Section 504 Discipline Questions and Answers

Question 1: Does the 45-day rule still apply to Section 504 students bringing weapons to school?

While originally an Amendment to the IDEA, the Jeffords Amendment (which allowed a school to change the placement of a disabled child for up to 45 days when the child brings a gun to school even if the behavior is related to disability) was applied by OCR to the Section 504 child. As a result, for 504 students who brought guns to school (or who possessed guns at school) a 45-day change of placement could occur, even if the behavior was related to the child’s disability. Response to Zirkel , 22 IDELR 667 (OCR 1995).

The reauthorization of IDEA in 1997, and again in 2004 nullified the Jeffords Amendment (as the statute to which the amendment was made has now been replaced). In its place is a 45-day rule applying to drugs and other weapons that is much broader than Jeffords, but which applies only to IDEA students. Until OCR determines that the 45-day rule also applies to Section 504 student (and we believe it eventually will make that determination), schools should not assume that the new 45-day drugs and weapons rule applies to Section 504 only students.

Question 2: Isn’t it true that disruption of the regular classroom by the 504 child is a factor in determining the appropriateness of the regular class?

Yes. the Appendix to the regulations makes clear that the 504 child’s impact on the regular classroom is a factor. “[I]t should be stressed that, where a handicapped student is so disruptive in a regular classroom that the education of other students is significantly impaired, the needs of the handicapped child cannot be met in that environment. Therefore, regular placement would not be appropriate to his or her needs and would not be required by Section 104.34 .” Appendix A, p. 429. Note, however, that if supplementary aids and services have not been tried, or a behavior management plan is not in place, disruption by the student does not mean that he cannot be educated in the regular classroom. His disruption may mean that the District needs to modify appropriately, and then make the determination.

An additional complicating factor is that since 504 is an unfunded mandate, there may not be another placement for the child. Content mastery and resource classes or more restrictive settings funded with IDEA-B dollars are not accessible for the 504 child. Thus, while behavior may suggest that a more restrictive setting is necessary, the district may have no appropriate setting, outside of the classroom, for the child.