ISSUE BRIEF FOR LEGAL ADVOCATES

Behavior as an Education Issue Under the Individuals with Disabilities Education Act

Prepared by Eileen Ordover

Center for Law and Education

August 1999

Introduction

The Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §1400 et seq., entitles all children with disabilities to a free appropriate public education ("FAPE") consisting of an appropriate elementary or secondary education that meets state standards, along with necessary special education and related services in the least restrictive environment consistent with their individual needs. ⁽¹⁾ For students whose disabilities involve behavioral manifestations, this right includes the right to the educational and related services necessary to effectively address the behavior and the problems underlying it.

In fact, securing appropriate education and services for children whose disabilities involve behavioral manifestations was a key reason for enactment of IDEA. When considering Public Law 94-142, the law that later become known as IDEA, Congress had before it statistics showing that 82% of those children classified as emotionally disturbed were unserved, and that many of those who were served were receiving inappropriate services. ⁽²⁾ At hearings concerning the proposed law, many people spoke of the lack of educational services that prevented students with behavioral manifestations from participating in and benefitting from special education programs. These services included specialized diagnostic evaluations, individualized tutoring, behavioral support programs, psychological counseling, and self-help and self-care skills training programs. ⁽³⁾ Thus, an important part of the history of IDEA is the recognition that for children with behavioral manifestations, access to school is meaningless if not accompanied by a right to programming that takes into account behavioral needs.

The Right to Effective Behavior Services and Supports as a Component of FAPE: The Broad Meaning of Education Under IDEA

Despite this history, many schools fail to address appropriately the behavioral consequences of disability. Some ignore this duty altogether. Others provide what they call behavioral programming, but in reality focus their efforts exclusively on controlling the child in school. Rather than addressing behavior and its roots as part and parcel of the child's educational and developmental needs, behavior is viewed narrowly as something to be "managed" or "controlled" so as not to disrupt classroom activities. Behavioral needs are thus, treated as "add ons" to education -- often in the form of "behavior management plans" -- rather than as educational needs in their own right, to be addressed by specially designed instruction and support services. Similarly, behavioral manifestations are often viewed as relevant areas of educational concern (apart from discipline) only to the extent that they prevent a child from making sufficient academic progress, or deriving sufficient "benefit" from the education already being provided.

These approaches violate the duty to provide FAPE. IDEA embraces the broad understanding of education reflected in the hearings discussed above. The broad concept of education under IDEA encompasses, among other things, a child's unique social and emotional needs as well as his or her academic ones. ⁽⁴⁾ For children whose disabilities entail behavioral consequences, FAPE thus requires "special education"-- defined by law as "specially designed instruction...to meet the unique needs of a child with a disability...." ⁽⁵⁾ -- aimed at behavioral issues, as well as any necessary behaviorally-related "related services."

The duty to address behavior as a component of FAPE extends to behavior exhibited outside, as well as inside, of school. Consistent with the broad notion of education encompassed by the statute, the purpose of addressing non-academic needs such as behavior under IDEA is to enable children with disabilities to function effectively in all settings, not simply in school. Thus in one case, a court held that the school system's proposed placement did not provide a free appropriate public education, because although the child did relatively well in the familiar and contained school environment of the school, in less familiar settings, or where relatively unsupervised, he had significant problems with self-control in his interactions with others. ⁽⁶⁾ Similarly, in another case, a court rejected as insufficient and a denial of FAPE a school's attempt at behavior management, noting that to the extent that the child at times behaved appropriately in class, "it is only because a teacher or other adult is literally standing over him," and that "[c]learly such a dependency building approach does nothing and in fact may make it more difficult to enable Cory to behave in a regular classroom or in the real world." ⁽⁷⁾

The IDEA Amendments of 1997 underscore one aspect of schools' duty to address behavior. As amended by the 1997 legislation, the Act provides that as a "special factor," "in the case of a child whose behavior impedes his or her learning or that of others," the IEP team shall "consider, when appropriate, strategies, including positive behavioral interventions, strategies, and supports to address that behavior." ⁽⁸⁾ This provision makes explicit in the statute the long-standing IDEA requirement, derived from the statutory definitions of "FAPE," "special education," and "related services," that schools provide the behavioral supports necessary to sustain in-school learning. It in no way limits or diminishes other aspects of the duty to address behavior (including those discussed above) similarly derived from these definitions.

