By: Cristina Gaudio, NCSA Legal and Policy Fellow
This week, records obtained in Tennessee showed the prosecution of a 5-year-old boy with autism. Documents show that the Sumner County District Attorney's Office and juvenile court had previously declined to prosecute the case, swiftly dismissing initial charges that were brought forth by a school resource officer. However, two parents, one who later failed to show in court and whose charges were dismissed, moved forth to press criminal assault charges via private prosecution.
The autistic student has reportedly thrown toys, furniture, and objects across the classroom, at times striking other students. In the initial charges, which again, were later dismissed, no injuries were listed. However, incident reports from the school resource officer indicate apparent “intention” to hurt others, “understanding of actions,” and “lack of empathy” on the part of the student.
The student was receiving special education services and was under an Individualized Education Plan (IEP). Before starting school, his parents placed him in several months of intensive therapy to treat symptoms of aggression, where he showed improvement. Once school began, the child’s providers had recommended he was ready for a traditional classroom, so long as proper supports were in place. In the eyes of his parents, his IEP and assessments, which refused to include 1:1 supports, were neither read nor implemented soundly. The boy was suspended twice, for a total of 3 days, and it was not until the parents hired an advocate that a new plan was enacted. Since this time, his outbursts have improved, say his parents, but the school’s reaction and subsequent private legal fallout have landed hard.
To understand the core of the issues at hand, I have outlined the pertinent legal and policy frameworks upon which this case rests. Given the young age and the disability of the student being charged, what happens next has enormous implications for the justice system and disability rights community.
Beginning with federal law, the Individuals with Disabilities Education Act (IDEA) outlines 13 categories of disability, of which Autism Spectrum Disorder (ASD) is one of the primary groups. IDEA, rooted in 14th Amendment principles of equal protection, is the driving federal civil-rights statute guaranteeing students with disabilities specific rights, protections, and services in school. For a child like the 5-year-old in Tennessee, a young autistic school-aged boy already on an IEP, IDEA’s protections are not optional: they are legal entitlements.
Under IDEA, every eligible child is entitled to a Free Appropriate Public Education (FAPE), meaning special education and related services designed to meet their unique needs at no cost to the family. FAPE must be: individualized, data-driven, based on peer-reviewed research “to the extent practicable,” reasonably calculated to enable progress (not stagnation or regression), and provided in conformity with the child’s IEP. Failing to implement needed supports (e.g., behavior supports, 1:1 aide, communication interventions) is a denial of FAPE.
Now, the IEP is the legally binding document that serves as a roadmap for free, appropriate public education for the child. It outlines the child’s present levels of performance, annual goals, special education services, related services like speech or OT, accommodations, and placement. Critically, the IEP must also address any behaviors that interfere with learning by specifying the supports, interventions, and adult assistance the student needs to function in the classroom. When a student exhibits serious behavioral challenges, the IEP team is required to proactively update the plan accordingly rather than allow problems to escalate.
When a child’s behavior becomes a concern, especially when it leads to disciplinary incidents, the school is required to conduct a Functional Behavioral Assessment (FBA). An FBA identifies what triggers the behavior, what function the behavior serves (such as escape, sensory input, or attention), and what changes to the environment or instruction are necessary to prevent recurrence. IDEA’s framework is explicit: disability-related behaviors must be understood through proper assessment, not handled through punishment.
Following the FBA, the school must create a Behavior Intervention Plan (BIP) that uses positive behavioral interventions, skill-building strategies, environmental supports, reinforcement systems, data collection, and, when appropriate, individualized adult support such as a 1:1 aide. A BIP is a core component of FAPE for students with behavior needs. If the school never develops one, or fails to implement the plan consistently, any resulting behavioral escalation is understood as a consequence of the school’s noncompliance with IDEA.
Through the FBA and BIP, IDEA provides powerful discipline protections to prevent schools from punishing disability-related behavior. Once the FBA is conducted and the BIP is laid out, even further discipline protections are in place to prevent schools from punishing disability-related behavior without first examining whether the school itself failed to provide the supports the child needed. When a student with a disability violates a code of conduct, the school may impose short removals, such as brief suspensions. But once those removals reach a certain threshold, IDEA’s safeguards are triggered.
