Here is a brief summary of some of the legal rights under federal law that extend to children with disabilities who are informally removed from school. They arise from the U.S. Constitution, Section 504 of the Rehabilitation Act of 1973 (Section 504), and the IDEA. Children may have additional rights under state law and other federal laws as well.
Constitutional Due Process Rights
In 1974, the U.S. Supreme Court held in Goss v. Lopez that because the students who had sued the school district were required to attend school by law, their right to education was a property interest protected by the Due Process Clause of the U.S. Constitution. As such, their education could not be taken away through a suspension without minimum due process procedures. The Court found that students facing suspension should at a minimum be given notice and a hearing of some type. The amount of protection (hearing, notice) varies depending upon the length of the school removal, and in certain circumstances, could even permit the student to call and cross examine witness.
Section 504 requires nondiscrimination under Federal grants and programs. This section of the Rehabilitation Act of 1973 ensures that “No otherwise qualified individual with a disability in the United States…shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance…”
Children with disabilities are qualified individuals with disabilities in the context of public school. LEAs are programs that receive federal financial assistance. As a result, LEAs may violate Section 504 if they exclude children with disabilities from participation in a full day of school because of their disability.
A recipient of federal funds must provide a qualified person with a disability an opportunity to participate in or benefit from the aid, benefit or service that is equal to that which they provide to others. When it denies a full day of school, an LEA fails to provide a child with a disability the same opportunity to attend school that was provided to their peers. In this way, the LEA may discriminate against children with disabilities.
LEAs that provide children with disabilities with services (a public-school education) that are not as effective as they provide to their non-disabled peers, are also in violation of Section 504. Students receiving shortened school days are not receiving an education that is as effective as their peers. To hold that shortened school days are equivalent to full school days would require the absurd conclusion that the educational services that LEAs offer to students are ineffective and of no value.
Under the IDEA, IEP teams must consider a number of special factors when developing, reviewing, or revising a child’s IEP. The IDEA specifically requires IEP Teams to consider the use of positive behavioral interventions and supports, and other strategies, to address behavior for any child with a disability whose behavior impedes his or her learning or that of others.
Per a United States Department Of Education, Office Of Special Education And Rehabilitative Services 2016 “Dear Colleague Letter”
Incidents of child misbehavior and classroom disruptions, as well as violations of a code of student conduct, may indicate that the child’s IEP needs to include appropriate behavioral supports. This is especially true when a pattern of misbehavior is apparent or can be reasonably anticipated based on the child’s present levels of performance and needs. To the extent a child’s behavior including its impact and consequences (e.g., violations of a code of student conduct, classroom disruptions, disciplinary removals, and other exclusionary disciplinary measures) impede the child’s learning or that of others, the IEP Team must consider when, whether, and what aspects of the child’s IEP related to behavior need to be addressed or revised to ensure FAPE. If the child already has behavioral supports, upon repeated incidents of child misbehavior or classroom disruption, the IEP team should meet to consider whether the child’s behavioral supports should be changed. (Emphasis supplied)
A recent federal court ruling by a United States District Court in Oregon ruled:
To obtain funding under the IDEA, a State must implement policies and procedures to ensure a free appropriate public education (“FAPE”) in the least restrictive environment (“LRE”) …A FAPE consists of “special education”—instruction specially designed to meet the unique needs of a child with disability—and “related services”—developmental, corrective, and other support services as may be required to assist a child to benefit from that instruction…
A least restrictive environment is to the maximum extent appropriate, a general education in a regular classroom environment. …“[R]emoval . . . occurs only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily…”
…It is the expectation that all children, including children with disabilities, obtain an educational program, offered to the child with a disability via the IEP, that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.
It would be impossible to meet this standard while attending school for only a small portion of the school day, and the standard would not be met if the child is functionally removed from school entirely, as is the case with the “transfers to nowhere,” homebound placements and “agreements in lieu of suspension” described within this report.
ED’s Policy on Informal Removals
ED’s policy guidance, in reference to shortened school day (one type of informal removal) provides a strong statement about informal removal by recognizing that a shortened school day may, in some cases, be considered a suspension for the purposes of the IDEA. These cases involve removals that are potentially harmful to the student, as reflected in the definition used in this report.
.In general, the Department does not consider the use of exclusionary disciplinary measures to be disciplinary removals from the current placement…so long as children with disabilities are afforded the opportunity to continue to be involved in and make progress in the general education curriculum, receive the instruction and services specified on their IEPs, and participate with nondisabled children to the extent they would have in their current placement…It is likely that the exclusionary disciplinary measures…if implemented repeatedly, would constitute a disciplinary removal from the current placement. For example, when school personnel regularly require a child with a disability to leave school early and miss instructional time due to their behavior, it is likely that the child’s opportunity to be involved in and make progress in the general education curriculum has been significantly impeded; in such circumstances, sending the child home early would constitute a disciplinary removal from the current placement… To the extent that schools implement exclusionary disciplinary measures in a manner tantamount to a suspension – or other removal from the child’s current placement – they are required to fulfill their statutory obligation to report such removals, and act within the authority of school personnel provided…[in the IDEA]”. (Emphasis supplied.)
A child placed out of school on a homebound tutoring program, a shortened day or other administrative removal is almost certain to experience a reduced educational program and/or be provided IEP services that are “reduced to fit.” Such changes would fail factors one and two of the three-part test. In addition, a child in this situation would be unlikely to “continue to participate with nondisabled children to the extent they would have in their current placement,” the third requirement of the three-part test above. Homebound placements, because they are considered among the most restrictive of placements, cannot be considered until all other placement options and supplementary services have been attempted.
