Middle schools, high schools, and colleges in Kansas can discipline students and uphold academic standards, but they may not discriminate against students with disabilities. It is an unfortunate truth that in the US, schools and universities disproportionately discipline children and young adults with disabilities. Children with disabilities are more likely to face discipline and are far more likely to be suspended or expelled than non-disabled peers. While middle and high school students face the possibility of uneven discipline, the problem may be even worse at the college or university level. Students with disabilities and their parents should understand the protections provided under federal and Kansas law—these protections can make all the difference when a student with a disability is singled out for unfair treatment.
The Lento Law Firm is a Nationwide Student Defense Firm
The Lento Law Firm is a nationwide firm of experienced education attorneys, and they can provide representation to Kansas students. The Lento Law Firm represents students with disabilities in all types of primary and secondary school disciplinary proceedings. For students who face discipline after starting college, the Lento Law Firm Student Defense Team can help secure accommodations and address the root of the problem. Even if a student has failed to notify the school or college of their disability previously, the Lento Law Firm can advise and assist in protecting their rights. Call 888.535.3686 or provide your details online, and we will contact you.
Primary and Secondary Students with IEP/504 Plans
Elementary, middle, and high school students have more expansive protections from discrimination based on disability than college students. These students, if they are disabled, will most often have an IEP under IDEA, or they may have a 504 Plan. IDEA and Section 504 require the school to evaluate students with disabilities before a “change in placement.” This means that before any lengthy suspension, expulsion, or any change in educational placement, the school must address the role the disability may have played. The school must determine whether the behavior at issue was caused by or related to the disability or the school's failure to follow the IEP.
Kansas Law Regarding Suspension or Expulsion
In addition to protections under federal law, the Kansas Pupil Suspension and Expulsion Act, K.S.A. 72-6114, provides due process protections to all Kansas students. This law requires that parents be given notice and an informal hearing before an expulsion or suspension.
This Kansas law also provides protections when there is a disciplinary change in placement or an interim alternative educational placement. The federal laws protecting disabled students add protections but do not take away the due process protections that exist under Kansas law.
Interim Alternative Educational Placement
After certain types of serious misconduct, the student may be moved or suspended, even if the conduct is related to a disability, for up to 45 days.
To justify the interim alternative educational placement, the student must have engaged in one of three types of serious misconduct:
- The student possesses a weapon at school or at a school function.
- The student possesses or uses illegal drugs or sells drugs at school or at a school function. In Kansas, neither alcohol nor tobacco products fit this definition, regardless of the student's age.
- The student has inflicted serious bodily injury upon another person while at school or at a school function. (See K.S.A. 72-3433(a)(3).
A student has a right to a hearing if the school seeks an interim alternative educational placement. Although the student can be placed in an interim placement without a prior Manifestation Determination Review, the Review must still be done by the IEP Team after the change of placement.
After a student allegedly commits a violation involving a weapon, drugs, or serious injury, the school may initially suspend the child for up to 10 days. The law does not require the school to provide services during this period, but the school must provide services from the 11th day going forward. The IEP Team will decide and recommend an alternative setting and what services the school must offer the student.
Change in Placement
When allegations of misconduct do not involve weapons, drugs, or serious bodily injury, the proposed discipline constitutes a “change in placement” only when it involves more than ten days within a school year. These ten days may be consecutive, or they may be part of a discipline or removal pattern. This pattern will vary in each case, but any serious discipline or repeated pattern of discipline will constitute a “change in placement.” To determine whether misconduct allegations are caused by or related to a student's disability, the school must conduct a Manifestation Determination Review (MDR).
Manifestation Determination Review
In an MDR, the school must determine if the misconduct that led to the discipline is a “manifestation” of the child's disability.
Misconduct is a manifestation of a disability if:
- The disability caused the misconduct.
- The misconduct has a “direct and substantial relationship” with the disability.
- The misconduct directly resulted from the district's failure to implement the IEP.
- Where the School Finds Behavior Was Based on Disability.
If the school finds that the behavior was based on disability, it is much more student discipline. The school must return the student to the placement from which they were removed and either do a functional behavioral assessment or use a prior assessment to formulate a behavioral intervention plan. If a behavioral intervention plan is already in force, the plan may need to be modified in order to address the behavior. The student may need:
- Expanded services, counseling, or therapy.
- Modification or accommodations of policies.
- More extensive behavioral supports.
Except where drugs, weapons, or serious bodily harm is involved, the child cannot be removed from the classroom. A more restrictive environment should be considered only where necessary.
- Where the School Finds Behavior Was Not Based on Disability.
If the school finds that the behavior is not related to disability, it can discipline the students in the same way as non-disabled students. However, it cannot discriminate or discipline the student differently.
