High schools and colleges in Tennessee are entitled to enforce codes of conduct but are not entitled to do so in a discriminatory way. The unfortunate fact is that the discipline of children and young adults with disabilities often has a discriminatory effect. School-age 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 continues as students enter college or university, where the alleged misconduct may be academic, sexual, or other code of conduct violations. However, students charged with violations of the code of conduct are entitled to protection from discrimination based on disability.
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, including academic, sexual, or other misconduct. The Lento Law Firm Student Defense Team can help stop academic discipline and secure accommodations for college students. Whatever type of discipline you are facing, if you are a student with a 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
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. Section 504 requires 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.
- Disciplinary actions that constitute a change in placement.
The proposed discipline or change must involve ten or more consecutive days to trigger the need to consider disability and its role in the misconduct. However, the proposed discipline can also follow a similar pattern of removal. 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.”
- Informal discipline.
Sometimes, the participation of a disabled student is so limited that it amounts to a significant change. This might involve telling a parent that:
- The student may not go on any field trip.
- The student has shorter school days.
- The student may not participate virtually.
- The student is excluded from extracurricular activities.
- The parent is threatened with negative consequences unless they agree to a change.
- The parent is required to be present at school to assist.
To determine whether informal discipline is problematic, the parent should look to documentation to determine the necessity of the exclusion. The nature and length of the exclusion are important—if it is narrow or short-term, it is less problematic. If it is broad and indefinite, it is more likely to trigger the need for safeguards under Section 504.
To determine whether a student's disability was related to misconduct allegations, the school must conduct a Manifestation Determination Review (MDR). Under Tennessee State Board of Education Rule 0520-01-09-.15(4), the school must give a parent at least 24 hours' notice of a Manifestation Determination review.
Manifestation Determination Review
To impose discipline on a disabled student, the school district must determine whether the behavior was caused by or substantially and directly related to the student's disability. This must be addressed before the imposition of discipline. Only a student who poses an “immediate threat” can be removed before the manifestation determination. This threat must be “serious and immediate” and cannot simply be based on conjecture.
If the student has an IEP, they probably had a prior evaluation of disability-based behavior. If not, behavioral issues may have been included in the 504 Plan. To determine whether a behavior is related to disability status, the school must also look to:
- Past evaluations related to behavior.
- Past discipline records.
- Prior evaluations of disability-related behaviors.
- Expert opinions or input.
After reviewing these materials, the team may find that it has failed to provide the necessary services or support. A principal cannot do this alone—the person making this type of determination must be qualified or advised by other qualified people.
- 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 Tennessee, the school must address the behavior issue through a functional behavior assessment (FBA). This should lead to a behavior plan that addresses the misconduct.
If the behavior violates a school code of conduct, the student may need:
- More services or supports.
- Modification or accommodations of policies.
- A change of settings.
- More extensive behavioral supports.
- Expanded services, such as more frequent counseling or other interventions.
- Other creative ways of addressing the needs of the student.
Of course, the disabled student is not educated in a bubble but around other students. A disabled student may not threaten other students or negatively affect other people's learning environments. A more restrictive environment might be needed if a student cannot be educated in a regular classroom. However, 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. In Tennessee, the school may discipline the student, but the student must continue to receive services during any period of removal.
- Current Drug or Alcohol Use In School.
One notable exception to the need for a manifestation determination is current substance abuse on school property or during school activities. The student has some protections if the student has:
- Recently completed rehabilitation.
- Is participating in rehabilitation.
- Did not use alcohol or drugs at school activities or functions.
- Appeals.
- parent may appeal an MDR by requesting a due process hearing under 34 C.F.R. § 300.532(a), which will be held in Tennessee within 20 school days.
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.
- Removing distractions.
- 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.
Unnecessary Different Treatment
If a student's behavior is not based on disability, the school cannot treat the student differently than similarly situated peers. An example of this is using corporal punishment or restraint against disabled students while not using it against students without disabilities. This type of treatment may be based on stereotyped ideas about a particular disability or generalizations about disabled people.
If the school district treats a student with a disability differently, they must give an explanation or reason based on facts and evidence. The legal system considers this a “legitimate, nondiscriminatory reason.” This reason may be a pretext when discrimination against your student is the actual motivation. Call the Lento Law Firm immediately if your student faces an unnecessarily different discipline.
Discriminatory Effects of Neutral Policies or Practices
Sometimes, a policy or procedure may seem neutral, but it discriminates against students with disabilities. If a school advocated a policy of absolute quiet time between 10 and 12 daily, some students with disabilities couldn't comply. Without modification and accommodation, the school would discriminate against any student who cannot remain quiet for two hours because of disability. So, discrimination issues can be complicated for school-aged students; if in doubt, remember to contact an experienced attorney. Call the Lento Law Firm if you have questions on discrimination or any other issue related to your student.
Discipline of College Students
As your student enters college, the laws protecting them from disability discrimination change. Section 504 and the Americans with Disabilities Act (ADA) govern the discipline of college students with disabilities. To be covered by these laws, a student must be disabled and otherwise qualified.
A student is disabled if they have an impairment that “substantially limits one or more major life activities.” This may involve:
- Mobility impairments.
- Learning disabilities.
- Physical or mental illness.
- Neurodivergence or ASD.
Major life activities are quite broad under this law and include activities highly relevant to the college environment:
- 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 the degree or college program to be covered by ADA protections. This area often presents the greatest difficulty for disabled college or university students. Colleges or universities may argue that a student is not otherwise qualified to meet a program's or degree's standards. These arguments are often without substance, but it can be difficult for a student to present this evidence without an experienced attorney.
Discipline at the College Level
College students have fewer protections than primary and secondary students, 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 might mean interpreters, assistive technology, note-taking apps, or assistance. It might also mean significant policy changes, such as:
- Allowing service animals.
- Allowing substitution of courses.
- Virtual attendance.
- Expanded time for testing.
- Attendance variations.
- Outlines of lectures in advance.
- Single dorm rooms or quiet buildings.
- Other accommodations, as needed.
If a student faces discipline at the college or university level and has not had these types of accommodations, the school is vulnerable to a complaint of discrimination. The first step is disability services at the college or university. The university must be informed of the disability, and they will ask for a physician's letter or other proof. Once you have established that you are entitled to modifications and accommodations, it's time to address how to improve the situation. This may involve your attorney presenting your disability as a defense before or during a due process hearing.
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. Your answer to these charges and the due process hearing are your opportunity to present your side of the story and your defense. Your attorney will negotiate with the university before the due process hearing and assist as you prepare for the hearing. Your attorney will:
- Assist in preparing an answer to the proposed discipline.
- Help investigate your defenses.
- Negotiate with the university regarding your defenses and the role your disability may have played in the alleged misconduct.
- Represent you at the hearing or an appeal, if necessary.
Complaints for Disability Discrimination for School or College Students
Sometimes, despite your best efforts, filing a complaint or grievance is necessary to secure your rights. In Tennessee, a school-aged student may file a grievance with the Office of General Counsel of the Tennessee Dept. of Education. 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. To decide how to pursue a claim for discrimination based on disability or an appeal, the first step is to call the Lento Law Firm and develop a strategy.
The Lento Law Firm Student Defense Team Can Help
If you are a student, parent, or guardian facing discipline, the Lento Law Firm can help. We are experienced education attorneys who assist Tennessee students with disabilities in defending against misconduct allegations. We also represent all sorts of college undergraduates as they defend against academic, sexual, or other misconduct allegations. Whether you are from Nashville, Memphis, Chattanooga, or elsewhere in Tennessee, 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.
