Students with disabilities are more likely to face discipline than their nondisabled peers. While both federal and New York laws have protections for students with disabilities, these policies and regulations don't always work.
In New York State, slightly less than 500,000 students qualify for special education services. Nineteen percent of students attending New York public schools are classified as students with disabilities, which is higher than the national average.
Students with disabilities, whether in preschool or graduate school, face numerous challenges as part of their education. They not only require special education services, but they also have to face stereotypes about disabilities. This includes the wrong idea that having a disability means a student isn't academically gifted or capable of succeeding in school.
For these students, facing unequal enforcement of disciplinary codes is just one more roadblock. These roadblocks, however, can have serious long-term consequences. They can affect a student's reputation and their opportunities, to say nothing of hurting their education.
If you or your student is facing disciplinary action that relates to a disability, the Education Law Team at the Lento Law Firm can help. Whether this issue relates to academic problems, student code violations, or Title IX charges, we work with our clients to help build cases that demonstrate how disabilities and disciplinary actions can intersect. Call us at 888-535-3686 or fill out an online form.
Disproportionate Discipline
Students with disabilities are more likely to face disciplinary action than their nondisabled peers. They're also more likely to drop out of school and not graduate.
The majority of statistics on the relationship between disabilities and discipline comes from the K-12 years. This is in part due to the Individuals with Disabilities Education Act (IDEA) requiring the federal government to keep track of disciplinary actions against K-12 students.
In one report, students with disabilities accounted for 25 percent of school suspensions and 23 percent of expulsions. They made up only 13 percent of the overall student body.
The U.S. Department of Education released guidance on how to discipline students with disabilities. New York State, this report with one that focused on the issue within the state.
What is known about college and university students is often anecdotal and rarely relates to discipline. College students say that current disability laws are insufficient to address the needs of college students with disabilities. Statistics that are known include:
- Only one-third of students with disabilities who start college graduate within eight years.
- Students with disabilities are more likely to drop out of college because of academic problems, lower social integration, not disclosing that they have a disability, and insufficient accommodations.
College and graduate students are also unlikely to report their disability to their school. This not only deprives them of needed support but also makes it harder to accurately track how they do in college.
Uniform Enforcement
Requiring schools to consider a student's disability when making decisions about discipline or other issues isn't about giving certain students special treatment. It's not saying that students with disabilities should be exempt from disciplinary actions.
The purpose of including a student's disability is that it's part of the situation. Events need to be understood in context. There's a difference between pushing someone for no reason and pushing someone to get them out of the way of a speeding car.
Factoring in a student's disability is merely putting a situation into context. Just as accommodations don't give students an advantage, they merely help put all students on equal footing, and so does considering a student's disability, which puts all students on equal footing.
K-12 Students
IDEA applies to all children and teenagers before they graduate from high school. This includes early intervention services and support for K-12 students. Public schools must identify and assess all children who may have a disability.
If a student is found to be eligible under IDEA or Section 504 of the Rehabilitation Act of 1973, they have a right to either an Individualized Education Plan (IEP) or a 504 Plan. Ineffective accommodations or failing to implement needed support and services can increase the likelihood of a student having behavioral or other issues.
Functional Behavior Assessments and Behavior Intervention Plans
Closely related, Functional Behavior Assessments (FBA) and Behavior Intervention Plans (BIP) seek to provide context and understanding to a student's behaviors with the goal of improvement. If a student's behavior or actions impede their learning or other students' learning, schools may request an FBA.
An FBA should include multiple sources of data. It should not be based solely on a student's record of problem behavior.
Once the FBA is completed, it can be used as the basis for a student's BIP. New York explicitly prohibits the use of aversive interventions, seclusion, or physical restraints to address a student's behavior or actions.
What a BIP should include:
- The baseline measure of the student's problem behavior
- The recommended intervention strategies
- A timeline for determining if the intervention strategies are effective
Manifestation Determination
Manifestation determination is the process by which a school determines what role, if any, a student's disability played in their behavior or actions. New York emphasizes that “student presumed to have a disability for discipline purposes” means that a school was aware of a student's disability before the incident in question.
Manifestation determinations don't occur for every disciplinary incident. They must occur when:
- A student is suspended for more than ten consecutive days
- A student has been suspended for more than ten days in one school year
When a student is eligible for a manifestation determination, parents will meet with school officials to discuss the incident and any other relevant information. Topics that may be included in a manifestation determination meeting:
- Reviewing a student's IEP and/or 504 Plan
- Any relevant evaluations
- Teacher anecdotes
- Documents and reports related to the incident in question
The purpose of evidence and documents is to determine if a relationship exists between a student's behavior and their disability. These meetings should also include a review of the student's previous behavior to determine if there's any pattern of behavior.
If a team finds that a student's behavior or actions were the result of that student's disability, the team may require the student to undergo an FBA. If a student already has a BIP, the team should review and revise it as necessary to address the issue.
Focus on the Individual
To get an idea of how manifestation determination works in practice, The New York City Department of Education has a Manifestation Determination worksheet. Some of the subjects it touches on include:
- Does a student have an IEP or 504 Plan?
- Has a student undergone an FBA, and/or do they have a BIP?
