By John Worthington, Esq., Coordinator of Special Education Law, Foundation for Educational Administration
In a companion article in this edition of School Law Central, we discussed the requirements and procedures of the federal Title VI and Title IX laws, as well as New Jersey’s HIB laws. In this article we address the requirements of the Individuals with disabilities Education Act (IDEA) and New Jersey’s implementing regulations and how they intersect with, and impact, how students with disabilities are addressed under these anti-discrimination laws.
One key aspect of the IDEA is its complex procedures and protections afforded to students and parents with respect to disciplining students with disabilities. The IDEA provides certain procedural protections to students with disabilities when they are disciplined, including manifestation determinations to assess whether the student’s disability was the cause of behaviors. Essentially, this means that, if a student’s behavior is caused by the disability, discipline that has been imposed changing the student’s educational program and placement is voided and the student returned to his or her previous educational placement. (See N.J.A.C. 6A:14-2.8 and Appendix A).
Another provision of IDEA and New Jersey regulations is that addressing “unique circumstances.” Under IDEA and New Jersey regulations, school district personnel may, on a case-by-case basis, consider any unique circumstances when determining whether or not to impose a disciplinary sanction or order a change of placement for a student with a disability who violates a school code of conduct (N.J.A.C. 6A:14-2.8(b)). This means no penalty such as a suspension need be imposed, even if the school district has a mandatory penalty in its code of conduct. It is within the disciplinarian’s discretion whether to impose a penalty in accordance with federal and state law. Thus, for code of conduct purposes, a student’s disability may, and should, be considered when determining consequences. As such, the disciplinarian can determine not to impose punitive consequences if they conclude the conduct was caused by the student’s disability.
Students with disabilities are overrepresented as perpetrators and victims of HIB. While the disabling condition is a factor in determining repercussions when a student with disabilities engages in bullying, it is not a factor in determining whether an alleged act of bullying can be confirmed under New Jersey law. The reasonable perception of the victim is the standard, not the intent of the perpetrator. The same is true for Title IX violations, as that law also utilizes a reasonable victim standard for assessing claims filed pursuant to the law.
Title IX prohibits discrimination based on sex. Title IX does not require intent on the part of the perpetrator or an impact on the victim. Instead, it requires behavior sufficiently severe or pervasive to deny a student the benefit of the educational program. The legal standard is to demonstrate that a reasonable student of the same age would have been harmed. The lack of intent standard means that a student with disabilities can be a perpetrator even if she/he does not understand the nature and potential impact of their actions or the impact of such actions. The disability, just like with a confirmed HIB, may be considered when determining the consequences for the student’s actions.
Conversely, Title VI, based on Executive Order 14281, issued by the Department of Justice and which took effect on December 10, 2025, limits complaints under Title VI to those arising from intentional discrimination only. Therefore, based on the current reading of the law by the Department of Justice, a student with disability who does not understand the nature or implications of his or her conduct necessarily could not be determined to have violated Title VI if the conduct is a manifestation of their disability. While this is an open question, the Department of Justice’s executive order compels this conclusion, as a lack of understanding of conduct necessarily demonstrates a lack of intent. As such, students with disabilities could only be found to have violated Title VI in cases where the conduct is not a manifestation of their disability.
Therefore, in HIB and Title IX cases, manifestation determinations are relevant only for purposes of determining consequences, not whether violations of the laws have occurred. With respect to Title VI, a lack of intent, as demonstrated through a determination that conduct was a manifestation of a student’s disability, compels a determination that no violation of the law has occurred.
With respect to all these laws, supports should always be considered for a student with disabilities regardless of whether the disability caused the conduct or discipline is imposed. These determinations should be coordinated with the IEP/Section 504 team when considering supports, conducting FBAs, and development of a behavior plan. It is the intersection between these procedures and the requirements of Titles VI and IX, as well as New Jersey’s HIB laws, that impacts how school districts must proceed when investigating and imposing consequences under the laws.
Providing appropriate services to victims and perpetrators with disabilities of a HIB or a violation of Title VI or IX is paramount. IEP meetings should be held for both, especially for victims. In fact, guidance from the USDE strongly suggests that such meetings be held when a HIB occurs. Pursuant to federal guidance, being bullied can constitute a FAPE denial and result in a change in placement and/or services through mediation and due process hearings. The protections under IDEA and federal guidance provide remedies NOT in the ABBRA. The ABBRA does not provide for a change of placement to another school/school district as a remedy. Case law has consistently held that these are not appropriate remedies. Such changes in program, placement and services would be a part of a FAPE, and thus the school district would be responsible for all costs of the changes (tuition, busing etc.). This is a remedy/protection unique to students with disabilities.
Developing policies and procedures to effectively address these nuances with respect to how these laws intersect for students with disabilities is paramount. School districts should consider creating policies and procedures to ensure:
- That the case manager for an IEP or 504 Plan is informed whenever a student with disabilities is involved as a victim or perpetrator in a HIB, Title VI or Title IX claim.
- That an IEP or 504 meeting is held whenever there is a confirmed HIB or Violation of Title VI or Title IX involving a student with a disability as the victim or perpetrator.
- IEP or Section 504 team meetings are held whenever a student with disabilities is a victim under the HIB laws, Title VI or Title IX.
- An IEP or Section 54 team meeting is considered for all students with disabilities found to be a perpetrator in an investigation under the HIB laws, Title VI or Title IX.
- Requiring IEP or Section 504 team meetings but making it clear that changes are mode the IEP of Section 504 Plan only as determined by the team to be appropriate to address the impacts of the investigation and the conduct that was part of the investigation.
- Addressing the impact of a student’s disabilities in HIB, Title VI and Title IX investigations.
◊ The policy should address the standard for such investigations, noting the reasonable victim standard in HIB and Title IX, and the intent requirement for Title VI as set forth in the Department of Justice Executive Order.
- Manifestation determinations should be considered in these policies both with respect to required determinations in IDEA and Section 50 for discipline matters, and the use of manifestation determinations (formal or informal based in unique circumstances) for assessing the appropriate repercussions when a student with disabilities is involved in a HIB, Title VI or Title IX clam/investigation.
Moving Forward
This article addresses the intersection between IDEA and HIB, Title VI and Title IX when addressing conduct of students with disabilities and suggests development of policies and procedures to ensure that these students continue to receive a FAPE when involved in investigations/claims pursuant to these laws. Considerations for development of such policies and procedures to meet the needs of students with disabilities are set forth to assist school districts in complying with their obligations under these laws and appropriately addressing the needs of students with disabilities