The Right to Effective Behavior Services and Supports as a Component of the Right to Be Educated in Regular Education Classes to the Maximum Extent Appropriate

IDEA's mandate that all children receive their education in the least restrictive environment (LRE) ⁽⁹⁾ is a second, independent source of schools' legal duty to address behavior. As is the case with the duty arising under the FAPE requirement, the LRE-based duty to address behavior has two aspects: the provision of services necessary to alleviate barriers to (regular education) classroom learning, and the provision of services that recognize behavioral issues as a subject of education in their own right. Failure to provide either one may violate LRE rights.

IDEA's LRE provisions require states and school systems to ensure that children with disabilities receive their education in regular education settings alongside non-disabled peers to the maximum extent appropriate in light of their individual needs. Exclusion from regular education settings is allowed only when a child's education there cannot be "achieved satisfactorily"even with the use of supplementary aids and services. ⁽¹⁰⁾ Most courts that have considered the issue have ruled that, in determining whether a child's education can be "achieved satisfactorily" in the regular education classroom, schools may take into account the extent to which a child's behavior would be disruptive there. ⁽¹¹⁾ At the same time, however, courts have recognized that the failure to provide appropriate behavioral supports, interventions and services within the regular education classroom may cause the objected-to "disruption," thereby setting a child up for failure and/or creating the alleged justification for exclusion. ⁽¹²⁾ Such failure by schools violates LRE rights. ⁽¹³⁾ As an integral part of the IEP development process, schools must consider the whole range of behaviorally oriented services that might make regular classroom placement work. ⁽¹⁴⁾

Failure to address behavioral manifestations with appropriate services may also violate the LRE rights of children properly placed, for the time being, in separate, more restrictive settings. Just as the right to FAPE encompasses the right to services that will allow a child to function effectively in all settings, not merely in school, the right to be educated in the LRE encompasses the right to services that will allow a child to move into less restrictive educational settings. Where children are denied the behaviorally oriented services they need in order to reach the point where their education can be achieved satisfactorily in regular education classes, this aspect of LRE rights is violated. ⁽¹⁵⁾

The Right to Learn in the General Curriculum

The right to education in regular education settings embraces the right to effective opportunities to learn the regular curriculum as well as physical presence in the regular classroom. ⁽¹⁶⁾ Furthermore, numerous provisions of IDEA emphasize the right of children with disabilities to full opportunity for equal participation and meaningful learning in the regular, or "general" curriculum. ⁽¹⁷⁾ When behavioral manifestations effect a child's ability to learn and progress in the general curriculum, schools must provide appropriate services to address them, and to allow the opportunities for equal participation and meaningful participation that IDEA requires. All too frequently, however, children's behavioral needs are not appropriately addressed, and they are consequently, and unlawfully, placed in separate settings that offer an inferior, diluted curriculum. Parents and advocates should be alert to these issues, and work to ensure that behavioral issues do not result in either inappropriate exclusion from the regular classroom or exclusion from the regular, or general, curriculum. ⁽¹⁸⁾

State of the Art Practices
IDEA expressly requires states to acquire and disseminate significant knowledge derived from educational research and other sources to teachers, administrators, school board members, and related services personnel, and to adopt, when appropriate, promising practices, materials, and technology. ⁽¹⁹⁾ Local school districts must do the same. ⁽²⁰⁾ As one court has explained,

"[t]he law explicitly recognizes...that educational methodologies are not static, but are constantly evolving and improving. It is the school district's responsibility to avail itself of these new approaches in providing an education program geared to each child's individual needs." ⁽²¹⁾

Enforcement of these obligations may play a critical role in moving schools to abandon outmoded, limited and ineffective practices that focus on control and punishment, in favor of approaches that do in fact provide a free appropriate public education in the least restrictive environment.

1. 20 U.S.C. §§1401(8), 1412(a)(5).

2. H.R. Rep. No. 332, 94^th Cong., 1^st Sess., at n.12 (1975); S. Rep. No. 168, 94^th Cong., 1^st. Sess., at 5-8 (1975), reprinted in 1976 U.S.C.C.A.N. 1425.

3. Education for All Handicapped Children Act, 1973-74: Hearings on S.6 Before the Subcommittee on the Handicapped of the Senate Committee on Labor and Public Welfare, 93d Cong., 1st Sess. (1973-74) at 45, 87, 797, 809, 813, 790, 833.