- Is there a psycho-educational report?
- Is there a social history report?
- Any other relevant documents
Most of this should also include the date the documents were completed.
The NYC worksheet points out that, in considering manifestation determination, a team shouldn't focus exclusively on disability classification and generalizations. Instead, it should focus on the student and how that student provides evidence of specific characteristics of a disability.
Focusing on the individual student is key for manifestation determination. For example, while the characteristics of autism tend to differ between boys and girls, some girls may display more typically “boy” characteristics. Alternatively, a boy may have autism characteristics that don't align with generalizations about the disorder.
That a student has non-traditional characteristics of a disability may even help explain why manifestation determination applies in their situation. Parents and guardians should make sure that a school considers their specific student and does not go off general rubrics or descriptions.
Restraint and Seclusion
In 2023, New York's Board of Regents passed regulations designed to limit the use of restraint and seclusion in schools. The board also reaffirmed that corporal punishment is banned in all schools in New York.
Restraint refers to limiting a student's movement. Seclusion refers to isolating a student and not allowing them to leave. Advocates of these policies state that they're necessary for school safety.
Some of the 2023 changes to the law:
- Students cannot be restrained in a prone position or facedown
- Students cannot be isolated in rooms from which they're unable to leave
School staff is allowed to place students in a timeout. In a timeout, a student is removed from a classroom to calm down or have a moment, but they cannot be placed in a locked room or left unattended.
Both timeouts and restraints should be limited, however, to situations when a student is an imminent threat to the health and safety of themselves or others. Schools can no longer use these methods in response to property damage or to maintain order, both of which were previously allowed.
Schools must notify parents on the same day that the restraint or timeout occurred. If your child has experienced restraint, seclusion, or corporal punishment in school, contact the Education Law Team at the Lento Law Firm to learn about your options and how to proceed.
PBIS and MTSS
Instead of discipline, schools and educators are repeatedly looking at ways to provide behavioral support and training. Many of these problems are intended to be proactive rather than reactive.
Positive Behavioral Interventions and Supports (PBIS) look at ways to improve student outcomes. PBIS uses a three-tier system based on evidence and data. Tier 1 is for the entire school community, while Tier 3 is for students who require more specialized support in reaching their behavioral and academic goals.
New York's Every Student Succeeds Act (ESSA) includes support for students with disabilities. This includes implementing Multitiered Systems of Support (MTSS). Similar to PBIS, MTSS focuses on universally improved student outcomes and improving outcomes for students with disabilities through evidence-based practices. One of MTSS's goals is to increase responsiveness to all students' academic and behavioral needs. MTSS is an evidence-based approach to help students receive the level and type of support they need to succeed in school.
When your child is facing student discipline, one question to ask is whether a school has implemented programs such as PBIS or MTSS. Such programs are intended to reduce behavioral problems and related issues.
College and University Students in New York
For students with disabilities, one of the biggest adjustments when moving from high school to college is how support changes. Under the Americans with Disabilities Act (ADA) and Section 504, schools must still provide services and support to students with disabilities, but IDEA no longer applies.
Undergraduate and graduate students are responsible for both informing the school of their disability and requesting services. Unlike K-12 schools, colleges and universities have no obligation to identify or test students who may have disabilities.
The majority of college and university students in the United States don't let their schools know they have a disability. By deciding not to inform their school about their disability, students lose access to accommodations, services, or academic support.
One reason for this silence is that students may not want to risk being viewed as unable to handle the rigors of postsecondary education. Students may fear that they won't be viewed as intelligent enough.
Although likely unintentional, the CUNY Disability and Accessibility Services' FAQ highlights one reason why students hesitate to request disability support. The FAQ, when addressing potential questions asked by faculty, includes a question about whether students with disabilities have an unfair advantage as a result of accommodations. The answer is no. Accommodations merely attempt to put all students on equal footing. That the question was even thought necessary to include, along with suggesting that accommodations related to a student's disability might give a student an advantage, highlights why students may hesitate to disclose their disability.
This lack of informing a school about a student's disability can create additional challenges. If and when a student has to face issues with academic issues, code of conduct violations, or Title IX allegations, it can be difficult to explain how that relates to a student's disability.
A student may unintentionally set up the idea that they only felt the need to inform a school about their disability to avoid getting into trouble. In New York, one of the requirements for manifestation determination at the K-12 level is that a school has some previous knowledge of a student's disability.
Put another way: A student who isn't receiving the accommodations they need is more likely to struggle. That struggle could result in poor grades or academic probation.
If and when the student does disclose their disability, even if the school agrees that their disability relates to the issue, a student has still likely lost weeks if not months of progress toward their diploma. And that's assuming a college or university is willing to consider a previously undisclosed disability.
Protect Disability Rights in Education
Disability rights for students should include the right to a uniformly applied disciplinary system. Unfortunately, for too many students, discipline remains a two-tiered process, and students with disabilities are singled out.
If you or your child is facing disciplinary action that relates to your disability, you have options for addressing the issue. The Education Law Team at the Lento Law Firm can help you navigate the situation and protect your education and your future. Call us at 888-535-3686 or fill out an online form.