Specifically, schools may use removal to discipline a student with a disability for up to ten cumulative (not necessarily consecutive) school days in the same way they would discipline a nondisabled student. These short removals do not automatically require a change to the IEP or placement. However, once a student is removed for more than ten cumulative school days, or once repeated short removals add up to a “pattern” that constitutes a possible “change of placement,” the school must pause and conduct a Manifestation Determination Review (MDR) within ten school days. MDR asks two legally significant questions: whether the behavior was caused by, or had a direct and substantial relationship to the child’s disability, and whether the behavior occurred because the school failed to implement the IEP properly. If the answer to either question is yes, the behavior is legally considered a manifestation of the disability. In that case, the school cannot pursue long-term suspension, expulsion, or similar discipline, and must instead conduct a functional behavioral assessment, revise or implement a behavior intervention plan, and return the child to the original placement setting unless the parent wishes otherwise. These protections exist to ensure that schools do not punish children for predictable disability-related behaviors—especially in cases where inadequate supports contributed to the behavioral episodes.
Now, shifting to the Tennessee-specific legal framework, we see that Tennessee law reinforces and expands on IDEA’s protections through several statutes and regulations, making the state’s obligations unmistakably clear. Under Tenn. Code Ann. § 49-10-1304, schools may use isolation or physical restraint on a student with disabilities only in emergency situations, and when such measures relate to behaviors addressed in the IEP, the plan must be supported by a data-driven Functional Behavioral Assessment (FBA) and a corresponding behavior-modification plan. If restraint or isolation is used outside what the IEP authorizes, the school must convene an IEP meeting within ten days, and if the behavior precipitating these actions also results in, or warrants, a change of placement, the child must receive all procedural protections required under federal and state law.
Most crucially, Tennessee’s regulations in Tenn. Comp. R. & Regs. 0520-01-09-.24 further specify that FBAs and Behavior Intervention Plans (BIPs) are mandatory when a student with disabilities exhibits a pattern of behaviors that impede learning, engages in conduct that could lead to a change of placement, or requires consideration of a more restrictive setting. These regulations define the required components of an FBA and emphasize that BIPs must rely on positive, evidence-based interventions rather than punitive discipline. Tennessee also codifies detailed requirements for documenting, reporting, and limiting the use of restraint and isolation through Tenn. Comp. R. & Regs. 0520-01-09-.23, underscoring the state’s position that behavioral escalation should trigger review of supports, not punishment. Importantly, § 49-10-1304 explicitly states that before a school refers a student with a disability to law enforcement or files a juvenile petition, the school must ensure that a Manifestation Determination Review has been conducted pursuant to 34 C.F.R. § 300.530, tying Tennessee’s procedures directly to IDEA’s change-of-placement safeguards.
Together, these provisions make clear that when behavior is linked to disability, and especially when the student’s supports are inadequate, the state’s legal framework requires assessment, intervention, and IEP review, with punitive approaches like criminalization nowhere near the table.
Tennessee does not have a minimum age for pressing charges, and another parent, and not the school, is now moving the assault charge forward. Nevertheless, the school, under IDEA, still cannot escape its obligations simply because a private citizen or parent has initiated a criminal complaint. The practical effect of these charges is still law enforcement involvement, potential removal from school, potential limitations to attendance, whole family trauma, and emotional/behavioral impact that interferes with FAPE. If the behaviors at hand were formally deemed to stem from disability related challenges, which is extremely likely in the case of a five year old boy with autism, the school had, and still has, an affirmative duty to ensure supports, revise a BIP, conduct an FBA, and most importantly, prevent escalation to law enforcement through proper IDEA implementation. This child certainly should not face the same disciplinary exposure as a nondisabled student, and definitely not an arrest, charges, or criminal consequences from any legal (and frankly, common sense) standpoint.
The unlawfulness of the TN case is backed by case law in other states. Specifically, courts have held that when a child exhibits disability-related behaviors, the responsibility lies with the school, and not the child, even in the most severe cases. In G.G. v. District of Columbia (2013), a federal court found that the school district violated IDEA by failing to timely evaluate a young child who displayed escalating behavioral and social-emotional difficulties. The court emphasized that delays in assessment or failure to provide behavioral supports constitute a denial of FAPE.
Importantly, the court’s reasoning leaves no room for the argument that the child’s behaviors were simply too severe or unpredictable, making clear that IDEA imposes an affirmative duty on schools to implement appropriate behavioral supports in all cases.
The child’s level of need did not reduce the school’s responsibility, rather, it heightened it. This precedent reinforces the principle that disability-related behavior is not an excuse for inaction, or punishment; it is a legal signal that the school must act, and that severity of the behaviors may not be used as a cop-out.