4. County of San Diego v. California Special Education Hearing Office, 93 F.3d 1458 (9^th Cir. 1996) ("educational benefit is not limited to academic needs, but includes the social and emotional needs that affect academic progress, school behavior, and socialization"); Seattle School District No. 1 v. B.S., 82 F.3d 1493, 1500 (9th Cir. 1996) ("[e]veryone agrees that A.S. is exceptionally bright and thus able to test appropriately on standardized tests. This is not the sine qua non of `educational benefit,' however. The term 'unique educational needs' [shall] be broadly construed to include...academic, social, health, emotional, communicative, physical and vocational needs"); see also, e.g., Babb v. Knox County School System, 965 F.2d 104, 109 (6th Cir. 1992), cert. denied, 113 S.Ct. 380 (education under IDEA encompasses "both academic instruction and a broad range of associated services traditionally grouped under the general rubric of `treatment'"). For examples of other cases stressing the broad meaning of education under IDEA, see Timothy W. v. Rochester School District, 875 F.2d 954, 962 (1st Cir. 1989), cert. denied, 493 U.S. 983 ("the Act's concept of special education is broad, encompassing not only traditional cognitive skills, but basic functional skills as well"); Kruelle v. New Castle County School District, 642 F.2d 687, 693-94 (3rd Cir. 1981) ("the concept of education is necessarily broad...[w]here basic self-help...skills...are lacking, formal education begins at that point"); Battle v. Commonwealth of Pennsylvania, 629 F.2d 269, 275 (3rd Cir. 1980), cert. denied, 452 U.S. 968 (1981) (same). Cf. Stacey G. v. Pasadena Independent School District, 547 F. Supp. 61, 77 (S.D. Tex. 1982) ("...an essential element of an appropriate education for a child as handicapped as Stacey is an opportunity to develop skills that would allow Stacey to be as self-sufficient as possible and to function outside of an institution").

5. 20 U.S.C. §1401(25).

6. David D. v. Dartmouth School Committee, 775 F.2d 411, 423 (1st Cir. 1985), cert. denied, 475 U.S. 1140, 106 S.Ct. 1790 (1986).

7. Chris D. and Cory M. v. Montgomery County Bd. of Ed, 753 F. Supp. 922 , 933 (M.D. Ala. 1990).

8. 20 U.S.C. §1414(d)(3)(B). See also 20 U.S.C. §1415(k)(1)(B) (requiring functional behavior assessment and implementation/revision of behavioral intervention plan after disciplinary actions); 20 U.S.C. §1415(k)(3) (requiring that the "interim alternative educational setting" into which children may be placed following certain incidents involving dangerous weapons or drugs, or upon a finding by a hearing officer that maintaining a child in his or her current placement is substantially likely to result in injury to the child or others, include services to address the behavior that triggered the placement change).

9. See 20 U.S.C. §1412(a)(5).

10. 20 U.S.C. §1412(a)(5)(A). The U.S. Department of Education regulations implementing Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794, contain the same requirement. See 34 C.F.R. §104.34(a). See also 28 C.F.R. §35.130(d) (implementing Title II of the Americans with Disabilities Act, 42 U.S.C. §12132 et seq.) (public entities "shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities"); 28 C.F.R. §35.130(b)(2) ("[a] public entity may not deny a qualified individual with a disability the opportunity to participate in services, programs, or activities that are not separate or different, despite the existence of permissibly separate or different programs or activities").

11. Hartmann v. Loudon Co. Bd. of Ed., 118 F.3d 996 (4th Cir. 1997), cert. denied, 522 U.S. 1046, 118 S.Ct. 688 (1998); Bd. of Ed. Sacramento City Unified School District v. Holland, 14 F.3d 1398 (9th Cir. 1994), affirming 786 F. Supp. 874 (E.D. Cal. 1992), cert. denied, 512 U.S. 1207, 114 S.Ct. 2679 (1994); Oberti v. Bd. of Ed. of Borough of Clementon School District, 995 F.2d 1204 (3rd Cir. 1993); Daniel R.R. v. State Bd. of Ed., 874 F.2d 1036 (5th Cir. 1989).

