or activity through a contractual, licensing, or other arrangement.

A school’s responsibility not to discriminate against students with disabilities applies to the

conduct of everyone with whom the school has a contractual or other arrangement, such as lunch

or recess monitors, cafeteria staff, bus drivers, security staff, private security companies or other

contractors, school district police officers, or school resource officers (SROs). Schools cannot

divest themselves of their nondiscrimination duty by relying on such personnel when the

personnel operate under a contract or other arrangement, such as a memorandum of

understanding.

Recipients have a responsibility not to discriminate in, among others, the

following activities related to student discipline: questioning a student with a disability and

investigating allegations of a violation of school rules; issuing tickets, citations, and fines for

violations of school rules, such as truancy; using surveillance technologies; conducting searches

of students with disabilities and their property; making referrals of students with disabilities to

law enforcement, including referrals that result in school-related arrests; and initiating or

carrying out threat or risk assessments of students with disabilities.

B. Section 504 and the IDEA

Schools have certain overlapping responsibilities under Section 504 and Part B of the IDEA, which

is a Federal law that makes special education and related services available to children who are

eligible for FAPE as defined by the IDEA.

The IDEA and its implementing regulations establish

See OCR, Dear Colleague Letter: Restraint and Seclusion of Students with Disabilities (Dec. 28, 2016),

https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201612-504-restraint-seclusion-ps.pdf

34 C.F.R. § 104.4(a), (b)(1) (prohibiting discrimination on the basis of disability, whether “directly or through

contractual, licensing, or other arrangements”), (b)(4).

See id.

To learn more about recipients’ obligations under Section 504 more generally, please refer to OCR’s Parent and

Educator Resource Guide to Section 504 in Public Elementary and Secondary Schools,

https://www2.ed.gov/about/offices/list/ocr/docs/504-resource-guide-201612.pdf

(Section 504 Resource Guide).

Part B of the IDEA, which applies to students in preschools, elementary schools, and secondary schools between

the ages of 3 and 21, requires schools to provide FAPE, as defined by that law, to IDEA-eligible students. 34 C.F.R.

§§ 300.17, 300.101, 300.102. In some instances, the IDEA uses the same terminology as Section 504, but defines

the terms differently. See, e.g., 34 C.F.R. §§ 300.15 (IDEA definition of evaluation), 300.17 (IDEA definition of FAPE).

SUPPORTING STUDENTS WITH DISABILITIES AND AVOIDING THE DISCRIMINATORY USE OF STUDENT DISCIPLINE UNDER

SECTION 504 OF THE REHABILITATION ACT OF 1973

specific requirements related to the discipline of IDEA-eligible children.

Students with

disabilities who are eligible under the IDEA also have rights under Section 504, and OCR enforces

the Section 504 rights, including the Section 504 FAPE rights, of IDEA-eligible students enrolled

in elementary or secondary school. Thus, OCR can investigate allegations that a school district

violated the Section 504 rights of students who have an individualized education program (IEP)

under the IDEA. For such students, where noted in this guidance, schools may satisfy their Section

504 FAPE obligations by complying with the IDEA’s requirements.

Some students have a disability for purposes of Section 504 FAPE, but their disability-based needs

do not also make them eligible for FAPE under the IDEA. These students are commonly referred

to as “Section 504-only” students. This guidance addresses the rights and responsibilities

concerning FAPE under Section 504 that apply to Section 504-only students,

as well as the

general nondiscrimination responsibilities under Section 504 that apply to all students with

disabilities, including IDEA-eligible students. Throughout this guidance, “FAPE” refers to FAPE

under Section 504 unless otherwise stated. The Department’s Office of Special Education and

Rehabilitative Services (OSERS) has provided, simultaneous with the issuance of this guidance

document, information and resources about student discipline for IDEA-eligible students and

schools’ responsibilities to IDEA-eligible children. For information explaining the IDEA

requirements applicable to discipline, including the complaint procedures available under the

IDEA, please consult OSERS’s Questions and Answers: Addressing the Needs of Children with

Disabilities and IDEA’s Discipline Provisions.

II. PROVIDING FAPE TO STUDENTS WITH DISABILITY-BASED BEHAVIOR

Section 504 requires a recipient that operates a public elementary or secondary education

program to provide FAPE to each qualified student with a disability, regardless of the nature or

severity of the disability.

To provide FAPE under Section 504, schools must offer regular or

special education, and related aids and services, that: (1) are designed to meet the student’s

Nothing stated in this guidance is intended to alter existing requirements applicable to IDEA-eligible students or

create conflicting requirements with the IDEA.

See 34 C.F.R. §§ 300.530-536.

Under Section 504, implementing an IEP developed in accordance with the IDEA is one way to meet Section

504’s FAPE requirement. 34 C.F.R. § 104.33(b)(1)(i), (b)(2).

Some Section 504-only students ultimately may be found to be IDEA-eligible as a result of subsequent

evaluations. For example, a school may initially evaluate a student and determine that the student needs related

services under Section 504 but does not need specialized instruction making them eligible under the IDEA. If the

school has subsequent reason to suspect that the same student does need such special education and related

services under the IDEA, the school must evaluate the student again, which could result in the student being found

eligible under the IDEA. Although the examples in this guidance describe the rights of students under Section 504,

a school under the circumstances of these examples could be required by the IDEA to evaluate or reevaluate the

student for eligibility based on their current behavioral needs. For example, due to the COVID-19 pandemic and

resulting school closures, some Section 504-only students may have new, reemerging, or worsening disability-

based behaviors, such as social anxiety-related behaviors, that interfere with their learning or that of others.

OSERS, Questions and Answers: Addressing the Needs of Children with Disabilities and IDEA’s Discipline

Provisions (July 19, 2022),

https://sites.ed.gov/idea/files/qa-addressing-the-needs-of-children-with-disabilities-

and-idea-discipline-provisions.pdf (Questions and Answers).

34 C.F.R. § 104.33(a).

SUPPORTING STUDENTS WITH DISABILITIES AND AVOIDING THE DISCRIMINATORY USE OF STUDENT DISCIPLINE UNDER

SECTION 504 OF THE REHABILITATION ACT OF 1973

individual educational needs as adequately as the needs of students without disabilities are met,

and (2) satisfy Section 504 FAPE requirements for evaluation and placement, educational setting,

and procedural safeguards.

A group of knowledgeable persons, which can include the student’s parents or guardians,

develops an individualized plan addressing the services the team has identified as necessary to

provide the student FAPE.

This group of knowledgeable persons is often called the student’s

Section 504 team. Though a written plan is not explicitly required by Section 504’s regulations,

schools often capture the plan for providing a student FAPE in writing, in an individualized

document commonly called a Section 504 plan, in order to ensure consistent understanding and

effective implementation of the student’s services. Schools must take steps to ensure that any

staff responsible for providing a student with the services necessary to receive FAPE understand

the student’s needs and have the training and skills required to implement the services.

school’s failure to provide the requisite services is likely to result in a denial of FAPE.

Section 504 plans generally describe the specific services the student needs, who will provide the

services, how they will be provided, and the setting in which the student will receive the services.

The Section 504 team uses a variety of information obtained through evaluations to identify the

services and supports that a student needs, including those needed to address any disability-

based behavior.

For students with disability-based behavior that interferes with their own or

others’ ability to learn, their Section 504 plan may identify individualized behavioral supports for

responding to the behavior and supporting the student’s behavioral needs, explain how the

school will implement the supports, and describe how the team can assess whether the supports

are effective.

Providing the needed services and supports can help the student appropriately

engage in learning, build and maintain social relationships, and avoid behaviors that otherwise

would lead the school to consider disciplinary measures.

The following subsections focus on students with disability-based behaviors, though all qualified

students with disabilities are entitled to FAPE.

The discussion explains the general FAPE

requirements in the context of students with behavioral needs and then the FAPE requirements

specific to discipline.

34 C.F.R. §§ 104.33(b)(1), 104.34 (educational setting), 104.35 (evaluation and placement), 104.36 (procedural

safeguards).

34 C.F.R. §§ 104.33(b)(1), 104.35(a)-(c).

Id.

See 34 C.F.R. § 104.33(b)(1).

34 C.F.R. § 104.35(a)-(c).

See infra pp. 10-11 (discussing behavioral supports); pp. 15-21 (discussing evaluation and placement

determinations to address circumstances where a student’s disability-based behavior significantly impairs the

education of others or poses a safety threat). For additional information, please refer to OSERS’s Supporting Child

and Student Social, Emotional, Behavioral, and Mental Health Needs,

https://www2.ed.gov/documents/students/supporting-child-student-social-emotional-behavioral-mental-

health.pdf.

To learn more about FAPE generally, please refer to 34 C.F.R. § 104.33 and OCR’s Section 504 Resource Guide,

supra note 19.

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A. General Overview of FAPE in the Context of Students with Behavioral Needs

The discussion below explains the following requirements related to FAPE under Section 504: (1)

when schools must identify and evaluate students with behavioral needs to determine if they are

a student with a disability; (2) the requirements for evaluations and placement determinations;

(3) how schools identify needed behavioral supports; (4) the schools’ responsibility to meet the

needs of students with disabilities in an educational setting with students without disabilities, to

the maximum extent appropriate for the individualized needs of the student with a disability;

and (5) the relevant procedural safeguards for FAPE.

1. Identifying and Evaluating Students with Behavioral Needs

A school must conduct an initial evaluation, at no cost to the student’s parents or guardians,

when it has reason to believe a student needs special education or related aids and services

because of a disability.

For example, a student who has not been identified as a student with a

disability and who is repeatedly referred for discipline following inappropriate verbal outbursts

beyond the expected range of behaviors for students of a similar age may need an evaluation to

determine whether the student is a student with a disability entitled to FAPE.

Section 504

requires that schools have effective procedures in place for referring a student for an

evaluation.

While not a separate requirement, to ensure effective implementation of its

evaluation procedures, a school may need to provide training to school personnel on when a

student’s behaviors, or other factors, indicate the need for an evaluation under Section 504.

A parent or guardian may, at any time, request an evaluation at public expense.

Section 504

does not limit the number of evaluations a student may reasonably request or receive.

The

student’s parent or guardian is entitled to notice of the school’s decision and may challenge a

denial of their request under Section 504’s procedural safeguards.

While parents or guardians

may request an evaluation, and schools must respond to any such requests, the responsibility to

timely identify students who may need an evaluation remains with the school.

Following a student’s initial evaluation and identification as a student with a disability, Section

504 requires reevaluations on a periodic basis, in addition to a subsequent evaluation before any

significant change in placement.

As discussed in Section II, expulsions and certain out-of-school

34 C.F.R. § 104.35(a).

See 34 C.F.R. § 104.35; see also Section 504 Resource Guide, supra note 19 at 12.

34 CF.R. § 104.35(a)-(c).

See id. To learn more about over-identification of students who do not actually have a disability, under-

identification of students who do have a disability and need services, and mis-identification of students as having a

different type of disability than the disability they have, please see OCR’s Dear Colleague Letter: Preventing Racial

Discrimination in Special Education (Dec. 12, 2016),

https://www2.ed.gov/about/offices/list/ocr/letters/colleague-

201612-racedisc-special-education.pdf (Racial Discrimination in Special Education DCL).

34 C.F.R. §§ 104.35(a), 104.33(a)-(b)(1), (c).

34 C.F.R. §§ 104.35(a), 104.33(b)(1), 104.36.

34 C.F.R. § 104.36; see infra p. 13.

34 C.F.R. §§ 104.32; 104.33(a), (b); 104.35.

34 C.F.R. §§ 104.35(a) (evaluation before any subsequent significant change in placement), 104.35(d)

(procedures for periodic reevaluation of students who have been provided special education and related services).

Reevaluation procedures consistent with the IDEA are one way of meeting Section 504’s requirements. Id.

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suspensions are examples of disciplinary removals that would be considered significant changes

in placement.

There are many potential ways in which a student’s behavior may indicate the student has a

disability and requires FAPE. For example, depending on the facts and circumstances, the school’s

duty to evaluate could be triggered by any of the following:

 Information or records shared during enrollment;

 Student behaviors that may harm the student or another person;

 The observations and data collected by school personnel;

 Information voluntarily provided by the student’s parents or guardians;

 The school’s own disciplinary or other actions indicating that school personnel

have concerns about the student’s behavior, such as frequent office referrals,

demerits, notes to parents or guardians, or use of restraints or seclusion; and

 Information that a previous response by school personnel to the student’s behavior

resulted in repeated or extended removals from educational instruction or services,

or that a previous response (e.g., a teacher’s use of restraints or seclusion)

that

traumatized a student resulted in academic or behavioral difficulties.