In addition, the child’s IEP Team must consider what additional aspects of the child’s IEP related to behavior need to be addressed or revised to ensure FAPE.
The same 2016 ED Dear Colleague Letter addresses informal removals in the context of the IDEA’s discipline protections with these examples.
These exclusionary disciplinary measures also could include: A pattern of office referrals, extended time excluded from instruction (e.g., time out), or extended restrictions in privileges; Repeatedly sending children out of school on “administrative leave” or a “day off” or other method of sending the child home from school; · Repeatedly sending children out of school with a condition for return, such as a risk assessment or psychological evaluation; or · Regularly requiring children to leave the school early and miss instructional time (e.g., via shortened school days). (emphasis supplied)
A removal is not considered a part of the days of suspension as long as the child is afforded the opportunity to continue: 1) to appropriately participate in the general curriculum, 2) to receive the services specified on the child’s IEP, 3) to participate with nondisabled children to the extent they would have in their current placement
The following state complaint decision provides an example of how these requirements apply in an informal removal case.
…[T]he Student’s school day was reduced to half days based on the Student’s behaviors. The Student’s IEP was not amended to reflect this change or address how the Student would receive all required services. A manifestation determination review was not conducted. The reduction of school hours, outside the scope of an IEP meeting where the Parent consents to a change of placement constitutes a constructive removal. Therefore, the Community School is in violation of 34 C.F.R. 300.530(b)-(f) as it should have conducted a manifestation determination review, obtained consent for any change of placement and created a plan to ensure the Student received all required services…  (Emphasis supplied)
This example of a remedy from a recent DOJ settlement agreement shows how significant a violation these removals are under federal law.
The District will implement system-wide policies and methods of administration that will require the District to monitor students on Abbreviated School Days, including through the collection and maintenance electronically of the following information regarding every student on an Abbreviated School Day: (a) student identification number; (b) school; (c) grade; (d) date of birth; (e) sex; (f) whether the student has an (i) IEP; and/or (ii) 504 Plan; (g) if the student has an IEP or 504 Plan, the disability identified on that plan; (h) EL status (Active, Optout, Exited [if within last three years]); (i) SLIFE status (Active, Former, Never); (j) the number of hours per week the student is scheduled to attend school; (k) the date the student started enrollment in the District; (l) the date the student started on the Abbreviated School Day; (m) the date the student’s Abbreviated School Day ended (if it ended) or expected return date; (n) whether the student started on a full-day schedule after the Abbreviated School Day placement, and if not, an explanation of what happened after the end of the Abbreviated School Day (e.g., the student dropped out, the student graduated, etc.); (o) a detailed explanation of why the student was/is on an Abbreviated School Day; (p) for students with disabilities, the number of hours of missed instruction and the number of missed services and supports on the student’s IEP and/or 504 Plan; (q) for a student with a disability, whether the student has a BIP, and the date of the BIP’s implementation; and (r) for a student with a disability on an Abbreviated School Day for disability-related behavior, whether the District (i) took the steps [required]. 
ED’s position is that an informal removal should be treated as a suspension for due process, IDEA and Section 504 purposes when the child’s program while removed meets the three-part test above, and that violations have serious implications for children, and indirectly LEA’s.
 Please note, this report provides a brief overview of the law and is not a substitute for legal research. Disability Rights Oregon attorney Joel Greenberg assisted with this section.
 Goss v. Lopez, 419 U.S. 565 (1975).
 A disability may manifest itself in ways that are not immediately obvious, such as an inability to communicate easily or clearly. The child’s need to communicate can result in behavior that is seen as challenging for school staff, especially who are untrained/unaware of techniques to assist them in learning how to express themselves in ways that are not seen as “disruptive.”
 34 C.F.R. § 104.4(iii).
 “Individualized Education Program” (IEP) is a plan of services developed for a specific IDEA eligible child. It is developed by an IEP Team, which includes certain members, including the child’s parents. For more information about IEPs, the following document by ED is helpful. U.S. Department of Education: Questions and Answers on Individualized Education Programs (IEPs), Evaluations, and Reevaluations (2011). Questions and Answers on Individualized Education Programs (IEPs), Evaluations, and Reevaluations (PDF)
 34 CFR §300.324(a)(2)(i).
United States Department Of Education, Office Of Special Education And Rehabilitative Services (2016) “Dear Colleague Letter on the Inclusion of Behavioral Supports in the IEP.” Dear Colleague Letter on the Inclusion of Behavioral Supports in Individualized Education Programs (PDF) ( Hereafter, “ 2016 Dear Colleague Letter” )
 2016 Dear Colleague Letter, at 4.
 J.N. v. Or. Dep’t of Educ., Case No. 6:19-cv-00096-AA (D. Or. Sep. 1, 2020).
 Note: While the word “special” continues to be used in government documents, NDRN avoids use of the term whenever possible. “Education” or “education of students with disabilities,” “ IDEA eligible” or other language that accurately reflects the service, individual, or group is preferred.
 34 C.F.R. § 104.4(iii).
 2016 Dear Colleague Letter at 13.
 34 CFR 300.115, “Continuum of alternative placements.”
 34 CFR §300.114(a].
 2016 Dear Colleague Letter, at 13.
 Millennium Community School Ohio State Educational Agency ( March 25, 2016), CP 0021-2016. Accessed at 116 LRP 11957. Complaint finding by State Education Agency (SEA).
 Settlement Agreement Between the United States and Lewiston Public Schools ( 2021). Justice Department Settles with Lewiston School District to Protect Educational Rights of Students with Disabilities and English Learners | USAO-ME | Department of Justice.
 Id. At 15.