12. Oberti, supra; Mavis v. Sobol, 839 F. Supp. 968 (N.D.N.Y. 1994). Cf. Morgan v. Chris L., 25 IDELR 227, 230 (6th Cir. 1997), cert. denied, 520 U.S. 1271, 117 S.Ct. 2448 ("[w]hen school systems fail to accommodate a disabled student's behavioral problems, these problems may be attributed to the school system's failure to comply with the requirements of the IDEA"); Stuart v. Nappi, 443 F. Supp. 1235, 1241 (D. Conn. 1978) (school's "handling of the plaintiff may have contributed to her disruptive behavior"); Howard S. v. Friendswood School District, 454 F. Supp. 634, 640 (S.D. Tex. 1978)(finding that plaintiff, whom school officials sought to expel following a suicide attempt and hospitalization, "was not afforded a free, appropriate public education during the period from the time he enrolled in high school until December of 1976, [which] was...a contributing and proximate cause of his emotional difficulties and emotional disturbance"); Frederick L. v. Thomas, 408 F. Supp. 832, 835 (E.D. Penn. 1976) (recognizing that an inappropriate educational placement can cause antisocial behavior).

13. Oberti, supra; Mavis, supra.

14. Oberti, supra, 995 F.2d at 1216 ("the school must consider the whole range of supplementary aids and services, including...special education training for the regular teacher, behavior modification programs, or any other available aids or services appropriate to the child's particular disabilities"); Greer, supra, 950 F.2d at 696 ("prior to and during the development of the IEP" a school "must consider...the whole range of supplemental aids and services...for which it is obligated under [IDEA] and the regulations promulgated thereunder to make provision"). See also 20 U.S.C. §§1414(d)(3)(B)(i) (IEP must consider appropriate behavioral strategies and supports); 1415(k)(1)(B) (regarding functional behavior assessments and reviews for children subjected to disciplinary measures).

15. Chris D. and Cory M., supra.

16. See Rowley, supra, 458 U.S. at 202-03 ("[w]hen that `mainstreaming' preference...has been met and a child is being educated in the regular classrooms of a public school system...the system itself monitors the educational progress of the child. Regular examinations are administered, grades are awarded, and yearly advancements to higher grade levels are permitted for those children who attain an adequate knowledge of the course material. The grading and advancement system thus constitutes an important factor in determining educational benefit."). See also Judith E. Huemann and Thomas Hehir, U.S. Department of Education/Office of Special Education Programs, Memorandum 95-5, November 23, 1994, reprinted at 21 IDELR 1152 (individualized determination must be made for each child as to "the extent that the student will be able to participate in regular education programs").

17. See, e.g., 20 U.S.C. §§20 U.S.C. §1414(b)(2)(A), (c)(1)(iv) (evaluations); 1414(d)(1)(A), (d)(4) (individualized education program ["IEP"] content, review); 1414(d)(1)(B) (IEP team composition); 1412(16) (state performance goals and objectives); 1412(16) (participation in state- and district-wide assessment); 1412(16), (17) (state accountability and reporting).

18. Although beyond the scope of this Issue Brief, the regulations implementing Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794, also require a free appropriate public education and equal opportunity for meaningful participation and effective learning in the general curriculum. See 34 C.F.R. §104.33(a) (regarding free appropriate public education); 34 C.F.R. §104.4(b)(regarding comparable benefits and services). For purposes of §504, a "free appropriate public education" includes regular or special education and related aids and services. Thus a child with a disability that involves behavioral manifestations may be entitled under §504 to related aids and services to address behavior needs even if he or she does not need (or is not eligible for) special education. This would be the case regardless of whether the those needs were connected to effective participation in the general curriculum, or to some other educational need.

19. 20 U.S.C. §1412(a)(14), incorporating by reference 20 U.S.C. §1453(c)(3)(D)(vii). See also 34 C.F.R. §300.382(g) as added/amended by 64 Fed. Reg. 12406, 12444 (March 12, 1999).

20. 20 U.S.C. §1413(a)(3)(A) (local educational agencies must ensure that all personnel necessary to carry out this part are appropriately and adequately prepared, consistent with the requirements of section 1453(c)(3)(D)).

21. Timothy W., supra, 875 F.2d at 973. See also 875 F. 2d at 966-967, discussing the history of amendments to IDEA, noting the "thesis present in the original Act, that it is the state's responsibility to experiment, refine, and improve upon the educational services it provides," and observing that "Congress clearly saw education for the handicapped as a dynamic process, in which new methodologies would be continually perfected, tried, and either adopted or discarded, so that the state's educational response to each handicapped child's particular needs could be better met."