A student’s disability-based behavioral needs are likely to change over time during the course of

their education. A change could occur, for instance, because a student’s mental health worsens

or the environmental conditions at the student’s home or school deteriorate, resulting in an

adverse emotional or mental effect on the student.

Schools should therefore be aware that

additional evaluations may be required if, after the initial evaluation, the school has reason to

believe that the student’s needs are no longer being met within their current placement. For

example, a school may find it necessary to conduct an additional evaluation based on the student

developing new or more significant behaviors that impede learning following the loss of a close

relative. Similarly, a student may need an additional evaluation if the student’s behaviors have

improved significantly such that the placement no longer reflects the student’s current needs.

In identifying and evaluating students under Section 504, schools must also comply with their

responsibilities under other Federal civil rights laws. For example, districts must comply with Title

VI of the Civil Rights Act of 1964 (Title VI), which prohibits discrimination based on race, color, or

national origin in connection with, but not limited to, any of the following:

 over-identification of students of color as having disabilities based on age-appropriate

See infra pp. 14-21.

Schools and districts may not use this information, or the enrollment or admissions process generally, to screen

out or otherwise discriminate against students with disabilities who are eligible to attend the school. See 34 C.F.R.

§ 104.4(b)(1)(ii), (b)(1)(iv), (b)(4).

See OCR, Dear Colleague Letter: Restraint and Seclusion of Students with Disabilities 16-17, supra note 14.

To learn about the impacts of the COVID-19 pandemic on students’ well-being and mental health, please see

OCR’s report, Education in a Pandemic: The Disparate Impacts of COVID-19 on America’s Students (June 9, 2021),

https://www2.ed.gov/about/offices/list/ocr/docs/20210608-impacts-of-covid19.pdf

See 34 C.F.R. § 100.3(a), (b) (providing a non-exhaustive list of discriminatory actions prohibited under Title VI).

See also Racial Discrimination in Special Education DCL, supra note 36 at 2; U.S. Dep’t of Educ. & U.S. Dep’t of Just.,

Dear Colleague Letter: English Learner Students and Limited English Proficient Parents 8, 24-29 (Jan. 7, 2015),

https://www2.ed.gov/about/offices/list/ocr/letters/colleague-el-201501.pdf

(English Learner DCL).

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behaviors that are unrelated to disability;

 under-identification of students of color who do have disabilities;

 unlawful delays in evaluating students of color or English learners for a disability;

 failure to use valid and reliable assessments, including behavioral assessments, for

students who are English learners that appropriately measure the student’s

achievement or aptitude for the skill being measured, rather than measuring the

student's ability to speak English; and

 failure to consider the language needs of English learners who have a disability.

In addition, schools must provide information in a language the parent or guardian understands

regarding Section 504’s FAPE requirements, including information about the development of a

Section 504 plan, to parents or guardians who have limited English proficiency.

This

responsibility includes providing parents or guardians with limited English proficiency a

meaningful opportunity to receive timely communications about their child’s education in a

language the parent or guardian understands and to participate in their child’s Section 504

meetings through the use of qualified interpreters with knowledge of any specialized terms or

concepts. Similarly, Section 504 requires schools to communicate effectively with parents or

guardians who have a disability, including by providing the auxiliary aids and services parents or

guardians need in order to participate in their child’s Section 504 meetings.

2. Requirements Applicable to Evaluations and Placement Determinations

Under Section 504, evaluations must be conducted by trained personnel and interpreted by a

group of knowledgeable persons, and based on relevant information from a variety of sources.

Evaluations need to be conducted in a timely manner in order for a school to meet its FAPE

requirements, and OCR uses a reasonableness standard in determining whether an evaluation

was conducted in a timely manner.

First, when a school district has reason to believe a student needs special education or related

services because of a disability, it cannot unreasonably delay the evaluation and may not ignore

evidence indicating the student may be a student with a disability. If the district wishes to

simultaneously take other steps to support a student, like conducting an additional study or

implementing school-wide supports, it may do so, but it still must complete the evaluation in a

timely manner. OCR would likely find it unreasonable for a district to delay a student’s evaluation

34 C.F.R. §§ 100.3, 300.322(e); 20 U.S.C. §§ 1414(b)(3)(A), 1703(f). See English Learner DCL, supra note 46 at 10,

25 & n.63, 27, 30 & n.85, 37-40. Title VI requires that all students have equitable access regardless of race, color, or

national origin to a timely referral for an evaluation if a district has reason to believe the student has a disability for

which special education or related services are needed. 34 C.F.R. §§ 100.3(a), (b)(1)-(2); 104.35. See Racial

Discrimination in Special Education DCL, supra note 36 at 3. Schools must also treat students equitably in the

evaluation process, the quality of special education services and supports provided, and determinations regarding

educational setting. 34 C.F.R. § 100.3; 20 U.S.C. § 1414(d)(3)(B)(ii), 1415(b)(4); 34 C.F.R. § 300.324(a)(2)(ii). See

Racial Discrimination in Special Education DCL, supra note 36 at 3; English Learner DCL, supra note 46 at 24-29. Any

training on evaluations under Section 504 may also need to include guidance on how to avoid discrimination based

on race, color, national origin, or other protected classes in the identification and evaluation process.

See 34 C.F.R. § 104.4(a), (b).

See 34 C.F.R. § 104.35(a)-(c).

See 34 C.F.R. §§ 104.33(a), (b); 104.35. See also Section 504 Resource Guide, supra note 19 at 12.

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because it does not have sufficient personnel trained to perform the needed assessments and

fails to secure private evaluators to meet the need. In addition, the fact that a student is doing

well academically does not justify the school denying or delaying an evaluation when the district

has reason to believe the student has a disability, including if the student has disability-based

behavior resulting in removal from class or other discipline (e.g., afterschool detentions).

Second, evaluations under Section 504 must be administered by trained individuals and

interpreted by a group of persons (referred to in this guidance as the Section 504 team) who are

knowledgeable about the student, the meaning of the evaluation data, and the placement

options.

The school must ensure the Section 504 team has relevant information to draw upon

from a variety of sources.

The types of individuals who should be involved in administering and

interpreting an evaluation for a particular student will depend on the facts and circumstances,

but where a student’s behavior is a factor in an evaluation, such individuals might include, among

others: psychologists, behavior specialists, teachers, social workers, and/or counselors. An

appropriate placement will provide the student with a disability the regular or special education

and related aids and services necessary to meet the student’s individual educational needs.

Third, the Section 504 regulations identify a non-exhaustive list of sources of information for the

Section 504 team to obtain, document, and carefully consider in connection with evaluations and

placement decisions, as appropriate based on the facts and circumstances.

These sources of

information include: aptitude and achievement tests, teacher recommendations, physical

condition, social or cultural background, and adaptive behavior.

In addition, information from

parents or guardians can be especially valuable, and observations of the student by psychologists

or other professionals while the student is in class or during other activities can be useful. As a

general principle, school districts must select assessments and other evaluation materials that

are tailored to assess specific areas of educational need, administered by trained personnel

consistent with the instructions for that assessment or evaluation, and valid for the purpose for

which they are used to best ensure the results accurately reflect the factor that the assessment

or evaluation is intended to measure.

Although not specifically discussed in Section 504’s regulations, schools may be familiar with a

functional behavioral assessment (FBA) from the context of the IDEA. An FBA focuses on

identifying the function or purpose behind a child’s behavior, and typically examines a wide range

of factors specific to the child, including social, affective, and environmental factors.

The goal

34 C.F.R. § 104.35(b)-(c).

Id.

34 C.F.R. §§ 104.33(b)(1), 104.35.

34 C.F.R. § 104.35(b), (c)(1), (c)(2). Though not specifically required for evaluations conducted under Section 504,

districts also may find it helpful to look to the IDEA’s regulations for the types of information that are reasonable,

relevant, and useful in conducting evaluations under Section 504. See 34 C.F.R. § 300.304(b)(1), (b)(3) (requiring

districts to use, at a minimum, “a variety of assessment tools and strategies to gather relevant functional,

developmental, and academic information about the child . . .” and “technically sound instruments” for the

assessments).

34 C.F.R. § 104.35(c).

34 C.F.R. § 104.35(b)(1)-(3).

The IDEA requires schools to conduct an FBA under certain circumstances in the context of disciplinary removals.

See 34 C.F.R. § 300.530; Questions and Answers, supra note 24 at 28-29, 52.

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of an assessment, whether behavioral or otherwise, is to identify student needs and provide the

Section 504 team with the information needed to determine effective services and supports for

the student. If there is reason to believe the student’s behavior may be based on the student’s

disability, one purpose of the evaluation is an individualized assessment of the behavior,

and

the Section 504 team may determine that an FBA is appropriate for that student. If the school

does not assess a student’s challenging behaviors during the evaluation process, including

disability-based behaviors that pose a threat to the safety of the student or others, the Section

504 team would lack the information needed to design a program that will meet the student’s

individual educational needs, and the student could be denied FAPE.

3. Identifying Necessary Behavioral Supports, Including Behavioral Intervention Plans

Where a student’s evaluation shows that challenging behavior is caused by or directly and

substantially related to the student’s disability or disabilities, the placement decision by the

Section 504 team must identify individualized services, such as behavioral supports,

to meet the

student’s educational needs.

Individualized behavioral supports may include, among other

examples: regular group or individual counseling sessions, school social worker services, school-

based mental health services, physical activity, and opportunities for the student to leave class

on a scheduled or unscheduled basis to visit a counselor or behavioral coach when they need

time and space to “cool down” or self-regulate.

To support a student’s needs, Section 504 teams can consider using information obtained

through a behavioral assessment to proactively develop and implement a behavioral intervention

plan (BIP) and incorporate the BIP into the student’s Section 504 plan. A BIP identifies behavioral

supports to reduce or eliminate, and often replace, those behaviors that interfere with the

student’s or other students’ ability to learn, and it is tailored to the student with a disability’s

specific behavioral needs. A BIP that is meaningfully informed by a behavioral assessment can

help eliminate or reduce disability-based behavior that would lead to violations of a student code

of conduct. Through a behavioral assessment, the Section 504 team can learn about the nature

of the behavior, the function the behavior serves for the student, factors indicating when the

behavior might occur, and the consequences of the behavior.

If a Section 504 team chooses to

use a behavioral assessment to develop a BIP, and that assessment identifies specific behavioral

supports needed to ensure FAPE, the Section 504 team would need to develop the BIP with such

supports, and the school would need to implement it, as part of the student’s Section 504 plan

See 34 C.F.R. §§ 104.33(b)(1), 104.35(a)-(c).

See 34 C.F.R. § 104.33(b)(1).

34 C.F.R. § 104.35. In the case of IDEA-eligible students whose disability-based behavior interferes with the

student’s learning, or other students’ learning, the IEP team is required to consider, and include in the IEP where

necessary to provide FAPE, the use of positive behavioral interventions and supports and other strategies to

address the disability-based behavior. 20 U.S.C. § 1414(d)(3)(B)(i). 34 C.F.R. §§ 300.324(a)(2)(i), (b)(2); §

300.320(a)(4). See OSERS, Dear Colleague Letter on the Inclusion of Behavioral Supports in Individualized Education

Programs 1 (Aug. 1, 2016), https://sites.ed.gov/idea/files/dcl-on-pbis-in-ieps-08-01-2016.pdf

This support is distinct from seclusion, which can deny FAPE and result in discrimination. See supra note 14.

See OSERS, Positive, Proactive Approaches to Supporting Children with Disabilities: A Guide for Stakeholders 7-9

(July 19, 2022),

https://sites.ed.gov/idea/files/guide-positive-proactive-approaches-to-supporting-children-with-

disabilities.pdf.

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for providing FAPE.

To be useful in addressing the behavior, a BIP should include information about: acceptable

replacement behaviors,

who will teach the student to use those behaviors and how, what staff

should do to support the student if the behavior of concern recurs, and how the Section 504 team

will monitor and measure the BIP’s implementation and effectiveness. In identifying acceptable

replacement behaviors that are achievable for the student, schools may not rely on stereotypes,

generalizations, or assumptions about a student’s disability, race, color, national origin, or sex,

such as assuming that girls are more capable of sitting still than boys.

If a student continues to have disability-based behavioral challenges that impede learning,

despite the student’s Section 504 plan being properly implemented, i.e., with fidelity, the

student’s placement may not be adequately addressing the student’s disability-based behavioral

needs. Depending on the individual circumstances, the school may reconvene the Section 504

team to determine if additional or different services are necessary.

