All students have the right to attend school without fear. Students also have a right to have fair academic policies that discourage cheating and other practices that undermine education. Schools can and should discipline students who violate academic codes of conduct, honor codes, and school policies.
The problem is that these policies aren't always uniformly enforced. For a variety of reasons, students with disabilities are more likely to face disciplinary action. Unfortunately, schools may fail to consider a student's disability when considering disciplinary action or unfairly discipline a student due to their disability.
Student misconduct may also be a symptom rather than the main problem. Ineffective special education services and outdated educational programs can increase the likelihood of disciplinary issues. In these situations, students are potentially punished for circumstances beyond their control.
The Education Law Team at the Lento Law Firm appreciates that, for students with disabilities, disciplinary proceedings, whether they're related to academics, student code violations, or Title IX charges, are about much more than one event. A failure to consider the larger context or how a student's actions resulted from previous failures on the school's part can have serious repercussions for students.
We work with students and their families nationwide to protect their right to an education and fair disciplinary procedures. Call us at 888-535-3686 or fill out an online form.
Disproportionate Discipline
Students with disabilities are more likely to face discipline than their nondisabled peers. While statistics are readily accessible for K-12 students, determining how discipline proceedings affect college and graduate students with disabilities can be more difficult to determine.
As part of the Individuals with Disabilities Education Act (IDEA), the federal government tracks disciplinary actions taken against K-12 students with disabilities. Research indicates that students with disabilities are more likely to face school discipline. Data from one school year found that K-12 students with disabilities accounted for 13 percent of the total student population but 25 percent of school suspensions and 23 percent of expulsions.
In 2022, the U.S. Department of Education released a report on reducing the use of discriminatory discipline against students with disabilities. The report highlights that school safety and protecting the rights of students with disabilities aren't mutually exclusive.
Statistics on disciplinary action at the college and university level are more difficult to find. Unlike K-12 schools, colleges and universities have fewer reporting requirements and have more latitude in setting their codes of conduct and discipline policies. What is known is that students with disabilities are not only less likely to attend college, they're also less likely to graduate than their non-disabled peers.
A New Jersey Division on Civil Rights report indicates that the state aligns with national statistics. In K-12 public schools, students with disabilities are almost twice as likely to be disciplined as their nondisabled peers.
Zero Tolerance
A report by the New Jersey Council on Developmental Disabilities points out that, beginning in the 1990s, many schools adopted zero-tolerance policies to protect student safety. Research and anecdotal evidence show that zero-tolerance policies don't increase school safety.
What they do increase is inconsistency in school discipline, and students with disabilities are one of the groups most likely to be affected by these policies. Zero-tolerance policies don't decrease student misbehavior but do increase the likelihood a student will face disciplinary action.
Schools may use “safety” to justify any disciplinary action. They may suggest that failing to punish a student hurts school safety despite decades of evidence pointing to the opposite conclusion.
Shouldn't All Students Be Treated the Same?
In disciplinary actions, all students should be treated similarly. The problem is that many current policies put students with disabilities at a disadvantage. Schools may not factor in a student's behavioral issues or how a lack of effective special education support and services can skew events against a student with disabilities.
Having a disability isn't a get-out-of-jail-free card. It doesn't provide blanket immunity. The problem is that students with disabilities face disciplinary actions in situations when their nondisabled peers wouldn't.
Just as providing accommodations and modifications to assist a student's education doesn't lessen the work they do or the end goal, neither does providing accommodations during discipline hearings. A student with a neurodivergent disorder may require an advocate during hearings or more breaks to avoid being overwhelmed during a hearing or meeting.
K-12 Students
IDEA and Section 504 of the Rehabilitation Actare the primary laws governing disability rights for K-12 students. This includes Individualized Education Plans (IEPs), which can include information on how to handle student misconduct, such as a Behavior Intervention Plan (BIP).
Manifestation Determination
Manifestation determinations are a defense against disciplinary action. The goal of a manifestation determination is to prevent a school from punishing a student for being disabled.
The two key questions to ask when considering manifestation determination:
- Was a student's behavior related to or caused by their disability?
- Was a student's behavior the result of a school failing to implement part of a student's IEP or 504 Plan?
If the answer to either of these questions is yes, then manifestation determination should apply. Parents may also wish to pursue this avenue if a school declined to assess a student, an assessment was insufficient, or a school rejected providing certain services. The Education Law Team at the Lento Law Firm can help families determine what evidence is relevant for a manifestation determination.
Not all disciplinary actions require a manifestation determination. Meetings must occur when students are suspended for more than ten consecutive days, for more than ten days total during a school year, or when they may be expelled.
When behavior is a manifestation of a student's disability, a school may not:
- Suspend or remove the student
- Change the student's program, school, and/or placement without permission from parents
What schools can do is request to meet with parents to revise a student's IEP and/or review any BIP. If a student doesn't have a BIP, the student may undergo a functional behavioral assessment (FBA) to develop a BIP.
If a school determines that a student's actions or behavior weren't a manifestation of their disability, if appropriate, a school may review the student's BIP or have the student undergo an FBA.
Restraint and Seclusion
Two disciplinary practices under scrutiny are restraint and seclusion. In 2018, New Jersey enacted a rule that limits restraint and seclusion to situations when a student with disabilities presents an immediate danger to themselves or others.