I would be remiss not to mention that the situation at large is not only a breach of the law, but a reflection of a broader social problem: that our world is completely ill-equipped to handle the complex needs of autism. We can shout until we are blue in the face that a) the school had a legal obligation under IDEA to provide behavioral support (FBA, BIP, 1:1 aide), b) the school’s delay/non-compliance contributed directly to the behavioral escalation, and c) criminalizing disability-related behavior contradicts IDEA’s protections. But we also must take a long, hard look in the mirror as we establish the best way forward.
It is absolutely true that all children, disabled and nondisabled, deserve to feel safe in school. No parent wants their child injured or frightened, and no teacher or student should be left without protection or support when a classroom becomes dysregulated. But safety cannot be achieved by criminalizing a five-year-old whose behavior is a direct expression of unmet disability-related needs. Safety comes from properly staffed classrooms, trained personnel, individualized supports, specialized placements when needed, and access to appropriate psychiatric care. When these structures are absent, crises become inevitable, and schools shift into reactive, punitive, or law-enforcement-oriented responses not because they are required, but because they do not have the knowledge, staffing, or tools to do better.
State requirements do lay out guidance on best practices for schools to comply with procedures, but loose wording, combined with under-resourcing, lack of proper staff, and an absence of trained experts often works to the detriment of students with autism, especially severe and aggressive forms of autism. For instance, Tenn. Comp. R & Regs. 0520-01-09-.24(2) states: “To the extent possible, the FBA process shall be led by a school psychologist, Licensed Behavior Analyst, or other School Personnel trained to conduct FBAs.” With no requirement that an FBA is led by a credentialed professional with subject matter expertise, and no specification of what “trained to conduct” FBAs even entails, the margin of error is wide for students to fall through cracks. NCSA executive director, Jackie Kancir, who has led the frontline battle for special educational behavior reform in Tennessee for several years, reiterates that the onus of providing an appropriate education, which legally belongs to the school, in practice often falls wrongly on the parents, stating, “Many schools do not even have a subject matter expert on staff. This results in many flawed FBAs, and in turn, unhelpful, even at-times, harmful BIPs. There is often no expert to train the staff who will be responsible to implement the BIP on how to collect data, identify antecedents, or even how to execute the responses designed in the plan. I’ve been in special education advocacy for three decades. While my outcome was favorable, nearly no parent, especially ones of young children, have the knowledge to fight these big systems to comply with federal law. We cannot place the onus on parents when schools are non-compliant.” She further lamented that vast majority of parents who have children with severe forms of autism in Tennessee remove their child from public school to homeschool unless they have the financial means or awareness a quality advocate or attorney.
Kancir’s note on the reality of special education policy, in conjunction with the aforementioned legal frameworks, establish that the law does not exist in a vacuum. In Tennessee, as in most states, the statutory protections for children with disabilities far exceed the system’s current capacity to deliver them. As a result, the rights that exist on paper are routinely undermined by a system that does not have the resources or expertise to meet its legal obligations. In such instances, children with the most complex and aggressive behavioral needs become the quickest to be punished and the first to be failed.
Autism is a complex neurodevelopmental condition that often involves sensory overload, impulsivity, difficulty with emotional regulation, and limited communication skills.
Behaviors that may present as lack of empathy and intention to hurt others are not signs of moral failure or malice; they are signs of neurological dysfunction. And they require intensive, individualized, evidence-based support.
Criminalizing manifestations of disability before providing appropriate educational and therapeutic services is not only against the law, but morally indefensible in a civil society. If the goal is safe education, healing, and development for all students, then increased resources, funding, and training for school officials and special educators is the productive and humane way forward.
What happens next in Sumner County will have ramifications far beyond one child. It will signal whether Tennessee intends to honor its legal obligations to disabled students, or whether it will allow the criminal justice system to become the default response to symptoms rooted in disability. It will set a precedent for students with autism for years to come. Nevertheless, the state and federal laws are undeniably clear at this time. By any reasonable reading of these protections, a child has been unlawfully arrested.
Author’s Note:
Cristina Gaudio is the Legal Policy and Advocacy Fellow at the National Council on Severe Autism. A JD/MPP candidate at Vanderbilt University and a proud autism sibling, Cristina is dedicated to advancing evidence-based policies that support individuals with severe and profound autism. Her work focuses on Medicaid reform, housing access, and meaningful services for profoundly affected individuals. She also serves as a U.S. Air Force Reserve Officer.