If an adjustment in services

does not adequately address the behavior—including because the disability results in new

behaviors or the existing behaviors escalate in severity—an additional evaluation may be

necessary to identify the student’s current needs and to develop additional or different supports

to meet those needs.

An additional evaluation would also be necessary if the school has reason

to believe the student may have an additional disability affecting their behavior.

Because the Section 504 FAPE obligation is ongoing, districts may need to reconvene Section 504

teams to: monitor the implementation of the Section 504 plan and effectiveness of a student’s

placement; determine if additional evaluations are needed; and determine if any adjustment in

the placement, including in behavioral supports or the student’s educational environment

(discussed below) is needed.

4. Supporting Students with Disability-Based Behavior in Appropriate Educational Settings

Section 504 requires that a school district educate a student with a disability in an academic

setting alongside students without disabilities to the maximum extent appropriate for the needs

of the student with a disability.

The same is true for the provision of nonacademic services and

participation in extracurricular activities.

Thus, a school district must place a student with a

Depending on the facts and circumstances, a student's Section 504 team could determine, for example, that

teaching the student to remain seated and face the teacher is an acceptable behavior to replace the behavior of

running around the classroom, and that the replacement behavior meets the student's individualized needs.

See 34 C.F.R. §§ 104.33(b), 104.34(a), 104.35(a)-(c), 104.4; § 100.3(a), (b)(1), (b)(5); § 106.31(a), (b).

Please note, however, that “a full reevaluation is not required every time an adjustment in placement is made.”

34 C.F.R. pt. 104, App. A, ¶ 25.

34 C.F.R. § 104.35. As noted earlier, see supra note 23, some Section 504-only students ultimately may be found

to be IDEA-eligible as a result of subsequent evaluations.

See id.

See id. See infra pp. 14-21 (discussing the subsequent evaluation required, and applicable procedural

safeguards, if a proposed adjustment would significantly change the student’s placement).

34 C.F.R. § 104.34(a).

34 C.F.R. §§ 104.34(b) (meals and recess), 104.37(a)(2) (counseling services, physical recreational athletics,

transportation, health services, recreational activities, special interest groups or clubs sponsored by the recipient,

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disability in the regular educational environment—meaning the setting where students without

disabilities participate in academic, nonacademic, and extracurricular services and activities—

unless the Section 504 team reaches an individualized determination that the student’s needs

cannot be met satisfactorily in that environment even with supplementary aids and services.

Supplementary aids and services could include, among other examples, preferential seating,

counseling services, or the implementation of a BIP. In most cases, if the Section 504 plan has

been implemented as designed but still does not adequately address the disability-based

behavior, the Section 504 team will be able to identify additional or different services to enable

a student with a disability who is in the regular education environment to remain in that setting.

Any decisions about a student’s educational environment must always be individualized. For

example, a school district would violate Section 504 if it had a one-size-fits-all policy that required

students with a particular disability to attend a separate class, program, or school regardless of

educational needs. Similarly, it would violate Section 504 to respond to a student’s disability-

based behavior by shortening the length of the student’s school day, thus reducing the minutes

or hours the student is in the educational environment, without reconvening the Section 504

team to determine if additional or different services are needed, or if an additional evaluation is

necessary. Any decision by the Section 504 team to reduce the amount of time a student is in

school or to place the student in a separate setting must be based on an individualized

determination about the student’s needs, using information from a variety of sources that is

documented and carefully considered, and must be informed by an evaluation whenever the

proposed changes would constitute a significant change in placement.

Schools must identify and provide individualized behavioral supports that a student with a

disability needs no matter the educational setting, including when the Section 504 team

determines that a more restrictive educational environment is necessary.

In determining the

student’s individualized placement, and reconvening the Section 504 team as needed, schools

must place them along with students without disabilities to the maximum extent appropriate to

meet the needs of the student with a disability.

The determination of which educational setting

among an array of settings is appropriate must be tailored to the student’s individual needs. The

Section 504 team also must ensure that the school has in place the individualized services the

student needs to support a return to a less restrictive setting.

Note that some Section 504-only

students may need an evaluation under the IDEA if their school has reason to believe the student

requires special education.

referral to agencies that provide assistance to persons with disabilities, and employment of students, including

employment by the school district and assistance in making available outside employment).

34 C.F.R. § 104.34. See infra pp. 15-16, 18-21 (discussing when adjustments to a student’s educational setting

may be needed to address an immediate safety threat).

34 C.F.R. §§ 104.34(a); 104.35(a), (c)(2).

34 C.F.R. §§ 104.33(a), (b)(1); 104.35(c).

34 C.F.R. §§ 104.33(b)(1); 104.34(a), (b); 104.35(c). If placement in the more restrictive educational environment

constituted a significant change in placement and there is reason to believe the student needs to return to the less

restrictive setting, an evaluation is required under Section 504. 34 C.F.R. § 104.35(a).

See 34 C.F.R. §§ 104.33(b)(1); 104.34(a), (b); 104.35(c).

See supra note 23.

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5. Procedural Safeguards Available Under Section 504 to Parents or Guardians Who

Believe Their Child with Disability-Based Behavior Has Been Denied FAPE

Schools are required under Section 504 to develop and implement a system of procedural

safeguards to enable parents or guardians to challenge the school’s actions regarding the

provision of FAPE, including with respect to identification, evaluation, and placement.

The

safeguards include:

 notice of the proposed action, including a proposed disciplinary removal that

constitutes a significant change in placement;

 an opportunity for the parent or guardian to review the student’s educational records;

 an impartial due process hearing, with an opportunity for the parent or guardian to

participate and to be represented by an attorney; and

 a review procedure to appeal the outcome of the hearing.

Compliance with the IDEA’s procedural safeguards is one means of meeting this requirement.

Parents or guardians can use these procedures to challenge, among other actions:

 a denial of the parent’s or guardian’s request to evaluate the student;

 the scope of an evaluation, such as where the evaluation failed to include an

assessment of the student’s disability-based behavior;

 the findings of an evaluation, including findings related to a determination that

behavior for which certain discipline is proposed is not disability-based; and

 a denial of a request to adjust the student’s current services and supports as needed

to address a disability-based behavior.

In addition, with certain exceptions, the Family Educational Rights and Privacy Act (FERPA) gives

parents or guardians the right to review, seek amendment of, and provide consent for the

disclosure of personally identifiable information from their child’s education records, including

education records created and maintained by a school’s law enforcement unit exclusively for

non-law enforcement purposes, such as a disciplinary action or proceeding.

B. FAPE Requirements Applicable to Student Discipline

In addition to the general requirements for Section 504 FAPE discussed above, the use of student

34 C.F.R. § 104.36.

See infra pp. 14-21 (discussing significant changes in placement due to discipline); 34 C.F.R. §§ 104.35(a), 104.36.

In addition to Section 504’s requirements, the Supreme Court has explained that the Due Process Clause of the

U.S. Constitution requires, “in connection with a suspension of 10 days or less, that the student be given oral or

written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities

have and an opportunity to present his side of the story.” Goss. v. Lopez, 419 U.S. 565, 581 (1975).

34 C.F.R. § 104.36.

Id.

20 U.S.C. § 1232g; 34 C.F.R. pt. 99. FERPA addresses privacy rights regarding education records, including the

right of parents or guardians to inspect and review their child’s education records. See 34 C.F.R. §§ 99.3 (defining

“education records”), 99.8 (explaining what provisions apply to records of a law enforcement unit). For more

information on FERPA and law enforcement, please refer to the Department’s guidance on School Resource

Officers, School Law Enforcement Units, and the Family Educational Rights and Privacy Act (FERPA),

https://studentprivacy.ed.gov/sites/default/files/resource_document/file/SRO_FAQs_2-5-19_0.pdf

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discipline can implicate FAPE in other ways.

This section discusses: (1) when proposed discipline

of a student with a disability requires an additional evaluation and the steps schools must take

after this evaluation; (2) the application of the FAPE requirements to students with disabilities

who are subject to threat or risk assessments; (3) the application of the FAPE requirements to

informal disciplinary removals; and (4) Section 504’s limited exception concerning the discipline

of students with disabilities who currently engage in illegal substance use.

1. Evaluations Prior to a Disciplinary Removal that Significantly Changes the Placement of

a Student with a Disability

Section 504 requires school districts to evaluate students with disabilities prior to any significant

change in a student’s placement.

In the context of a significant change of placement due to a

proposed disciplinary removal, the purpose of the evaluation (referred to in this guidance as a

manifestation determination)

is to decide whether the behavior for which discipline is

proposed is based on the student’s disability, and, if so, whether changes in the student’s

placement are required to ensure the student receives FAPE. Under Section 504, OCR’s

longstanding interpretation of a significant change in placement in the context of discipline has

been an exclusion of more than 10 consecutive school days or a similar pattern of removal.

Examples include an expulsion or an out-of-school suspension or other disciplinary removal of

more than 10 consecutive school days.

OCR considers a series of short-term nonconsecutive removals to also constitute a significant

change in placement if combined they total more than 10 school days during the school year and

For IDEA-eligible students, the IDEA and its regulations provide specific requirements for disciplinary removals.

These requirements differ in some respects from Section 504’s requirements. See 34 C.F.R. §§ 300.530-537. To

learn more, please refer to OSERS’s Questions and Answers: Addressing the Needs of Children with Disabilities and

IDEA’s Discipline Procedures, supra note 24.

34 C.F.R. § 104.35(a) (“A recipient that operates a public elementary or secondary education program or activity

shall conduct an evaluation in accordance with the requirements of paragraph (b) of this section of any person

who, because of handicap, needs or is believed to need special education or related services before taking any

action with respect to the initial placement of the person in regular or special education and any subsequent

significant change in placement.”).

The IDEA’s regulations use the term “manifestation determination” in connection with determining whether the

conduct for which certain discipline is proposed is a manifestation of a student’s disability. See 34 C.F.R. §

300.530(e). Section 504’s regulations do not use the term “manifestation determination” but require an

“evaluation” prior to a significant change in placement. See 34 C.F.R. §104.35(a). For purposes of this document,

this type of evaluation is referred to as a “manifestation determination.” Although a manifestation determination

under IDEA and Section 504 have the same purpose, different regulatory requirements apply. See Questions and

Answers, supra note 24.

34 C.F.R. § 104.35(a); Section 504 Resource Guide, supra note 19 at 22 & n.76. The Section 504 Resource Guide

cites Honig v. Doe, 484 U.S. 305, 325 n.8 (1988). In Honig, the Supreme Court found that OSERS adopted OCR’s

interpretation from 1980 regarding an exclusion of more than 10 school days and applied it to the Education of the

Handicapped Act (EHA), which preceded the IDEA; the Court deferred to the Department’s interpretation of EHA.

Id. In doing so, the Court found that the Department “correctly decided that a suspension in excess of 10 days does

constitute a prohibited ‘change in placement’” for the purposes of the EHA. Id. The Court also reaffirmed that a

suspension of more than 10 school days triggers the due process protections of the Fourteenth Amendment to the

U.S. Constitution. Id. (citing Goss v. Lopez, 419 U.S. 565, 576 (1975)). A “10-day suspension from school is not de

minimis . . . and may not be imposed in complete disregard of the Due Process Clause.” Goss, 419 U.S. at 576.

Please see the limited exception, infra page 24, for proposed discipline for current use of illegal drugs or alcohol.

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create a pattern of removal.

OCR determines whether a series of removals creates a pattern of

removal on a case-by-case basis, considering evidence related to, among other factors: the length

of each removal, the proximity of the removals to each other, the total amount of time the

student is removed from school, and the nature of the behavior underlying each incident and

giving rise to the series of removals.

Schools must ensure that they do not violate the rights of

a student with a disability by creating a pattern of removals that constitutes a significant change

in placement absent a manifestation determination.

A school must provide notice to the parent or guardian of a student with a disability before taking

action regarding the student’s evaluations or placement, including if it proposes discipline that

would constitute a significant change in placement.

Because schools are prohibited from

implementing a disciplinary removal of a student with a disability that constitutes a significant

change in placement without first conducting the manifestation determination described on the

following page, in some instances schools may need to expedite the manifestation determination

to avoid violating Section 504 FAPE requirements. If a school removes a student with a disability

for more than 10 school days without completing the evaluation required before a significant

change in placement, the school would need to correct the failure to comply with Section 504.

