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Expert Q&A

Can the school system have a policy which denies IEPs to students who have behavioral rather than academic problems?

What is the legality/appropriateness of placing a child with a 504 plan, based on behavioral issues, into a self-contained special education classroom for students with emotional/behavioral struggles? My school district believes that if a student has behavioral problems, but does not have any intellectual deficits/discrepancies, they do not qualify for an IEP.

These children are placed on 504 plans, and when they are not successful in the general education setting, they place them in a special education setting without an IEP. Thank you for your time and assistance.


Dear Justin,

You seek information as to the legality of a school district policy that if a student cannot qualify for an IEP without displaying intellectual deficits or discrepancies even though they display emotional or behavioral problems. Further, you question whether it is legal for a student with a 504 plan based on those behavioral issues to be placed in a self contained class with children with behavior disorders.

At the outset, the IDEA is clear that children with emotional disturbances and behavior disorders are eligible for special education if those disorders adversely affect their educational performance, without regard to the presence of intellectual deficit or discrepancies in relation to achievement. Indeed, the criteria for emotional disturbance under the IDEA are heavily weighted in relation to behavior, rather than in relation to academic performance.

Further, amendments to the IDEA in 2004 indicated that schools must evaluate and develop programming for students based on academic, developmental and functional problems, which would incorporate emotional and behavioral issues as well as intellectual and academic problems. Thus, a school policy which precludes IDEA eligibility based on the absence of an intellectual or academic deficit would be overly restrictive in relation to the provisions for eligibility under IDEA.

At the same time, the student may qualify for protection, including educational and related services, based on a section 504 plan. Thus, a student with a disability qualifies for a section 504 plan and could be entitled to specialized instruction and related services. However, the IDEA expressly prohibits a student from being placed in special education without full informed parental consent at the outset.

If a child is being placed in a self-contained special education classroom, based on a 504 plan rather than IDEA eligibility, it would be a strong argument that the student is being effectively placed into special education, even if not officially placed into special education. Further, this placement is apparently taking place without informed parental consent, which would violate the requirements of IDEA.

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