Forgotten Children: Rethinking the Individuals with Disabilites Education Act Behavior Provisions

63 Pages Posted: 20 Apr 2019

See all articles by Margaret Dalton

Margaret Dalton

University of San Diego School of Law

Date Written: 2019

Abstract

Research consistently demonstrates that males – beginning when they are just young boys – externalize oppositional behavior to a markedly higher degree than females. In a school setting, this typically translates to male students being disciplined for even marginally unacceptable behavior more frequently, including frequent loss of educational days due to out-of-school suspensions. Yet it is likely that many of these same male students have identified disabilities under the federal Individuals with Disabilities Education Act (IDEA), with Individualized Education Programs that can be personalized with sound, peer-reviewed behavioral services that can make a real difference.

Behavior – and its impact on educational outcomes and eventually society – remains the forgotten child in efforts to meet the needs of these most emotionally vulnerable students. A lack of specifics in the behavior provisions of IDEA create an unhealthy tension, too limited either to serve our students or to inform educational practice. While states could remedy this problem, most do not. In an era when the federal government is moving to deregulate many industries – education among them – it is critical for state legislatures to clarify and expand their own requirements.

This paper examines current law and proposes constructive change to deal with inequities for students with behavior challenges. Part I examines the IDEA provisions. Part II of this paper reviews the behavior provisions in IDEA. Part III focuses on state statutes and rules, identifying which states have taken the lead and including a determination of where the fifty states and the District of Columbia fall. Part IV analyzes similarities and differences in appellate court decisions of the eleven federal circuits from 2011 through 2016, when a major issue included a factual or legal determination of the Functional Behavioral Assessment (FBA) and Behavior Intervention Program (BIP) requirements. Finally, Part V, Rethinking IDEA, summarizes the impact on these forgotten children of IDEA, and recommends an approach for a model provision for Congress to adopt when IDEA is reauthorized.

Keywords: Individuals with Disabilities Education Act, IDEA, Hughes Bill, Honing v. Doe, Park Hill School District v. Dass

JEL Classification: I120, I121

Suggested Citation

Dalton, Margaret, Forgotten Children: Rethinking the Individuals with Disabilites Education Act Behavior Provisions (2019). San Diego Legal Studies Paper No. 19-383. Available at SSRN: https://ssrn.com/abstract=3374014 or http://dx.doi.org/10.2139/ssrn.3374014

Margaret Dalton (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

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