During the interim period when the required manifestation determination is being completed

and before the school knows if the behavior is based on the student’s disability, the school can

take other steps if needed to address the potential ongoing impact of the behavior, including any

impact on the safety of the student or others. Consider, for example, a school that determined

through its normal factfinding process that a student with a disability harassed a classmate, and

thus proposed to expel the student with a disability. The school would be required to evaluate to

determine if the student’s behavior was based on a disability because the expulsion would be a

significant change in placement.

While the evaluation is being completed, in addition to offering

See 34 C.F.R. § 104.35(a). In the context of discipline, OCR’s interpretation of Section 504’s regulation regarding

a significant change in placement aligns with the IDEA’s requirements regarding a change in placement for a series

of disciplinary removals that are 10 consecutive school days or less but total more than 10 school days in a school

year. See 34 C.F.R. § 300.536(a)(2).

The factors OCR considers in making the factual determination in its enforcement matters align closely with the

IDEA’s requirements pertaining to a pattern of removals that constitute a change in placement. See 34 C.F.R. §

300.536(a)(2)(ii), (a)(2)(iii) (IDEA regulations concerning change of placement because of disciplinary removals).

See supra note 85.

See 34 C.F.R. §§ 104.33(b)(1)(ii) (FAPE requires compliance with regulations on educational setting, evaluation

and placement, and procedural safeguards), 104.35(a) (requirements for an evaluation prior to a significant change

in placement), 104.36 (requirements for procedural safeguards, including notice, for evaluations and placement

decisions); 34 C.F.R. pt. 104, App. A. ¶ 25 (due process procedures must be afforded to parents or guardians before

the recipient takes any action regarding evaluation, or placement of a student with a disability).

See 34 C.F.R. § 104.35(a). If OCR investigates and finds a violation because a recipient did not conduct an

evaluation prior to a significant change in placement, OCR would negotiate a remedy to overcome the effects of

the discrimination. 34 C.F.R. § 104.6(a). Consistent with its obligation to operate in compliance with Section 504,

34 C.F.R. § 104.5(a), a recipient that corrects its violation on its own is also responsible for correcting any

discrimination resulting from its violation, which could include providing compensatory services. For information

on compensatory services under Section 504, please refer to OCR’s guidance, Providing Students with Disabilities

Free Appropriate Public Education During the COVID-19 Pandemic and Addressing the Need for Compensatory

Services Under Section 504 (Feb. 17, 2022), https://www2.ed.gov/about/offices/list/ocr/docs/fape-in-covid-19.pdf

See 34 C.F.R. § 104.35(a).

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services or supports to the classmate who was harassed, the school could move the student with

a disability to a different classroom within their current educational placement, if one is available,

from that of the classmate who was harassed.

Moving the student with a disability to a different

classroom would not be a significant change in placement if the student could receive the same

educational instruction, services, supports, interventions, and modifications to policies in the

new classroom, alongside students without disabilities to the same extent.

Section 504 FAPE requirements do not interfere with a school’s ability to address those

extraordinary situations in which a student’s behavior, including disability-based behavior, is an

immediate threat to their own or others’ safety. For example, nothing in Section 504’s FAPE

requirements prohibits schools from contacting mental health crisis intervention specialists or

law enforcement under such extraordinary circumstances, even if the result is that those

professionals remove the student from school. Additionally, OCR recognizes that, in emergency

circumstances, based on exigency and safety, a school may seek to impose an immediate short-

term disciplinary removal of a student with a disability because the student’s behavior presents

a serious and immediate threat to the safety of the student or of others that cannot be mitigated

by other means. Any OCR investigation would review the specific facts to determine whether the

school’s conduct was reasonably necessary to ensure safety, including under circumstances

where an immediate removal would result in a pattern of removals.

Where a school provides educational instruction and services to students without disabilities

during the pendency of disciplinary proceedings or during the period of a disciplinary removal, it

also must provide educational instruction and services to similarly situated students with

disabilities during the pendency of their evaluation.

The evaluation, i.e., the manifestation

determination, required before the eleventh school day of a disciplinary removal consists of the

two- step process described below.

STEP ONE: At the first step, the Section 504 team determines whether the behavior in question

was caused by or has a direct and substantial relationship to the student’s disability.

The school must provide the Section 504 team with relevant information from a variety of

sources sufficient to enable the team to determine if the student’s behavior is based on the

student’s disability; the school must ensure such information is documented and carefully

considered.

This information could include, for example:

 any previous evaluations of the student with respect to disability-based behavior;

As explained on page 19, the school may be required by Section 504 or other Federal civil rights laws to provide

remedies to a student who was harassed to restore or preserve the student’s equal access to their education if the

harassment created a hostile environment on the basis of race, sex, disability, or other protected classes.

34 C.F.R. § 104.33(b)(1)(i); 104.4(a), (b)(1)(i)-(iv), (vii).

See 34 C.F.R. § 104.35(a); supra note 85. See S-1 v. Turlington, 635 F.2d 342, 346-48 (5th Cir. 1981) (explaining

that an expulsion for a student with a disability is a change of placement that must be accompanied by a

determination of whether the student’s conduct “bears a relationship” to or “results from” the disability); see also

Doe v. Maher, 793 F.2d 1470, 1480 n.8 (9th Cir. 1986), aff’d sub nom. Honig v. Doe, 484 U.S. 305 (1988) (treating

the phrase “conduct that has a direct and substantial relationship” to the disability as synonymous with “conduct

that arises from” the disability, “conduct that is caused by” the disability, “[disability]-related misconduct,” and

“conduct that is a manifestation of” the disability.).

See 34 C.F.R. § 104.35(a)-(c).

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 the student’s Section 504 plan (including any behavioral supports the student needs),

any updates to the plan, and information about whether the current Section 504 plan

is being implemented with fidelity;

 psychological or medical evaluation data related to the behavior at issue;

 relevant information provided by the student’s parents or guardians;

 academic records;

 relevant discipline records, including information on whether previous disciplinary

actions led to changes in behavior, and incident reports, including any involving SROs

or other law enforcement officials, consistent with applicable Federal or State privacy

protections; and

 relevant teacher notes, observations, and data collected about the behavior.

To be useful in determining whether the behavior is based on the student’s disability, these

materials should be relevant to the behavior at issue and recent enough to provide the Section

504 team an accurate understanding of the student’s current behavior.

In reviewing information about the implementation of the student’s Section 504 plan as part of

this evaluation, the team may find that the school failed to provide behavioral supports and

services required by the plan to address the behavior underlying the proposed discipline. In this

instance, the behavior would be based on disability because the school failed to meet the

student’s behavioral needs as required by the Section 504 plan. Depending on the facts, such a

failure to implement the Section 504 plan could deny the student FAPE,

and the Section 504

team would need to consider whether, due to the denial of FAPE, the student is entitled to

compensatory services. Under these circumstances, any disciplinary removal could compound

the school’s failure to address the student’s disability-based needs by extending the denial of

FAPE during the period of removal.

For this evaluation, it is not sufficient for a school to simply use the same procedures it uses for

suspensions or expulsions of students without disabilities if those procedures do not meet

Section 504’s requirements.

For example, Section 504 requires a school’s evaluation process

to be completed by a group of persons knowledgeable about the student and the meaning of the

evaluation data.

If a single person, such as a principal who is in charge of the school’s general

disciplinary process for all students, alone determined whether a student’s behavior was based

on the student’s disability, such a unilateral decision would not comply with Section 504.

STEP TWO: The school’s next step depends on whether the behavior for which the school

proposed discipline is determined to be based on disability.

a. When the Student’s Behavior is Based on Disability

This subsection explains a school’s responsibilities when a student’s behavior is determined to

34 C.F.R. §§ 104.35(a)-(c), 104.33(b)(1). Failure to implement a student’s Section 504 plan can cause a denial of

FAPE and violate Section 504. 34 C.F.R. § 104.33(a)-(b).

See 34 C.F.R. § 104.33(b)(1)(i). See also 34 C.F.R. § 300.530(e)(1)(ii), (2), (3) (requiring remedies under the IDEA if

the conduct leading to a removal was the result of a failure to implement the student’s IEP).

See 34 C.F.R. §§ 104.33(b)(1), 104.35(a)-(c), 104.36.

34 C.F.R. § 104.35(a), (c); see Section 504 Resource Guide, supra note 19 at 15.

SUPPORTING STUDENTS WITH DISABILITIES AND AVOIDING THE DISCRIMINATORY USE OF STUDENT DISCIPLINE UNDER

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be based on disability, including options that a school has when a student’s disability-based

behavior is disruptive to other students’ learning or to school safety.

If, after a full review of the information obtained, the Section 504 team determines that the

behavior that violated a school rule is disability-based, the school is prohibited from carrying out

any discipline that would exclude the student on the basis of disability.

100

Under this

circumstance, the discipline would deny the student equal educational opportunity by excluding

the student based on disability, in violation of Section 504.

101

A finding that the student engaged in disability-based behavior in violation of a school rule could

be one reason to believe that the student’s placement may be inappropriate and that the student

may need additional or different services, such as behavioral supports, or may need a change in

educational setting to ensure FAPE. Accordingly, the Section 504 team must continue the

evaluation to determine if the student’s current placement is appropriate.

102

The Section 504

team may determine that an additional assessment, which may include a behavioral assessment,

is necessary,

103

in which case the Section 504 team should consider using the information

obtained to develop and implement a BIP.

Consider this hypothetical example

A student’s initial evaluation found that the student has post-traumatic stress disorder

and that the student’s disability-based behaviors include irritability with unprovoked

outbursts and mood swings. School staff referred the student for evaluation due to

behaviors that violated school rules, including physical fighting, verbal altercations, and

disorderly conduct. As part of the evaluation, the student’s Section 504 team obtained an

FBA and developed a Section 504 plan requiring the creation of a BIP within a specified

timeframe to address the disability-based behaviors. The school completed and

implemented the BIP as specified, yet the student continued to engage in similar conduct

violating school rules; after one incident in particular, the school proposed an expulsion.

Because an expulsion would constitute a significant change in placement, the school

conducted a subsequent evaluation, and the team determined the behavior was based on

disability. As a result, the school did not expel the student for the behavior. In considering

whether the student’s current placement was appropriate, the team realized that the

student’s FBA relied on outdated information about the student’s needs and determined

that a new FBA was necessary. Based on the findings of an updated FBA, the team

adjusted the student’s placement by adding weekly individual counseling sessions to the

group counseling sessions included as a behavioral support in the student’s BIP.

100

See 34 C.F.R. §§ 104.4(a); 104.33(a), (b)(1)(i); 104.35(a), (c).

101

See 34 C.F.R. §§ 104.4(a), (b)(1), (b)(2); 104.33(a), (b)(1)(i).

102

See 34 C.F.R. §§ 104.33(a), 104.35(c). The school could also have a responsibility to evaluate the student to

determine if they are eligible for services under the IDEA. See supra note 23; see also Questions and Answers,

supra note 24.

103

See 34 C.F.R. § 104.35(a)-(c). For IDEA-eligible students, if the behavior is determined to be a manifestation of a

student’s disability under the procedures set forth in the IDEA, the IEP team must conduct an FBA, subject to

limited exceptions. 34 C.F.R. § 300.530(f)(1)(i)-(ii). For more information about the IDEA’s requirements, see

Questions and Answers, supra note 24.

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In determining the appropriate placement for the student with a disability, the impact of the

student’s disability-based behavior on other students is a relevant factor.

104

Where a student’s

disability-based behavior significantly impairs the education of others or otherwise threatens the

safety of the student or others, the Section 504 team’s placement determination could result in

a change to the student’s services, supports, or educational setting to more effectively address

the behavior and attempt to prevent it from recurring. OCR recognizes that, in addition to

schools’ duties concerning the provision of FAPE, schools may have responsibilities under Section

504 or other Federal civil rights laws (such as Title VI of the Civil Rights Act of 1964 and Title IX of

the Education Amendments of 1972) to provide remedies to restore or preserve other students’

equal access to the school’s education programs and activities because, for example, a student’s

disability-based behavior has created a hostile environment on the basis of race, sex, disability,

or other protected classes. Where the FAPE requirements of Section 504 require a school to

address a student’s disability-based behavior by adjusting the student’s placement rather than

implementing discipline, the student’s Section 504 team is responsible for considering the

impacts of the behavior on other students when determining the placement for the student with

a disability.

The Section 504 team must consider whether additional or different services and supports would

enable the student to remain in their current educational setting.

