Potential Alteration
of Section 615, Due Process Protections, of IDEA from Bush
Education Bill that is passing
This
is from the Library of Congress' s THOMAS site, tracking the
Senate version of the Bush Education Bill as passed late Thursday.
Both Senate and House versions go to conference for reconciliation.
Remember, the Senate vote was 91-8. That all but guarantees
that this language will remain virtually intact in the legislation's
final form as an enrolled bill sent to the President.
******
TITLE __--INDIVIDUALS WITH DISABILITIES
SEC. __01. DISCIPLINE.
Section 615 of the Individuals with Disabilities Education
Act (20 U.S.C. 1415) is amended by adding at the end the following:
``(n) DISCIPLINE BY LOCAL AUTHORITY WITH RESPECT TO WEAPONS,
DRUGS, AND TEACHER ASSAULTS.--
``(1) IN GENERAL.--Notwithstanding any other provision of
this title, school personnel may discipline (including expel
or suspend) a child with a disability in the same manner in
which the personnel may discipline a child without a disability
if the child with a disability--
``(A) carries or possesses a weapon to or at a school, on
school premises, or to or at a school function under the jurisdiction
of a State or a local educational agency;
``(B) threatens to carry, possess, or use a weapon, (including
a threat to kill another person) to or at a school, on school
premises, or to or at a school function under the jurisdiction
of a State or a local education agency;
``(C) possesses or uses illegal drugs or sells or solicits
the sale of a controlled substance while at school, on school
premises, or at a school function under the jurisdiction of
a State or local educational agency; or
``(D) assaults or threatens to assault a teacher, teacher's
aide, principal, school counselor, or other school personnel,
including independent contractors and volunteers.
``(2) INDIVIDUAL DETERMINATIONS.--In carrying out any disciplinary
action described in paragraph (1), school personnel have discretion
to consider all germane factors in each individual case and
modify any disciplinary action on a case-by-case basis.
``(3) DEFENSE.--Nothing in paragraph (1) precludes a child
with a disability who is disciplined under paragraph (1) from
asserting a defense that the alleged act was unintentional
or innocent.
``(4) LIMITATION.--
``(A) IN GENERAL.--A child with a disability who is removed
from his or
her regular educational placement under paragraph (1) shall
receive a free appropriate public education in an alternative
educational setting if the behavior that led to his or her
removal is a manifestation of his or her disability, as determined
under subparagraphs (B) and (C) of subsection (k)(4).
``(B) MANIFESTATION DETERMINATION.--The manifestation
determination shall be made immediately, if possible, but
in no case later than 10 school days after school personnel
decide to remove the child with a disability from his or her
regular educational placement.
``(C) DETERMINATION THAT BEHAVIOR WAS NOT MANIFESTATION OF
DISABILITY.--If he result of the manifestation review is a
determination that the behavior of the child with a disability
was not a manifestation of the child's disability, appropriate
school personnel may apply to the child the same relevant
disciplinary procedures that would apply to children without
a disability.
``(D) RECORDS FOR DECISION.--If the agency initiates disciplinary
procedures applicable to all children, the agency shall ensure
that the special education and disciplinary records of the
child with a disability are transmitted for consideration
by the person making the final decision regarding the disciplinary
action.
``(E) REVIEW OF MANIFESTATION DETERMINATION.--If the parents
or the local educational agency disagree with the manifestation
determination, the agency or the parents may request a review
of that determination through the procedures in subsections
(f) through (i).
``(F) PLACEMENT DURING REVIEW.--During the course of any review
proceedings under subparagraph (E), the child shall receive
a free appropriate public education in an alternative education
placement.
``(5) DEFINITIONS.--In this subsection:
``(A) WEAPON.--The term `weapon' means a weapon, device, instrument,
material, or substance, animate or inanimate, that is used
for, or is readily capable of, causing death or serious bodily
injury.
``(B) ILLEGAL DRUG, CONTROLLED SUBSTANCE, AND ASSAULT.--The
terms `illegal drug', `controlled substance', `assault', `unintentional',
and `innocent' have the meanings given such terms under State
law.''.
``(C) REVIEW OF MANIFESTATION DETERMINATION.--If the parents
or the local educational agency disagree with the manifestation
determination, they may request a review of that determination
through the procedures in subsections (f) through (i).
``(D) PLACEMENT DURING REVIEW.--During the course of any review
proceedings under subparagraph (E), the child shall receive
a free appropriate public education in an alternative education
placement.''.
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