Students with disabilities generally have a harder road to travel to succeed in school and graduate. One reason for this is that they're more likely to be subjected to discipline. Teachers and other staff may not know or appreciate how a disability can affect a student's behavior. Students with disabilities may be punished because of their disability.
Disciplinary policies should be uniformly enforced but are often used to target students with disabilities. Many disciplinary actions are punitive and do nothing to address the underlying problems.
In a worst-case scenario, a student with disabilities is continually singled out and punished without receiving the support they require to change. In these situations, students are trapped in a downward spiral and may be unfairly labeled as a problem.
Ineffective or insufficient special education services or assessments can hinder students of all ages. Concerned about the unfair and inaccurate stigma that often attaches to disabilities – especially regarding academic achievement – college and university students may hesitate to request the support they need.
Whether a student with disabilities is struggling with academic problems, student code violations, or Title IX charges, the Education Law Team at the LLF Law Firm understands that disciplinary issues are often much more complex and nuanced than traditional disciplinary methods allow. Throughout Virginia and nationwide, we work with students of all ages and their families to protect students' rights in education and disability.
No student should face discipline because of their disability. Call us at 888-535-3686 or fill out an online form.
Disproportionate Discipline
The research on the relationship between disabilities and discipline is largely limited to the K-12 years. This is in part due to the Individuals with Disabilities Education Act (IDEA), which requires that the federal government keep track of disciplinary actions against K-12 students.
Research shows that students with disabilities are consistently more likely to face disciplinary action compared to their non-disabled peers. For example, in one school year, students with disabilities made up 13 percent of the overall student population but 25 percent of school suspensions and 23 percent of expulsions.
In response to this disparity, the U.S. Department of Education released guidance on how to reduce incidents of discriminatory discipline against students with disabilities. If and when a K-12 student is facing school discipline, parents and guardians may wish to inquire about how the school has incorporated the Department of Education's report.
Statistics on disciplinary issues for undergraduate and graduate students are harder to find. This is in part due to colleges and universities having fewer reporting requirements. Beyond following laws such as the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, colleges and universities have considerably more latitude in both their disability services and disciplinary actions.
What is known about postsecondary students with disabilities:
- They're less likely to attend college
- They're less likely to graduate
- The majority of students don't inform their college of their disability
This last point highlights both the challenges facing undergraduate and graduate students and the difficulty in gaining accurate statistics on student school and discipline.
Equal Treatment
One misconception about disabilities and discipline is that families are asking for special treatment for students with disabilities. Having a disability isn't a free pass for a student to do whatever they want.
The concern is that disciplinary policies aren't uniformly or consistently enforced against students with disabilities. These students are instead at a disadvantage.
When a school fails to provide a student with reasonable, effective accommodations or doesn't understand how behavioral or neurological issues can affect a student, a school makes it more likely that students may run afoul of a school's disciplinary procedures.
Think of it like giving someone a car without a steering wheel and then being shocked when they crash on a turn. Asking for compassion and understanding for students with disabilities is akin to saying that every driver should have a steering wheel.
Or, continuing with the car comparison, there's a difference between a driver who gets into an accident because of a medical emergency versus one who was deliberately driving recklessly. We wouldn't expect these two drivers to be treated the same, and that's why a student's disability should be a consideration in disciplinary proceedings.
K-12 Students in Virginia
The two primary laws that govern disability rights in education are IDEA and Section 504. The majority of students will qualify under IDEA, which means they have a legal right to an Individualized Education Plan (IEP). A student's IEP may include a Behavior Intervention Plan (BIP).
Manifestation Determination
A manifestation determination is a process that reviews a student's behavior or actions to determine whether there is a connection to their disability. Schools don't have to use a manifestation determination in every case of student discipline.
Schools must conduct a manifestation determination when they want to change a child's placement, a child is suspended for more than ten consecutive days or more than ten days in the same school year, or a child is facing expulsion. Interim placements of less than 45 days do not trigger a manifestation determination meeting.
In other words, if a school suspends a student for nine days, they don't have to schedule a manifestation determination meeting. If, however, that same student is suspended for two additional days later in the same school year, a school must conduct a manifestation determination meeting, even if the second suspension is for a different reason.
When a manifestation determination is required, that meeting must occur within ten days. Parents or guardians, along with any relevant member of a student's IEP team, will meet to review whether:
- A student's conduct was caused by, or had a direct and substantial relationship to, that student's disability
- A student's conduct was the direct result of a school failing to implement the student's IEP
If the answer to either of these questions is yes, the school must address how to correct these issues.
In situations when manifestation determination doesn't apply, families may still request a meeting with the school. IDEA allows parents to request revisions to their student's IEP at any point during the school year. This may include revising or adding a Behavior Intervention Plan (BIP) to a student's IEP.
BIPs and FBAs
In 2010, Virginia added definitions of Functional Behavioral Assessments (FBA) and Behavioral Intervention Plans (BIP) to its special education laws. The purpose of FBAs and BIPs is to address behavioral issues.
Schools must conduct an FBA and create a BIP after a student is subjected to disciplinary action that is found to be a manifestation of the student's disability. IEP teams may choose to conduct an FBA and implement a BIP if a student's behavior is affecting their or other students' ability to learn.
FBAs are a process for determining the underlying reasons for a child's behavior. These assessments may include reviewing existing data, or an IEP Team may decide additional evaluation is needed.