105

For instance, a student’s

Section 504 team could determine that, in order for a student with a disability who harassed a

classmate to safely remain in the regular education program, the student with a disability needs

more intensive school-based mental health counseling and an adjustment to their schedule to

limit the student’s interactions with the classmate subjected to the harassment. In addition to

adjusting the student with a disability’s services and supports as needed, an appropriate remedy

to a hostile environment must be tailored to the circumstances and the requirements of the

applicable Federal civil rights laws; for example, a school may be required to offer supportive

measures to the student subjected to harassment and provide any individualized services or

supports the student needs to access their education.

106

The student’s Section 504 team may determine that the individual student’s needs cannot be

104

34 C.F.R. pt. 104, App. A, ¶ 24 (“Although under § 104.34, the needs of the [student with a disability] are

determinative as to proper placement, . . . where a [student with a disability] is so disruptive in a regular classroom

that the education of other students is significantly impaired, the needs of the [student with a disability] cannot be

met in that environment. Therefore, regular placement would not be appropriate to his or her needs and would

not be required by § 104.34.”)

105

See 34 C.F.R. § 104.34(a).

106

See generally 34 C.F.R. §§ 104.4, 104.6, 104.33(a), (b) (Section 504 requirements); see also Section 504 Resource

Guide at 32-33, supra note 19 (discussing schools’ responsibilities under Section 504 to respond to harassment of

students with disabilities, which could include providing counseling for the students); §§ 106.3, 106.30(a),

106.31(a), (b), 106.44, 106.45(b)(1)(i) (Title IX requirements); see also OCR, Questions and Answers on the Title IX

Regulations on Sexual Harassment (July 2021), at 18 (July 20, 2021, updated June 28, 2022),

https://www2.ed.gov/about/offices/list/ocr/docs/202107-qa-titleix.pdf

(providing examples of supportive

measures); §§ 100.3(a), (b), 100.8 (Title VI requirements); see also OCR, Racial Incidents and Harassment Against

Students (Mar. 10, 1994),

https://www2.ed.gov/about/offices/list/ocr/docs/race394.html (providing examples of

possible appropriate responses to harassment under Title VI, including counseling for victims of racial

harassment). To learn more about recipients’ responsibility to address harassment under these laws, please visit

www.ed.gov/ocr for additional guidance.

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met in the regular education environment because, even with supplementary aids and services,

the student’s disability-based behavior significantly impairs the student’s ability to learn or the

ability of other students to learn.

107

For a student whose disability-based behavior cannot be

addressed in less restrictive settings even with supplementary aids and services, placement in a

more restrictive setting could be appropriate until the student’s needs can be met in a less

restrictive setting. Regardless of a student’s educational setting, the student with a disability is

entitled to FAPE, including behavioral supports for disability-based behavior.

108

Furthermore, if

the team determines that the disability-based behavior cannot be addressed in the regular

educational setting even with supplementary aids and services, and the student therefore needs

a more restrictive setting, the student must continue to be educated with students without

disabilities to the maximum extent appropriate to the needs of the student with a disability.

109

For instance, the Section 504 team may determine that, based on the student’s needs, the

appropriate placement for a particular student with a disability who has autism is in a separate

classroom with staff trained specifically to support students with autism, located in the same

school, with individualized behavioral supports and services to enable the student to learn safely

and productively in that classroom. The Section 504 team can reconvene as needed to regularly

monitor whether the student’s behavioral needs have changed such that the student’s

placement and educational environment should be modified again. Of course, if the team found

that, even with properly implemented behavioral supports and supplementary aids and services,

the student’s disability-based behavior significantly impaired the education of other students in

the separate classroom, this would not be an appropriate placement.

110

Because any Section 504 FAPE determination must be individualized, schools may not rely on

stereotypes, generalizations, or assumptions about individuals with disabilities generally or a

student’s specific disability in deciding whether a student’s needs can be met in a particular

educational environment.

111

For example, Section 504 precludes school staff from making

placement decisions based on an assumption that all students who have a conduct disorder

107

See 34 C.F.R. § 104.34(a). The Section 504 team may also determine that an evaluation to determine the

student’s eligibility under the IDEA is needed. See supra note 23; see also Questions and Answers, supra note 24.

108

34 C.F.R. §§ 104.33(b)(1)(i), 104.35(c).

109

34 C.F.R. §§ 104.35(c), 104.34(a). See supra pp. 11-12. Schools must provide appropriate placements for

students who cannot be educated in the regular education setting. See 34 C.F.R. pt. 104, App. A, ¶ 23 (explaining

that, under 34 C.F.R. § 104.33(b), “[a]n appropriate education could consist of education in regular classes,

education in regular classes with the use of supplementary services, or special education and related services.

Special education may include specially designed instruction in classrooms, at home, or in private or public

institutions . . . ”); 34 C.F.R. § 104.33(c)(3) (discussing residential placements). Under the IDEA, special education

includes instruction conducted in the home, in hospitals and institutions, and in other settings, 34 C.F.R. §

300.39(a)(1), and the IDEA requires that school districts have available a continuum of alternative placements to

meet the individual educational needs of different children with disabilities who need special education. 34 C.F.R. §

300.115(a), (b)(1).

110

34 C.F.R. § pt. 104, App. A, ¶ 24. As stated previously, the Section 504 team may also determine that an

evaluation to determine the student’s eligibility under the IDEA is needed. See supra note 23; see also Questions

and Answers, supra note 24.

111

See 34 C.F.R. §§ 104.33(b), 104.34(a), 104.35(a)-(c). See Guckenberger, 974 F.Supp. at 134. See also note 64 and

accompanying text (explaining that schools may not rely on stereotypes, generalizations, or assumptions about a

student’s race, color, national origin, or sex in making placement decisions).

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cannot be educated in the general education setting.

b. When the Student’s Behavior is Not Based on Disability

If the Section 504 team finds that the student’s behavior was not based on a disability, Section

504 permits the school to discipline the student as it proposed as long as it does so in the same

manner that it disciplines similarly situated students without disabilities, as explained in Section

IV.A.

112

Under these circumstances, the discipline would not violate Section 504 because the

student is not being excluded on the basis of any disability-based behavior and is being treated

in the same manner as a student without a disability for substantially the same behavior.

113

In addition, if a school does not provide educational services to students without disabilities who

are suspended or expelled, neither Section 504’s FAPE requirements nor the nondiscrimination

responsibilities discussed in Section IV require the school to continue providing educational

services to the student with a disability who is disciplined in the same way for behavior that is

not based on their disability.

114

Of course, a school may choose to provide all students with

continued educational services. For students with disabilities under Section 504 who are also

IDEA-eligible, the IDEA requires the school to provide continued educational services in the

context of certain disciplinary removals.

115

When a student with a disability returns to school from a disciplinary removal, the evaluation

and placement requirements explained above continue to apply. If a student’s return to school

involves a significant change in placement, Section 504 requires the school to which the student

is returning to conduct an evaluation and determine the student’s appropriate placement,

including the individualized behavioral supports needed to address the student’s disability-based

behavior.

116

As outlined above, the evaluation could include an FBA, as appropriate, used to

develop a BIP. Even where the student’s return would not involve a significant change in

placement, convening the Section 504 team to determine if there should be any adjustment in

the student’s behavioral supports and other services would best allow the school to support the

student’s needs upon returning to school and may help prevent future behavioral incidents.

2. Application of FAPE Requirements to Students with Disabilities Who May Be Subject to

Threat or Risk Assessments

Some schools require students to undergo a “threat assessment” or “risk assessment” in

connection with student discipline. These assessments are used to identify students who may

pose a threat of physical violence to others at school or at school-sponsored events or to assess

the level of risk that a student who previously engaged in serious misbehavior may pose to others

in such settings. Under Section 504, schools must avoid any disability discrimination in their use

of threat or risk assessments, such as unnecessarily treating students with disabilities differently

112

See 34 C.F.R. §§ 104.33(b)(1)(i); 104.4(a), (b)(1)(i)-(iv), (vii).

113

34 C.F.R. § 104.4(a), (b)(1). See infra pp. 27-30 (discussing when treating a student with a disability differently is

discriminatory).

114

See 34 C.F.R. §§ 104.33(b)(1)(i); 104.4(a), (b)(1)(i)-(iv), (vii).

115

See 34 C.F.R. § 300.530(b)(2), (c), (d), (g) (requiring schools to provide educational services for IDEA-eligible

students under certain circumstances); Questions and Answers, supra note 24.

116

34 C.F.R. § 104.35(a)-(c).

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from other students,

117

and must safeguard a student with a disability’s FAPE rights throughout

any threat or risk assessment process.

118

Schools can do so by ensuring that school personnel

who are involved in screening for and conducting threat or risk assessments for a student with a

disability are aware that the student has a disability and are sufficiently knowledgeable about the

school’s FAPE responsibilities so that they can coordinate with the student’s Section 504 team. A

school district whose threat or risk assessment team does not coordinate with the Section 504

team of a student with a disability could risk violating the student’s FAPE rights.

119

Coordination with the Section 504 team prior to completing the threat or risk assessment

determination could result in additional or different behavioral supports to mitigate or eliminate

the threat or risk. For example, the Section 504 team can provide valuable information about:

the nature of the student’s disability-based behaviors and common triggers; whether the student

has been receiving behavioral supports, and, if so, the effectiveness of those supports; and

specific supports and services that may be able to mitigate or eliminate the risk of harm without

requiring exclusion from school. Even if a student is removed from school following a threat or

risk assessment, the school must ensure that the student continues to receive the services

required for FAPE and that the student is afforded any applicable procedural rights, including, as

needed, by notifying and consulting the student’s Section 504 team.

120

3. Application of FAPE Requirements to Informal Disciplinary Removals

In OCR’s enforcement experience, some schools informally issue or propose a disciplinary

removal in response to a student’s disability-based behavior. Informal exclusions occur for part

or all of the school day, and they can sometimes last for an indefinite period of time. These

exclusions are considered informal because the school removes the student from class or school

without invoking the school’s disciplinary procedures.

121

Informal exclusions are subject to the same Section 504 requirements as formal disciplinary

removals, including the FAPE requirements discussed above and the nondiscrimination

responsibilities discussed in Section IV. As with more formal uses of student discipline, when a

117

See infra pp. 27-30 (discussing when treating a student with a disability differently is discriminatory).

118

See 34 C.F.R. §§ 104.4(b)(1), 104.33-104.36. See also supra p. 16 (discussing ways schools can comply with

Section 504’s FAPE requirements under emergency circumstances in which a student with a disability’s behavior is

an immediate threat to their own or others’ safety).

119

Through its enforcement experience, OCR is aware that some law enforcement agencies may instruct school

district officials to keep the identity of a student, who is out of school and being investigated, confidential during

its investigation. This instruction may include a specific limitation of staff, e.g., superintendent and school principal,

who may be informed of the student’s identity. In this instance, school records would identify if the student is a

student with a disability, and school officials must consult such records to determine if the student is protected by

Section 504. See 34 C.F.R. § 104.33(a). If so, the district is responsible for ensuring that its compliance with a

confidentiality instruction does not result in the district violating the student’s rights under Section 504 or other

Federal laws. For example, the district can communicate its obligations under Federal law to the law enforcement

agency and work with the agency to permit additional school staff to be informed of the student’s identity and

out-of-school status on a need-to-know basis to ensure the student’s rights under Section 504 are not violated.

120

See 34 C.F.R. §§ 104.33, 104.35. See supra pp. 14-21 (discussing FAPE requirements for student discipline).

121

An informal disciplinary exclusion due to a student’s disability-based behavior is distinct from a determination,

made consistent with the FAPE requirements discussed in Section II, that a child needs to attend classes for only

part of the school day due to a disability, such as for health-related reasons.

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student is subjected to informal removals that constitute a significant change in placement, the

school must comply with the requirements pertaining to evaluation, placement, setting, and

procedural safeguards discussed above.

122

Additionally, a school’s lack of appropriate record-

keeping regarding informal exclusions may cause the school to violate Section 504’s FAPE

requirements and procedural safeguards, including the documentation requirement for

evaluation and placement decisions and the parent’s or guardian’s right to review their child’s

education records.

123

Accurate records of the basis for excluding the student and the time during

which a particular student was excluded are needed for a school to determine whether and when

a proposed exclusion would constitute a significant change in placement, and thus determine

when Section 504’s notice requirement is triggered, whether the behavior that led to the

informal exclusion(s) is a manifestation of the disability, and whether the student’s behavioral

needs warrant an additional evaluation.