A parent or guardian may appeal a finding that the student's disability played no role in the misconduct.
If a Disabled Student is Not Receiving Special Education
In some instances, a child may be entitled to protection for a disability even if the child does not have an IEP or 504 Plan. Under K.S.A. 72-3436, the school district may need to provide additional protections to a student if the school had knowledge of a disability prior to the disciplinary action. Knowledge can be inferred if a parent expresses concern in writing that the child needs special education services or asks for an evaluation or if a teacher or other school official expresses concern about a pattern of behavior or disability of a student. The student cannot assert these protections if the parent did did refuses to give consent for an evaluation or if an evaluation found that the child did refuse to give consent for an evaluation or if an evaluation finds that the child does not have a disability.
If the school does have knowledge of a student's disability, it must conduct an evaluation in an expedited manner. If the child is entitled to special education services, they are treated like any other student with an IEP.
Discipline of College Students
The Americans with Disabilities Act (ADA) and Section 504 of the Federal Rehabilitation Act protect against discrimination based on disability for college and university students. In order to qualify for protections under these laws, a student must be a “qualified person with a disability.”
The definition of “disability” under these laws is very broad. A disability is an impairment that “substantially limits one or more major life activities.” The term major life activities is quite broad and encompasses a number of activities relevant to college study:
- Learning.
- Reading.
- Concentrating.
- Thinking.
- Communicating with others.
- Interacting with others.
- Standing, sitting and working.
Even if a student has been denied access to special education in high school, if a physician has diagnosed them with a disability, they should register and seek accommodation.
Otherwise Qualified for Program or Degree
To be covered by ADA protections, a student must be “otherwise qualified” for the program or degree in which they are enrolled. The university or college may argue that a disabled student is not qualified and will not be able to continue to pursue the degree or program. This defense is particularly likely if a student faces discipline for academic issues. The problem may be that the student needs accommodation for the disability to succeed. The college may be taking action based on stereotypes or outdated ideas of what a disability will mean in the long term. Without the vigorous assistance of counsel, the college or university may not admit that academic issues could have been avoided with a pattern of reasonable accommodation. Call the Lento Law Firm if you are in this position—we can help.
Discipline at the College Level
College students have fewer protections than school-age children regarding disability issues, but they are protected. Title II of the ADA provides that all colleges or universities that receive public funding (nearly all) must reasonably accommodate students with disabilities.
This law means that your college or university must provide accommodation and modifications such as:
- Testing accommodations.
- Substitution of courses or classes.
- Housing and dining accommodations, including single rooms and quiet buildings.
- Expanded time for testing or to finish a degree.
- Assistive technology.
- Note-taking assistance.
- Attendance modifications, including virtual attendance.
- Other necessary accommodations.
University of Kansas Support for Disabled Students
For example, the University of Kansas has a number of services and procedures applicable to disabled students (but all universities in Kansas will have some type of accommodation process). At KU, the process for students to notify the University of their disability and request accommodation is electronic. Access Online is a tool for students to first notify the University of their disability and provide proof or documentation. The University assigns an Access Specialist to each student, who helps decide the type of accommodation the student may need.
The University supports reasonable attendance policies for disabled students and offers several exam accommodations, including providing an alternative location for testing.
For note-taking accommodations, the University of Kansas offers three different possibilities:
- The instructor of the class provides notes ahead of time.
- A teaching assistant provides notes that they take or have taken for the class.
- Another class member provides their notes on a volunteer basis.
If no volunteer is available to take notes, the instructor or teaching assistant will need to provide notes ahead of time.
The University of Kansas also provides parking housing, dining accommodations. A student who is denied reasonable accommodation or otherwise discriminated against by the University may pursue a SAC Grievance.
Due Process Hearing for Misconduct
If you face discipline from your college or university, they may have charged you with academic misconduct, sexual misconduct, or some other type of conduct violation. The procedure for each institution is a little different, but if you have received notice of the charges against you, you will need to answer the charges and you will need to prepare for a due process hearing.
The period of time prior to this hearing is important for you and your attorney. Your attorney will negotiate with the college or university to settle your case informally. As you prepare for your due process hearing, your attorney can guide you through issues of disability and accommodation.
The Lento Law Firm Student Defense Team
If you are a student or the parent or guardian of a student facing discipline, the Lento Law Firm can help. We are experienced education attorneys who assist Kansas school-age students with disabilities in defending against suspension or expulsion. We also represent college students as they defend against academic, sexual, or other misconduct allegations. Whether you are from Wichita, Kansas City, Topeka, or elsewhere in Kansas, the Lento Law Firm Student Defense Team can help you defend against charges and assert your rights. Call 888.535.3686 or provide your details online, and we will contact you.