BIPs will usually follow FBAs. They use positive behavioral interventions and supports to address and improve a student's behavior.
Seclusion and Restraint in Virginia
In 2019, a story broke that, despite Fairfax County Public Schools reporting no use of seclusion or restraint, hundreds of children were isolated or restrained. Children as young as six were subjected to these discipline procedures. More than one child was confined at least 100 times in a school year.
While Fairfax's policy stated that seclusion and restraint were a last-resort disciplinary measure, students' parents felt the district's use of these practices was regular and often a first resort. In at least three school years, Fairfax reported zero cases, but documents showed that wasn't the case.
Seclusion means that a school isolates or confines a student. Students are generally unable to leave.
Restraint may be physical or mechanical. It occurs when a student is either partially limited in their movements or immobilized.
Seclusion and restraint remain an issue, especially for students with disabilities. Officially, Virginia limits the practice while allowing narrow exceptions. Schools may use restraint and/or seclusion when a school staff member has a reasonable belief that other interventions or methods would be ineffective and a student is a danger to themselves or other members of the school community.
Virginia law gives school staff considerable latitude in determining what is a reasonable use of restraint and seclusion. If you believe your student has been subjected to either, contact the Education Law Team at the LLF Law Firm.
Zero Tolerance Policies
Beginning in the 1990s, many school districts, including several in Virginia, adopted zero-tolerance policies for school discipline. By one metric, approximately 62 percent of public schools have zero-tolerance policies. These policies encourage severe disciplinary actions for even small infractions based on the idea that this position will deter misbehavior.
The problem is that these policies aren't effective and don't make schools safer, and some of the current models are also ineffective. Henrico County Public Schools discarded its zero-tolerance policies in 2015 in favor of behavioral intervention strategies. In 2023, however, it was reported that the district had seen a 24-percent increase in negative behavior compared to 5 years before.
In practice, zero-tolerance policies are less than effective, but continue to be used out of the idea that they create safer schools. They don't, but students with disabilities may end up labeled as a danger to the school or in need of severe disciplinary action in the name of school safety.
Positive Behavioral Interventions and Supports
Some schools have adopted Positive Behavioral Interventions and Supports (PBIS) as one way to support students with academics and help improve behavioral issues. Less about any specific curriculum changes, PBIS is an evidence-based approach that is more about altering a school's attitude and approach to discipline.
Newport News Public Schools has implemented PBIS in 20 schools and the district's early childhood centers. The district receives support from the Virginia Department of Education, the College of William and Mary, and Old Dominion University Training and Technical Assistance Centers.
Multi-Tiered System of Supports
Another alternative to increase student outcomes is Multi-Tiered System of Supports (MTSS). The goal of MTSS is to provide data-backed, targeted support to students who are having academic or behavioral issues.
The Virginia Department of Education provides support for schools that implement MTSS. The program, known as VTSS, has the following goals:
- Aligned organizational structure
- Data-informed decision-making
- Evidence-based practices
- Family, school, and community partnerships
- Monitoring student progress
- Evaluating outcomes
Prince William County Public Schools is one of the districts that has implemented MTSS / VTSS. The district states that its overarching goal with this program is to assist students who are struggling, as well as all students with academic, behavioral, and social-emotional wellness supports.
PBIS and MTSS are just two of the programs being used to address student discipline. During IEP meetings or other meetings with school staff, parents should inquire about the school's disciplinary policies as well as what behavioral support schools provide to help resolve behavioral issues.
College and University Students in Virginia
Once a student enters college, IDEA no longer applies. The two disability laws that do apply, ADA and Section 504, don't require schools to seek out or identify students with disabilities or potential disabilities. This leaves the burden on students.
Virginia's State Council of Higher Education for Virginia lists resources for colleges and universities throughout the state. What these resources rarely address is the intersection between disabilities and discipline on college and university campuses.
Old Dominion University's Office of Educational Accessibility points out that students have the responsibility to self-advocate and disclose their disability to the school. Disability Services Offices on college campuses generally focus on providing accommodations for students. Most don't address the possibility of students with disabilities being subjected to unequal enforcement of disciplinary and academic codes of conduct.
Seeking Help and Support
When an undergraduate or graduate student faces disciplinary action or accusations under Title IX, one of the challenges is finding someone who can help them navigate the process. Disability Service Offices are generally college departments, and students shouldn't expect them to be advocates. What's best for a student in disciplinary matters may not align with what's in the best interests of the college or college employees.
Students may face an additional obstacle if they haven't informed a school of their disability before the incident in question. Even if a school is unaware of a student's disability, that doesn't mean a disability didn't play a role in an incident or that a student is being unfairly disciplined.
If and when a student is facing disciplinary action of any type, they need an advocate, someone who can help them understand their options and determine the best way to proceed. College disciplinary actions can have serious consequences not just on a student's education but also on their future and career. The Education Law Team at the LLF Law Firm assists our clients in understanding their options and building a case to help protect the work they've done and their goals.
Protect Your Education and Your Future
Schools should be safe. Students should be in educational environments that allow them to focus on learning. Schools can and should discipline students who seek to hurt other members of the school community or undercut academic codes. The problem is when these actions are applied unevenly and single out students with disabilities.
Students with disabilities have a right not only to the accommodations and services they require to succeed in school but also equal treatment as their nondisabled peers. If you or your student is facing disciplinary actions as a result of a disability, the Education Law Team at the LLF Law Firm can help. Call us at 888-535-3686 or fill out an online form.