124

OCR is aware that some schools informally exclude students, or impose unreasonable conditions

or limitations on a student’s continued school participation, as a result of a student’s disability-

based behaviors in many ways, such as:

 Requiring a parent or guardian not to send their child to, or to pick up their child early

from, school or a school-sponsored activity, such as a field trip;

 Placing a student on a shortened school-day schedule without first convening the

Section 504 team to determine whether such a schedule is necessary to meet the

student’s disability-specific needs;

 Requiring a student to participate in a virtual learning program when other students

are receiving in-person instruction;

 Excluding a student from accessing a virtual learning platform that all other students

are using for their instruction;

 Informing a parent or guardian that the school will formally suspend or expel the

student, or refer the student to law enforcement, if the parent or guardian does not:

pick up the student from school; agree to transfer the student to another school,

which may be an alternative school or part of a residential treatment program; agree

to a shortened school day schedule; or agree to the use of restraint or seclusion; and

 Informing a parent or guardian that the student may not attend school for a specific

period of time or indefinitely due to their disability-based behavior unless the parent

or guardian is present in the classroom or otherwise helps manage the behavior (e.g.,

through administering medication to the child).

Depending on the facts and circumstances, OCR could find that one or more of these practices

violate Section 504. In determining whether the school complied with Section 504, OCR would

122

See 34 C.F.R. §§ 104.33(a),(b); 104.35(a)-(c); 104.36. The use of informal exclusions of students with disabilities,

like other forms of discipline, can also result in discriminatory different treatment. See infra pp. 27-30.

123

34 C.F.R. §§ 104.35(a), (c)(2); 104.36. See 34 C.F.R. § 100.6(b) (“Each recipient shall keep such records . . . as the

responsible Department official or his designee may determine to be necessary to enable him to ascertain whether

the recipient has complied or is complying with this part”), incorporated by reference at 34 C.F.R. § 104.61. See

supra p. 13 (explaining Section 504’s procedural safeguards); p. 9 (explaining documentation requirements for the

information considered in connection with evaluations and placement determinations).

124

Id.

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consider, among other relevant factors: whether the school sufficiently documented the

exclusion to allow the student’s Section 504 team to make informed decisions about FAPE (e.g.,

by documenting the behavior that led to the exclusion, length of the exclusion, and whether the

school provided the services necessary for the student to receive FAPE, which could include

implementation of a BIP); the nature and duration of the exclusion, including whether it

constituted a significant change in placement; whether the school complied with the applicable

requirements regarding evaluation, placement, setting, and procedural safeguards; and whether

the school denied the student a “free” public education under Section 504 by substituting the

parents’ or guardians’ support for their children for the school’s own responsibility to provide

FAPE.

125

Also, through OCR’s enforcement work, OCR has encountered descriptions of a removal as an

“excused absence,” among other terms, that is in fact an informal exclusion. The educational

impact on the student, rather than the specific words used to describe the removal, is what

matters when determining the school’s compliance with Section 504’s FAPE requirements.

4. Limited Exception Regarding FAPE and Discipline for Current Illegal Substance Use

There is one limited exception in which the above Section 504 FAPE requirements do not apply.

Under Section 504, where a school proposes disciplining a student with a disability because of

current use of illegal drugs or the use of alcohol, the FAPE requirements discussed above,

including those regarding an evaluation before a significant change in placement, do not apply.

126

Schools may discipline a student with a disability who is currently engaging in the illegal use of

drugs or the use of alcohol to the same extent that the school disciplines students without

disabilities for this conduct.

127

In addition, the due process procedures discussed above do not

apply to disciplinary actions related to current illegal drug or alcohol use.

128

This limited exception

does not apply to a student who: (1) has successfully completed a supervised drug rehabilitation

program or has otherwise been rehabilitated successfully and is no longer engaging in the illegal

use of drugs; (2) is participating in a supervised rehabilitation program and is no longer engaging

in such use; or (3) is erroneously regarded as engaging in such use.

129

III. REASONABLE MODIFICATIONS TO DISCIPLINARY POLICIES FOR STUDENTS

WITH

DISABILITIES

While schools lawfully may impose discipline on students with disabilities, they must still avoid

discrimination. Under Section 504, schools must make reasonable modifications to their criteria,

policies, practices, or procedures when necessary to avoid discrimination on the basis of

125

See 34 § C.F.R. 104.33(a), (c).

126

29 U.S.C. §§ 794(a), 705(20)(C)(iv). “Illegal use of drugs” refers to the use of drugs for which possession or

distribution is unlawful under the Controlled Substances Act. 21 U.S.C. § 801 et seq.; 29 U.S.C. § 705(10).

127

29 U.S.C. § 705(20)(C)(iv).

128

Id. See supra p. 13.

129

29 U.S.C. § 705(20)(C)(ii)(I)-(ii)(III). Where this limited exception does not apply and a recipient disciplines a

student with a disability inconsistent with Section 504’s requirements, the recipient is responsible for correcting

any discrimination resulting from its violation, such as providing compensatory services and correcting the

student’s educational records. See 34 C.F.R. § 104.6(a); supra note 90.

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disability.

130

The modifications may be needed to avoid disability discrimination against an

individual student with a disability or a group of students with disabilities. Of course, schools may

determine that the modifications made to avoid disability discrimination would also benefit other

students, and thus choose to modify a policy on a school-wide basis. Reasonable modifications

can also include not applying a policy to students for behaviors that are manifestations of their

disability or disabilities. This section provides examples of modifications that might be reasonable

in the context of student discipline.

Reasonable modifications can include adapting a policy to support a student’s behavioral needs.

For instance, a school might have a policy of assigning students to sit on the school bus, during

field trips sponsored by an afterschool program, in alphabetical order and requiring all students

to remain in their assigned seats while the bus is moving, both to ensure safety and to track

student attendance effectively. Students who do not remain in their assigned seats may be

prohibited from riding the bus on future trips or face other disciplinary consequences. Under the

policy, a student with a disability who has difficulty remaining seated on the bus would be

assigned to a seat in the back of the bus based on their last name. In order to support the student

in remaining safely seated and avoid rule violations that could result in exclusion from the bus or

other consequences, the school could modify its policy of seating students in alphabetical order

by assigning the student to sit in the front or by a bus aide who would be responsible for

reminding the student to remain seated.

Consider this hypothetical example

A middle school teacher who supervises the afterschool yearbook club may have a rule

that students who interrupt others while they are speaking at the club’s weekly meetings

must miss the following week’s meeting if they continue the behavior after three

warnings. A student in the club has attention-deficit/hyperactivity disorder (ADHD), and,

as their evaluation explains, their ADHD causes them to talk excessively and frequently

interrupt conversations. Even if the rule is intended only to make sure all students can

focus during the meetings, it could have the effect of discriminating against the student

with ADHD and others if the behavior is associated with their disability. (See pages 31-32

to learn about discriminatory effects under Section 504.) The student’s parent files a

complaint with OCR

131

alleging disability discrimination after the school refused to

consider modifying the rule.

In analyzing these facts, if OCR found that the school had failed to consider whether it

could make any reasonable modifications to the rule, OCR would likely require the school

to consult with the student and their parent, as appropriate, to determine whether the

130

34 C.F.R. § 104.4 (Section 504 regulation prohibiting disability discrimination). Recipient preschools are subject

to the requirements of § 104.4 and to the obligation of making reasonable modifications. 34 C.F.R. § 104.4(a), (b).

OCR notes that the Department of Justice interprets reasonable modification requirements under Section 504

consistently with those under Title II of the ADA. See 28 C.F.R. § 35.130(b)(7) (Title II regulation requiring

reasonable modifications where necessary to avoid disability discrimination).

131

For information on how OCR investigates and resolves complaints, please refer to OCR’s Case Processing

Manual (CPM), available at https://www2.ed.gov/about/offices/list/ocr/docs/ocrcpm.pdf. T

he hypothetical

examples in this guidance involving OCR complaints presume the complaint is resolved consistent with the CPM.

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school could provide reasonable modifications. For instance, upon such consultation, the

school might determine that it would be reasonable for it to: provide individually tailored

supports that may reduce the likelihood of the student interrupting meetings, such as

incentives that recognize or reward the student for the positive behavior of raising their

hand before speaking; instruct the teacher to give the student a private visual signal to

ensure the student is aware if they are talking over others; and excuse the student from

having to miss the next weekly meeting.

Schools may also need to make reasonable modifications to their policies, practices, or

procedures to avoid disability discrimination in interactions between students with disabilities

and SROs or other school-based law enforcement personnel who operate under a contractual or

other arrangement with the school.

132

Examples of modifications that may be reasonable,

depending on the circumstances, include: using de-escalation strategies; removing distractions

and providing time and space to calm the situation when the child poses no significant safety

threat; avoiding or minimizing touching a child whose disability makes them sensitive to touch;

and waiting for a parent to arrive. It may also be a reasonable modification to have a person other

than the school-based law enforcement officer communicate with the child and support them in

de-escalating, such as a staff member whom the student trusts. When a school has reason to

believe a student’s behaviors are related to a mental health crisis, it may be reasonable to involve

personnel specially trained in crisis intervention.

133

In addition, providing effective training to staff and others who participate in the education

program under a contractual, licensing, or other arrangement, including SROs and other school-

based law enforcement personnel, on the school’s nondiscrimination responsibilities under

Section 504 is likely to ensure that these personnel are prepared to make any needed reasonable

modifications in their interactions with students with disabilities.

134

Such training could include,

among other topics: instruction on explicit and implicit bias and cultural and linguistic

competence; developmentally- and age-appropriate responses to student behaviors, including

disability-based behaviors; positive behavioral interventions and supports; parent and student

privacy rights; and working collaboratively with school administrators to improve school climate.

Training may also be invaluable to school personnel who are responsible for making threat or risk

assessments. Appropriate training could help such individuals distinguish incidents that are best

resolved by involving a crisis intervention professional and providing other reasonable

modifications to help the student de-escalate from incidents that otherwise could pose a serious

and immediate safety threat requiring removal from school. Training for individuals involved in

132

See 34 C.F.R. § 104.4; see 28 C.F.R. § 35.130(b)(7); see also supra pp. 2-3.

133

See OSERS, Supporting Child and Student Social, Emotional, Behavioral, and Mental Health Needs, supra note

31.

134

See U.S. Dep’t of Just., Civil Rights Div., Investigation of the Baltimore City Police Department 81 (Aug. 10, 2016),

https://www.justice.gov/crt/file/883296/download

(finding that training the recipient’s police officers “on how to

interact with individuals with mental health disabilities is a reasonable modification to policies, practices, and

procedures to afford people with mental health disabilities the equal opportunity for a police intervention that is

free from unreasonable force.”).

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making threat and risk assessments could also focus on strategies and procedures to coordinate

more effectively with a student’s Section 504 team.

135

IV. SECTION 504’S GENERAL PROHIBITION OF DISABILITY DISCRIMINATION IN

STUDENT DISCIPLINE–DIFFERENT TREATMENT AND DISCRIMINATORY EFFECTS

Section 504 protects students with disabilities from disability discrimination in all aspects of

student discipline, from the ways that teachers manage classroom behaviors to the use of

exclusionary discipline. Disability discrimination means excluding, denying benefits to, or

otherwise discriminating against a student based on their disability,

136

including by denying them

equal educational opportunity in the most integrated setting appropriate to their needs.

137

This section discusses two ways in which a school’s use of discipline could discriminate against

students with disabilities under Section 504, namely, when: (1) the school subjects a student to

unnecessary different treatment based on disability, or (2) the school’s criteria, policies,

practices, or procedures have unjustified discriminatory effects on students based on disability.

A. Unnecessary Different Treatment

The focus of this section is on schools’ responsibilities when disciplining a student with a disability

for behavior that is not based on disability, and, specifically, when different treatment for a

student with a disability is unnecessary.

Section 504 prohibits schools from unnecessarily treating a student differently on the basis of

disability.

138

Consider, for example, a school that generally provides all students who receive an

out-of-school suspension with a packet of instructional materials to review while they are

suspended so that students do not fall behind during the period of suspension. While the school

may wish to avoid inconveniencing the teachers of a student with a disability who learns in a

separate special education classroom during that student’s suspension because the teachers

would be required to print out a considerable amount of additional material for the student

beyond that provided to students without disabilities, the school may not avoid providing the

materials to the student with a disability solely for administrative convenience. Students with

disabilities may be provided different or separate aid, benefits, or services only when doing so is

necessary for the aid, benefits, or services to be as effective as those provided to students

without disabilities.