The state defines these practices as:
- Physical restraint immobilizes or reduces students' ability to move all or part of their bodies
- Seclusion is the involvement confinement of a student, either alone in a room or area, from which the student cannot leave
- New Jersey excludes timeouts from seclusion policies
- Timeouts are a monitored “behavior management technique” that places a student in a non-locked area to help them calm
NJ doesn't define mechanical restraint, which involves the use of any device or equipment to restrict a student's movement. The state relies on the U.S. Department of Education definition.
The 2018 New Jersey law doesn't require schools to report statistics on restraint and seclusion. While the federal government does track these numbers, numerous incidents have shown that schools underreport these numbers and continue to use these practices.
One New Jersey family learned that their preschooler was wearing ankle weights during school. The parents hadn't been informed of this practice.
If you know or suspect that your child's school is using seclusion or restraint to discipline your child, contact the Education Law Team at the Lento Law Firm immediately.
NJ PBSIS
Over the past several years, numerous studies have shown that discipline is ineffective in correcting behavior and improving long-term outcomes. Recognizing that students benefit from positive behavior training, the New Jersey Department of Education Office of Special Education teamed with The Boggs Center, Rutgers Robert Wood Johnson Medical School.
The purpose of this collaboration is to implement multi-tiered systems of support for behavior, conduct, and social-emotional wellness through the New Jersey Positive Behavior Support in Schools (NJ PBSIS) program.
Multi-tiered systems of support (MTSS) acknowledges the whole-child approach to education and that education is more than a single learning path and that each student requires different levels and types of support. The goal is to provide students with the best possible educational and social-emotional outcomes. These programs are also intended to reduce disciplinary action, especially for students with disabilities.
The goal of NJ PBSIS is to foster learning environments where all students:
- Feel safe emotionally, physically, and socially
- Experience daily success
- Have the support they need to succeed
- Are valued members of the school community
- Can develop their strengths
- Work together to achieve goals
The program, which dates to 2003, provides annual training at no cost to schools or staff.
The New Jersey Tiered System of Support has three tiers:
Tier 1: Universal Supports
Tier 2: Targeted, Small Group Interventions
Tier 3: Intensive Interventions
When a K-12 student faces disciplinary action, questions to ask include:
- How the school is implementing tiered systems of support
- How the school is using behavioral support and training to improve student behavior and decrease disciplinary incidents
If a student's behavior or actions could have been avoided through the use of MTSS, the question becomes why a student should be punished for a school's failure to implement these policies.
College and Universities
College students are generally expected to be more proactive than K-12 students. They're responsible for working with colleges and universities for any accommodations. While schools must still provide disability accommodations, schools have more flexibility in establishing policies and procedures.
Despite laws protecting students with disabilities dating back over half a century, formalized disability support in college is less established than in K-12 schools. Princeton University's Office of Disability Services was established in 2006. Rutgers University announced an expansion of services for students with ADHD and autism in 2023.
As an article in The Daily Princetonian points out, attending college with a disability is a constant fight for accommodations. In the past decade, Princeton has seen a significant increase in the number of students with disabilities, although the university declined to provide exact numbers.
College students with disabilities graduate at a lower rate than their nondisabled peers. That a school is complying with the Americans with Disabilities Act and Section 504 isn't necessarily sufficient to properly support students with disabilities. Add in claims of misconduct, and students with disabilities face an uphill battle in navigating the disciplinary process.
The Silent Majority
The majority of college students don't inform their school of their disability. This not only deprives them of potentially needed accommodations and support, but it may make any disciplinary issues more difficult to resolve favorably for the student.
Schools only need to provide accommodations for students who submit the necessary paperwork and documentation. Unlike K-12 schools, colleges and universities don't have an obligation to identify students with disabilities. If a student hasn't disclosed a disability before being accused of misconduct, in some situations, they may have a more difficult time establishing the relationship between the misconduct accusations and their disability.
Where to Seek Help
When a student learns that they're being accused of misconduct, they should consider first going to their school's disability services center for assistance. Staff members may be able to help a student request accommodations for the process and how the charges may relate to a student's disability.
One caveat is that students shouldn't assume a college or university's disability office staff is on their side. These staff members are generally employees of the college, and what's best for a student may not always align with what's best for the college or the staff member. While a disability support office can be a good resource, there's generally no expectation of confidentiality. A staff member may be required to report what a student told them.
Moreover, staff members are generally trained to help with disability support, not disciplinary issues. Beyond helping a student secure accommodations as part of the disciplinary process, handling disciplinary issues is generally beyond that office or department's responsibilities.
Undergraduate and graduate students with disabilities need an advocate, someone whose interest is solely on protecting their right to an education, helping them navigate the disciplinary process, and explaining how their disability informed their actions. The Education Law Team at the Lento Law Firm advocates for our clients, helping them understand their options and assemble the evidence.
Protect Your Education
If you or your child is facing disciplinary action as a result of a disability, you need to focus on protecting your education and future. Disciplinary proceedings can have ripples that reach far into the future, and no student should be punished for their disability. Call us at 888-535-3686 or fill out an online form.
