High schools and colleges in Massachusetts are allowed to enforce conduct codes and academic standards, but they may not enforce policies in a way that discriminates against students with disabilities. Too often 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. This pattern of uneven discipline can follow a student into college or university, where the student is more likely to face an academic or misconduct allegation. Students with disabilities must understand that they are entitled to protection from discrimination and that disciplinary proceedings must comply with the law.
The Lento Law Firm is a Nationwide Student Defense Firm
The Lento Law Firm is a nationwide firm of experienced education attorneys. The Lento Law Firm represents students with disabilities accused of misconduct or academic violations. If you face discipline at the college level, the Lento Law Firm Student Defense Team can help stop academic discipline and secure accommodations. Even if you have failed to notify your school or college previously of your disability, the Lento Law Firm can assist you in protecting your 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. Some students will have IEPs under IDEA, and others will have 504 Plans. These laws require that the school district evaluate students with disabilities before a “change in placement.” This means that before suspension, expulsion, or movement to a far more restrictive environment, the school must address disability. Specifically, the school must determine whether the behavior was based on or related to disability.
Change in Placement
To constitute a change in placement, the proposed discipline or change must involve ten or more days. These days may be consecutive or follow a similar removal pattern within a school year. This “similar pattern” is determined on a case-by-case basis, 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 limited in terms of disciplining the student. In Massachusetts, the school must do a behavioral assessment and implement a behavioral plan. In most cases, the student must be returned to the same classroom with enhanced services and support. This may involve:
- Expanded services, counseling, or therapy.
- Modification or accommodations of policies.
- More extensive behavioral supports.
- Other creative ways of addressing the needs of the student.
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. Students must always be educated with their non-disabled peers to the greatest extent possible. The question should always be whether expanded services and supports can keep the student in a less restrictive environment.
- 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.
- Appeals.
In Massachusetts, a parent may appeal the results of the Manifestation Determination or a decision to change the student's placement to the Bureau of Special Education Appeals. All evaluations and other information to be used at the hearing should be given to the parent before the hearing. Before an appeal hearing, a parent should retain an experienced education attorney.
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. An MA school must provide protections under IDEA if the school “knew or should have known” that a student had a disability before the incident. The school may learn of a disability if a parent has requested an evaluation or wrote to the school with concerns about a disability or where the student's teacher has expressed concern about a pattern of behavior. 20 U.S.C. §1415(k)(5) (B(i-iii)). This exception is limited: if the parent has denied permission for an evaluation or an evaluation has found the student ineligible for special education, the student is not entitled to protection under IDEA. 20 U.S.C. §1415(k)(5)(C). If the school did have knowledge of the disability, the student must be given an education and an expedited evaluation and will proceed as any other student receiving special education services.
Discrimination and Bullying
Under Massachusetts Public Education Law, Chapter 766 M.G.L. c. 71B, §§ 1 – 16, schools must prevent the bullying and harassment of children with disabilities. If a child has a disability that affects social skills or is otherwise vulnerable to bullying or teasing, the IEP must address these problems and arrive at solutions. If the school has failed to follow the requirement that an IEP address bullying, harassment, and teasing, they may not be able to complain about a student who “fights back” or stands up to the bully. If your child has been the target of bullying or teasing, leading to behavioral issues, call the Lento Law Firm. They can help you stand up even if the school system has not.
Reasonable Modifications
As a result of a behavioral assessment, a student may ask that a school policy be modified to meet their needs. In the discipline setting, this might involve:
- De-escalation strategies.
- Time and space provision to allow a student to regain calm.
- Having a familiar, trusted adult calm the student (rather than law enforcement).
- If a mental health crisis is suspected, crisis intervention strategies might be needed.
Discriminatory Effects of Neutral Policies or Practices
A policy may discriminate against students with disabilities even if it looks neutral on the surface. Consider a school policy that requires quiet time from 10-12 each school day. Some students with disabilities could not possibly comply with this policy, regardless of how motivated they might be. They would become the focus of discipline under the policy, up to and including suspension. If the school had offered reasonable accommodations, such as allowing the student to go to another space and engage in another activity during this time, the student would not face discipline. Seemingly neutral policies often unfairly burden students with disabilities.
Discipline of College Students
At the college or university level, students are protected against discrimination based on disability by Section 504 of the FRA and the Americans with Disabilities Act (ADA). To be covered under these laws, a student must be a qualified person with a disability.
A disability is an impairment that “substantially limits one or more major life activities,” including:
- Learning disabilities.
- Autism or Autism spectrum disorder.
- Vision or hearing impairments.
- Physical or mental illness.
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.
Otherwise Qualified for Program or Degree
A student must be “otherwise qualified” for a college program or degree to be covered by ADA protections. Sometimes, colleges may argue that a disabled student is not “otherwise qualified” for the program at issue. This may be based on stereotypes or outdated ideas of what it is to have a disability. A student facing discipline for academic issues may need the assistance of counsel to overcome these ideas or assumptions. The college or university may be slow to admit that the academic issues could have been avoided with proper legal accommodations for disability.
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.
Sometimes, a student will fail to notify their college or university of their disability until they face some discipline caused by or related to it. The student may fear the possible stigma based on disability. Even if you have failed to request accommodation for your disability, it is not too late.
The first step toward reasonable accommodation is to notify disability services at your college or university. If the discipline process is underway, the university must be informed of the disability. If you are unsure how to do this, contact the Lento Law Firm and ask for assistance. Your attorney may want to present your disability as a defense at the hearing, but you may also want to seek accommodations immediately. Call and discuss your situation with the Lento Law Firm. Every situation is different and unique, but they will know how to handle your issues and give you the best chance of a good outcome.
Due Process Hearing for Misconduct
The college or university may have charged you with academic misconduct, sexual misconduct, or some other type of conduct violation. Depending on the procedure of the college or university you are attending, you will likely need to answer the charges in writing and attend a due process hearing.
Ahead of this hearing, your attorney will negotiate with your university or college to settle your case informally. Your attorney will help you prepare for and assist with the due process hearing if necessary. The Lento Law Firm will:
- Assist in answering the charges against you, including information on how your disability led to the proposed discipline.
- Help investigate your claims.
- Attempt to informally settle your issues with the university or college and secure accommodations for disability going forward.
- Assist with the hearing or an appeal, if necessary.
Complaints for Disability Discrimination for School or College Students
In Massachusetts, the Commission Against Discrimination (MCAD) enforces Title XXI, Chapter 151C, which makes it illegal to discriminate against applicants based on disability (and other protected classes). In some cases, MCAD may address complaints of harassment based on disability. Complaints must be made within 180 days.
For students under an IEP, Part B of IDEA allows the Office of Civil Rights of the US Department of Education to investigate disability discrimination claims. Under 504 and the Americans with Disabilities Act (ADA), the US Justice Department may also investigate discrimination claims. Each of these complaints may be done electronically. In deciding how to pursue a complaint for discrimination based on disability or to appeal discipline, contact the Lento Law Firm and develop a strategy.
The Lento Law Firm Student Defense Team Can Help
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 Massachusetts school-age students with disabilities in defending against suspension or expulsion. We also represent college undergraduates as they defend against academic, sexual, or other misconduct allegations. Whether you are from Boston, Springfield, Salem, or elsewhere in Massachusetts, 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.