139

Therefore, a school violates Section 504 if it unnecessarily treats a student

differently based on their disability when administering discipline.

As explained in Section II, it may be necessary for a school in some situations to treat a student

with a disability differently when implementing discipline because the behavior giving rise to the

violation of a school rule is based on their disability.

140

In these cases, imposing the discipline in

135

See supra p. 22.

136

Disability discrimination also includes discrimination against a person because the person has a record of having

a disability or is regarded as having a disability. See 29 U.S.C. § 705(20)(B); 34 C.F.R. § 104.3(j).

137

34 C.F.R. § 104.4(b)(1)(i)-(v), (vii); 28 C.F.R. § 35.130(b)(1)(i)-(v), (vii), (b)(8). Preschools that receive Federal

financial assistance are subject to Section 504’s prohibition against discrimination. 34 C.F.R. § 104.4(a).

138

34 C.F.R. § 104.4(b)(1)(iv).

139

Id.

140

See supra pp. 14-21.

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the same way it applies to other students would deny the student FAPE.

141

As Section III explains,

it may be necessary for a school in some situations to treat a student with a disability differently

because reasonable modifications, for example to a disciplinary policy, are needed to avoid

discrimination.

When a student with a disability and a student without a disability exhibit the same or

comparable behavior in violation of school policy, the school generally may discipline the

students in the same manner. A school may not discipline a student with a disability more

severely than students without disabilities for similar behavior unnecessarily, that is unless it has

a legitimate, nondiscriminatory reason for doing so and the reason is not a pretext for

discrimination.

142

Based on the facts and circumstances of the particular incident, OCR generally

considers three questions when investigating a complaint of different treatment in student

discipline: (1) whether there is evidence the school treated the student differently based on

disability; (2) whether the school stated a legitimate, nondiscriminatory reason for the different

treatment; and (3) whether the school’s stated reason was pretext for discrimination.

First, OCR determines whether there is evidence that a school has treated the student differently

on the basis of disability. Direct evidence may include remarks, testimony, or admissions by

school officials revealing discrimination based on disability.

143

For example, OCR may find direct

evidence of different treatment based on disability when school personnel make statements

revealing that a decision in response to student behaviors was based on stereotypes,

generalizations, or assumptions about the student based on their disability or about individuals

with disabilities generally.

144

OCR also investigates whether there is sufficient indirect,

circumstantial evidence indicating the student was treated differently based on disability.

145

One

such type of evidence occurs when a school disciplines the student with a disability more severely

than a similarly situated student or group of students without a disability who engaged in

comparable behavior, such as by using corporal punishment on the student with a disability but

not disciplining the student without a disability at all.

146

Statistical evidence can also be circumstantial evidence of different treatment, such as if students

with disabilities are underrepresented in the student population but overrepresented among

students disciplined for particular conduct. OCR would not find that a recipient had treated a

141

Section 504 protects individuals who have a disability from discrimination based on their disability. Please note

that, because FAPE is necessary to ensure students with disabilities receive equal educational opportunity,

providing additional or different services to a student with a disability required for FAPE that students without

disabilities do not also receive would not constitute prohibited discrimination on the basis of disability.

142

See 34 C.F.R. § 104.4(b)(1)(i)-(v), (vii).

143

Direct evidence is evidence that “if believed, proves the fact of [discriminatory animus] without inference or

presumption.” Portis v. First Nat’l. Bank of New Albany, Miss., 34 F.3d 325, 328-329 (5th Cir. 1994) (internal

citations omitted).

144

See id. at 329; but see Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1329-30 (11th Cir. 1998), abrogated on

other grounds (remarks by non-decisionmakers or remarks unrelated to the decision at issue are not direct

evidence of discrimination).

145

See generally McDonnell Douglas v. Green, 411 U.S. 792 (1973) (method for analyzing discrimination based on

circumstantial evidence).

146

See Loyd v. Phillips Bros., Inc., 25 F.3d 518, 522 (7th Cir. 1994) (describing types of indirect evidence).

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student differently solely on the basis of statistical evidence, but such statistical evidence, along

with other types of evidence, may be used to support a finding of different treatment.

147

Next, if OCR finds evidence of different treatment, OCR investigates whether the school has

stated a legitimate, nondiscriminatory reason for treating the student with a disability differently

than other students. For example, although two students may have engaged in the same

behavior, it might be the first such violation for the student without a disability and the second

such violation for the student with a disability under a code of conduct that escalates disciplinary

consequences for repeat offenses. Because the code of conduct allows for more severe discipline

for students with prior violations, and, for the purposes of this example, the behavior is not based

on disability, OCR would likely find that the school has identified a legitimate, nondiscriminatory

reason for disciplining the student with a disability more severely.

If a school did not have a legitimate, nondiscriminatory reason for different treatment of a

student with a disability, OCR would find that the school violated Section 504.

148

If a school does

state a legitimate, nondiscriminatory reason for different treatment of a student with a disability,

OCR will investigate whether that reason was in fact the reason the school treated the student

with a disability differently, or instead a pretext, or excuse, for disability discrimination. If OCR

found that the school’s stated reason was pretext for disability discrimination, OCR would

conclude that the school violated Section 504.

Consider this hypothetical example

A middle school teacher saw two students—a student who has a mental health disability

and a student without a disability—arguing and pushing each other in the back of the

teacher’s classroom. The teacher referred the student with a disability to the principal for

discipline under the school’s code of conduct prohibiting physical fighting, which allows a

range of consequences from verbal warning to expulsion. The teacher gave the student

without a disability a verbal warning but did not refer the student without a disability to

the principal’s office for further discipline. Neither student has any disciplinary history

prior to this incident and, based on these facts, OCR would likely find the two students

similarly situated absent information being offered to the contrary. As a result, the

teacher’s decision to refer the student with a disability for discipline but not refer the

similarly situated student without a disability would likely demonstrate initial evidence of

different treatment based on disability.

During an OCR investigation, additional information is provided showing that the

teacher’s reason for referring only the student with a disability for discipline was that the

student with a disability started the fight. OCR would likely consider this explanation a

nondiscriminatory justification for treating the two students differently but would

continue the investigation to determine if the reason given was the actual reason for the

different treatment.

147

Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 339-40 (1977) (holding that, “like any other kind of

evidence, [statistical evidence] may be rebutted,” but “‘(s)tatistical analyses have served and will continue to serve

an important role’ in cases in which the existence of [intentional] discrimination is a disputed issue.”).

148

See 34 C.F.R. § 104.4(b)(1)(i)-(v), (vii).

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If OCR found evidence that the stated justification was indeed the reason for the different

treatment, OCR would likely find insufficient evidence that the school discriminated

against the student with a disability by disciplining the student more severely. On the other

hand, OCR would likely find sufficient evidence that the stated reason was not the actual

reason for the different treatment if the student without a disability told OCR they had

admitted to the teacher right away that they were the one who started the fight. OCR may

also learn that the teacher previously told a classroom aide that the teacher refers for

discipline all students with mental health disabilities who become involved in a physical

fight because the teacher assumes that people with mental health disabilities pose a

greater risk of violence to others.

149

OCR would likely find this evidence together sufficient

evidence that the stated reason for the different treatment was pretext for disability

discrimination. If OCR found discrimination, it could require the school to address the

discrimination through individual and systemic remedies as appropriate, such as deleting

all references to any discipline imposed by the principal for this incident from the student

with a disability’s educational records, mandating training for staff who make disciplinary

decisions, and changing the school’s disciplinary procedures to prevent this type of

discrimination from recurring.

Notably, in this example, there are no facts indicating the school had a duty under Section 504 to

treat the student with a disability differently to avoid discriminating against the student on the

basis of disability. For example, if the school had proposed giving both students an out-of-school

suspension of more than 10 school days, the Section 504 requirements for disciplinary removals

that would constitute a significant change in placement discussed above

150

would have been

triggered for the student with a disability, and, if the student’s behavior was based on their

disability, Section 504 would have prohibited the school from imposing the suspension on the

student on the basis of their disability. Under the facts in this example, however, the student’s

behavior was not based on their disability. Therefore, under Section 504, the school needed to

treat both students the same but failed to do so.

B. Discriminatory Effects of a School’s Disciplinary Criterion, Policy, Practice, or

Procedure

Disciplinary policies and procedures that result in unjustified discriminatory effects based on a

disability, even if unintentionally, violate Section 504.

151

Under Section 504’s regulations, schools

may not use criteria, policies, practices, or procedures that have the effect of: (1) discriminating

on the basis of disability, such as by excluding students with disabilities from participating in

149

See U.S. Dep’t of Health and Human Servs., Mental Health Myths and Facts, MENTALHEALTH.GOV (Feb. 28, 2022),

https://www.mentalhealth.gov/basics/mental-health-myths-facts

(“Fact: The vast majority of people with mental

health problems are no more likely to be violent than anyone else. Most people with mental illness are not violent

and only 3%-5% of violent acts can be attributed to individuals living with a serious mental illness.”).

150

See supra pp. 14-21.

151

34 C.F.R. § 104.4(b)(4). See Alexander v. Choate, 469 U.S. 287, 295, 299 (1985).

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school or denying them the benefits of the school’s programs and activities, or (2) defeating or

substantially impairing the school’s objectives with respect to students with disabilities.

152

Even when a school criterion, policy, practice, or procedure (referred to collectively below as the

school’s “policy”) is neutral on its face, it may still have the discriminatory effect of denying a

student with a disability meaningful access to the school’s aid, benefits, or services, or of

excluding the student based on disability. A school may impose legitimate safety requirements

necessary for the safe operation of the school’s services, programs, or activities, but the school

must ensure that its safety requirements are based on actual risks, not mere speculation,

stereotypes, or generalizations about individuals with disabilities.

153

The school must provide

FAPE to eligible students under Section 504 regardless of the nature or severity of the student’s

disability.

154

In considering whether a facially neutral discipline policy has the discriminatory effect of denying

students meaningful access to the school’s aid, benefits, or services, or of excluding them based

on disability, OCR would compare the policy’s effects on students with and without disabilities.

155

In some cases, evidence of how the policy impacts one or more specific individuals will be enough

to show that the policy’s disparate impact is based on disability. For example, OCR may receive a

complaint on behalf of several students subject to the same school, district, or Statewide policy,

and could find evidence of discriminatory effects based on those students’ experiences. The

policy’s discriminatory effect on the basis of disability may also be obvious, such as the effect of

a policy that automatically imposes an afterschool detention for any use of profanity on a student

whose Tourette’s Syndrome sometimes causes the student to curse involuntarily.

156

In other

instances, statistical evidence might suggest that students with disabilities are disproportionately

disciplined for certain conduct, leading OCR to investigate whether the school’s disciplinary

practices are resulting in a discriminatory effect on students with disabilities. While statistical

evidence alone does not prove discrimination, it can raise a question regarding whether school

districts are imposing discipline in discriminatory ways, warranting further investigation.

If OCR finds sufficient evidence that the policy has discriminatory effects based on disability and

finds that there is insufficient evidence the policy is necessary for the provision of safe operation

of services, programs, or activities, OCR would likely consider the policy to be discriminatory.

Evidence that an alternative policy exists that would be comparably effective in providing or

152

34 C.F.R. § 104.4(b)(4) (prohibiting recipients of Federal financial assistance from, directly or through

contractual or other arrangements, utilizing criteria or methods of administration that have the effect of subjecting

qualified individuals with disabilities to discrimination on the basis of disability, or that have the purpose or effect

of defeating or substantially impairing accomplishment of the objectives of the recipient’s program). Depending on

the specific facts alleged in a complaint filed with OCR about a school criterion, policy, practice, or procedure, OCR

may investigate the complaint as a violation of FAPE or a failure to make reasonable modifications.

153

See 34 C.F.R. § 104.4(a), (b)(1)(i)-(v), (vii), (b)(4). OCR notes that the Department of Justice interprets

requirements under Section 504 consistently with those under Title II of the Americans with Disabilities Act. See 28

C.F.R. § 35.130(h) (Title II legitimate safety regulation).

154

34 C.F.R. § 104.33(a).

155

See 34 C.F.R. § 104.4(b)(4). See Choate, 469 U.S. at 291-92, 299-301.

156

As discussed in Section II of this guidance, a recipient that knows that a student is engaging in disability-based

behavior that interferes with their or other students’ learning is required under Section 504 to address the

behavior to meet the educational needs of the student with disability-based behavior.

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safely operating the school’s services, programs, or activities may indicate that the school’s

chosen policy is not necessary. The school would then need to reasonably modify the policy to

avoid discrimination on the basis of disability.

157

As explained in Section III, this could include

adjusting the terms of the policy for a student with a disability even if the general policy remains

in place. If no such change is capable of eliminating the discriminatory effect of the policy, the

school may need to revise or eliminate the policy in its entirety.

V. MULTIPLE BASES OF DISCRIMINATION AND INTERSECTIONAL DISCRIMINATION

As noted earlier, OCR is responsible for enforcing several laws that prohibit schools from

discriminating based on disability; race, color, or national origin; sex; and age.

158

A student may

experience multiple forms of discrimination at once. In addition, a student may experience

discrimination due to the combination of protected characteristics, a form of discrimination often

called intersectional discrimination. Some instances of intersectional discrimination may stem

from a decisionmaker acting upon stereotypes that are specific to a subgroup of individuals, such

as stereotypes specific to Black girls that may not necessarily apply to all Black students or all

girls. When OCR receives a complaint alleging discrimination in the use of discipline under more

than one law, OCR has the authority to investigate and, where appropriate, find a violation under

any law in its jurisdiction.

VI. CONCLUSION

OCR is committed to ensuring that students are not subjected to discrimination based on their

disabilities and to enforcing the FAPE rights of students with disability-based behavior and

prohibitions against the discriminatory use of student discipline. In addition to providing the

information shared in this guidance, OCR can provide technical assistance to schools, districts,

States, and other recipients in understanding and fulfilling their responsibilities under Section

504. OCR is also available to answer questions from students, parents or guardians, community-

based organizations, and other stakeholders who are interested in learning more about the rights

of students with disabilities and their families under Section 504.

If you have questions about the information in this guidance or would like technical assistance,

we encourage you to contact OCR at [email protected] or by calling 800-421-3481 (TDD: 800-877-

8339). You can also learn more by visiting www.ed.gov/ocr and by following OCR's blog to stay

up to date on OCR’s latest resources.

Thank you for your commitment to improving public education by supporting the needs of

students with disability-based behavior and eliminating disability discrimination in the use of

student discipline.

157

See 34 C.F.R. § 104.4; see 28 C.F.R. § 35.130(b)(7).

158

See supra note 8 and note 11.

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APPENDIX: GLOSSARY OF KEY TERMS AND ACRONYMS USED IN THIS GUIDANCE

Behavioral Intervention Plan (BIP)—an individualized plan, often in writing, usually based on

information provided through a functional behavioral assessment (FBA), that identifies

behavioral supports individually tailored to a student’s needs to ensure FAPE. See 34 C.F.R. §

104.33(b)(1)(i). This may also be called a Behavior Support Plan. Although not referenced in

Section 504’s regulations, this term is generally understood to mean a component of a student’s

educational program designed to address behaviors that interfere with the student’s learning or

that of others and behaviors that are inconsistent with school expectations. A BIP generally

describes the behavior that inhibits the student from accessing learning and the positive

behavioral interventions and other strategies that are to be implemented to reinforce positive

behaviors and prevent behavior that interferes with the student’s learning and that of others.

Behavioral Supports—the supports, services, interventions, strategies, and modifications to

policies used to support and respond to a student’s behavioral needs to ensure FAPE. See 34

C.F.R. § 104.33(b)(1)(i). Behavioral supports may be provided through a positive behavioral

interventions and supports (PBIS) framework. To learn more about PBIS, please visit

https://www.pbis.org/.

Corporal Punishment—paddling, spanking, or other forms of physical punishment imposed on a

child.

In a majority of States, this practice is prohibited by State law.

Disability-Based Behavior—behavior that is caused by or has a direct and substantial relationship

to a student’s disability.

Educational Environment (also educational setting)—(1) the academic setting (meaning the

class, school, or program) in which a student with a disability receives regular or special education

and related aids and services, decided as part of the student’s placement; and (2) the setting in

which schools provide students nonacademic and extracurricular services and activities, such as

meals, recess, counseling services, physical recreational athletics, and transportation. See 34

C.F.R. § 104.34.

Exclusionary Discipline—the formal or informal removal, whether on a short-term or long-term

basis, of a student from a class, school, or other educational program or activity for violating a

school rule or code of conduct. Examples can include detentions, in-school suspensions, out-of-

school suspensions, suspensions from riding the school bus, expulsions, disciplinary transfers to

alternative schools, and referrals to law enforcement, including referrals that result in school-

related arrests. An in-school suspension is an instance in which a child is temporarily removed

from his or her regular classroom(s) for at least half a day for disciplinary purposes, but remains

Except where terms in this Glossary are directly from a statute or regulation that OCR enforces, or OCR’s CRDC

definitions, the terms and acronyms below are offered to assist the reader only for purposes of clarity in this

guidance, the terms are not intended to apply more broadly and are not binding in any way.

This definition is used in the 2020-2021 CRDC. The CRDC collects data on leading civil rights indicators related to

access and barriers to educational opportunity from preschool through 12th grade.

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under the direct supervision of school personnel. Direct supervision means school personnel are

physically in the same location as students under their supervision.

Free Appropriate Public Education (FAPE)—the provision of regular or special education and

related aids and services that are designed to meet the individual educational needs of a student

with a disability as adequately as the needs of students without disabilities are met, and that

complies with Section 504’s requirements pertaining to evaluation, placement, setting, and

procedural safeguards. See 34 C.F.R. § 104.33(b)(1). Another Federal law, the Individuals with

Disabilities Education Act (IDEA), also requires FAPE. See 34 C.F.R. §§ 300.17, 300.101, 300.102

(defining FAPE under the IDEA). Although FAPE under the IDEA is distinct from FAPE under Section

504, implementation of an Individualized Education Program (IEP) developed in accordance with

the IDEA is one way to meet Section 504’s FAPE standards. See 34 C.F.R. § 104.33(b)(2). This

would include implementation of IDEA’s discipline provisions. To learn more about FAPE under

the IDEA, please visit http://idea.ed.gov/. To learn more about the IDEA requirements applicable

to discipline, please consult OSERS’s Questions and Answers: Addressing the Needs of Children

with Disabilities and IDEA’s Discipline Provisions (July 19, 2022), available at

https://sites.ed.gov/idea/files/qa-addressing-the-needs-of-children-with-disabilities-and-idea-

discipline-provisions.pdf.

Functional Behavioral Assessment (FBA)— assessment used to understand the function and

purpose of a child’s specific, interfering behavior and factors that contribute to the behavior’s

occurrence and non-occurrence for the purpose of developing effective positive behavioral

interventions, supports, and other strategies to mitigate or eliminate the interfering behavior.

Individualized Education Program (IEP)—consistent with the requirements in the IDEA

regulations at 34 C.F.R. § 300.22, a written statement for a child with a disability that is

developed, reviewed, and revised in accordance with the IDEA’s requirements for FAPE.

Manifestation Determination—under Section 504, an evaluation is required by 34 C.F.R. §

104.35(a), prior to a significant change in placement due to a disciplinary removal, to determine

whether a student’s behavior was caused by, or had a direct and substantial relationship to, the

student’s disability. See also 34 C.F.R. § 104.35(c) (explaining requirements for evaluations). For

purposes of this document, this type of evaluation is referred to as a “manifestation

determination.” Additionally, the manifestation determination includes consideration of

whether the school failed to implement the student’s Section 504 plan by failing to provide the

behavioral supports necessary to address the student’s disability-based behavioral needs and, as

a result, denied the student FAPE. See 34 C.F.R. § 104.33(b)(1)(i). Under such circumstances,

where the school’s failure to meet the student’s behavioral needs denied FAPE to the student, a

disciplinary removal would add to the denial of FAPE.

Mechanical Restraint

—the use of any device or equipment to restrict a student’s freedom of

movement. The term does not include devices implemented by trained school personnel, or

This definition is used in the 2020-2021 CRDC.

This definition is used in the 2020-2021 CRDC. On December 13, 2021, the Department proposed a revised

definition for mechanical restraint. For the most current information on how OCR defines this term, please visit

https://www2.ed.gov/about/offices/list/ocr/data.html

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utilized by a student that have been prescribed by an appropriate medical or related services

professional and are used for the specific and approved purposes for which such devices were

designed, such as:

• Adaptive devices or mechanical supports used to achieve proper body position, balance,

or alignment to allow greater freedom of mobility than would be possible without the use

of such devices or mechanical supports;

• Vehicle safety restraints when used as intended during the transport of a student in a

moving vehicle;

• Restraints for medical immobilization; or

• Orthopedically prescribed devices that permit a student to participate in activities

without risk of harm.

Person with a Disability—someone who: (1) has a physical or mental impairment that

substantially limits one or more major life activities; (2) has a record of such an impairment; or

(3) is regarded as having such an impairment. See 29 U.S.C. § 705(20)(B) (Section 504 definitions);

34 C.F.R. § 104.3(j). A qualified student with a disability means a student who is a person with a

disability and who is any of the following: (1) at an age at which students without disabilities are

provided elementary and secondary educational services; (2) at an age at which State law

requires schools to provide elementary and secondary educational services to students with

disabilities; or (3) a child entitled to FAPE under the IDEA. See 34 C.F.R. § 104.3(l)(2).

Physical Restraint

—a personal restriction that immobilizes or reduces the ability of a student to

move his or her torso, arms, legs, or head freely. The term physical restraint does not include a

physical escort. Physical escort means a temporary touching or holding of the hand, wrist, arm,

shoulder or back for the purpose of inducing a student who is acting out to walk to a safe location.

Placement—the regular and/or special education program in which a qualified student with a

disability receives FAPE, meaning the educational instruction, services, supports, interventions,

and modifications to policies that students receive to meet their individualized needs. To learn

more about Section 504’s requirements for placement, see 34 C.F.R. §§ 104.34, 104.35.

Program or Activity—all of the operations of the entities described in 29 U.S.C. § 794(b) and 34

C.F.R. § 104.3(k), including all the operations of a local educational agency (LEA).

Recipient—any State or its political subdivision, any instrumentality of a State or its political

subdivision, any public or private agency, institution, organization, or other entity, or any person

to which Federal financial assistance is extended directly or through another recipient, including

any successor, assignee, or transferee of a recipient, but excluding the ultimate beneficiary of the

assistance. 34 C.F.R. § 104.3(f). Recipient includes an elementary and secondary public school

(including public charter schools), private school, local educational agency, or State educational

agency that receives Federal financial assistance from the Department of Education.

This definition is used in the 2020-2021 CRDC. On December 13, 2021, the Department proposed a revised

definition for physical restraint. For the most current information on how OCR defines this term, please visit

https://www2.ed.gov/about/offices/list/ocr/data.html

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Related Aids and Services—the developmental, corrective, and other supportive aids and

services that a student needs in order to receive FAPE. See 34 C.F.R. pt. 104, App. A, ¶ 23.

Restraint—as used in this guidance, the term restraint(s) refers to physical, mechanical, or other

restraint(s).

Seclusion

—the involuntary confinement of a student alone in a room or area from which the

student is physically prevented from leaving. It does not include a timeout, which is a behavior

management technique that is part of an approved program, involves the monitored separation

of the student in a non-locked setting, and is implemented for the purpose of calming.

Section 504-only Student—a student with a disability, as defined under Section 504, who is not

eligible for FAPE under the IDEA.

Section 504 Plan—an individualized plan, often in writing, that a school may choose to use to

record the regular or special education and related aids and services that a specific student with

a disability covered under Section 504 will receive, and the appropriate setting for that student

to receive the services.

Section 504 Team—the group of persons who must be knowledgeable about the child, the

meaning of evaluation data, and the placement options as required by 34 C.F.R. § 104.35(c), that

determines for a qualified student with a disability the individualized services the student needs

to receive FAPE and the setting to receive those services. The Section 504 Team often includes

the student’s parents or guardians, among others knowledgeable about the student.

Significant Change in Placement—In the context of disciplinary removal(s), (1) a removal from

class or school that lasts longer than 10 consecutive school days, or (2) a series of removals from

class or school that together total more than 10 school days in a school year and constitute a

pattern of removal. Additionally, a disciplinary transfer to an alternative school could constitute

a significant change in placement depending on the facts and circumstances.

Supplementary Aids and Services—those aids and services that enable a student with a disability

to participate in the regular education program to the maximum extent appropriate to the

student’s needs.

This definition is used in the 2020-2021 CRDC. On December 13, 2021, the Department proposed a revised

definition for seclusion. For the most current information on how OCR defines this term, please visit

https://www2.ed.gov/about/offices/list/ocr/data.html