Students with disabilities are more likely to face discipline in school than their nondisabled peers. Lack of reasonable accommodations, failure to implement a student's IEP, and failure to understand how a student's disability can affect behavior are just three of the reasons why students with disabilities are more likely to face school discipline.
All students should be protected from disability-based discrimination. Unfortunately, statistics for K-12 students show that isn't the case when it comes to discipline. The problem is significant enough that, in 2022, the U.S. Department of Education released guidance on how to discipline students with disabilities.
College and university students with disabilities are often an invisible minority. They may hesitate to inform a school of their disability, and no statistics exist on whether undergraduate and graduate students with disabilities are more likely to be subjected to disciplinary action or misconduct allegations than their nondisabled peers.
Federal law states that students with disabilities have a right to accommodations and support that allow them to access and benefit from their education. Inconsistently applied policies and a lack of understanding of the connection between disabilities and discipline may result in a student being indirectly denied the benefits of that education.
If you or your student is facing misconduct allegations at school, the Education Law Team at the Lento Law Firm can help. We understand the role that disabilities play in education and believe that, with the right support, disabilities shouldn't derail a student's educational goals. Call us at 888-535-3686 or fill out an online form.
K-12 Students with Disabilities in Alabama
Families of K-12 students with disabilities are likely familiar with the role the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act of 1973 play in requiring services and accommodations. They're likely also familiar with Individualized Education Plans (IEPs) and 504 Plans.
For disciplinary issues for students with disabilities, manifestation determination, functional behavior assessments, and behavior intervention plans all play an important role. Parents and guardians should also be familiar with the use – and misuse – of restraint and seclusion.
Manifestation Determination
Schools must consider what role a student's disability plays in their misconduct. Alternatively, manifestation determination may apply if a student's misconduct is the result of a school failing to implement a student's IEP or 504 Plan.
Schools don't have to conduct a manifestation determination meeting for all situations involving student misconduct. These meetings occur when:
- A student is suspended for ten consecutive days
- A student has been suspended for more than ten days during the current school year
- A school district is considering expulsion
Parents and school staff will decide who attends the manifestation determination meeting. During the meeting, parents and school staff will discuss:
Whether the misconduct was a manifestation of the student's disability and/or if the misconduct was a result of the school not implementing a student's IEP or 504 Plan
Review all relevant information about the incident(s) in question, the student's file, any teacher or staff observations, and any information that parents provide
Manifestation of a Disability
If a student's behavior is found to be a manifestation of their disability, the next steps depend on what was found during the meeting. If, for example, a student's misconduct relates to a school's failure to implement their IEP or 504 Plan, a school must take steps to correct the mistake.
Alabama makes public its document for manifestation determination reviews. Parents and guardians may wish to look over the document before a meeting to familiarize themselves with its contents and have an idea of what questions to ask during the meeting.
A student will return to their previous educational placement. The exception is if parents and school staff agree that a different placement is needed.
A school must conduct a functional behavior assessment (FBA) unless one has been conducted in the previous 18 months. Following the FBA, a school must either create or revise a behavior intervention plan for a student.
Not a Manifestation of a Disability
If a student's misconduct is found to not be a manifestation of their disability, they'll be subjected to the same disciplinary procedures as any student. Any disciplinary action a district takes must be of the same severity and duration as they would provide to a nondisabled student.
Students with disabilities must still receive educational services and support during any disciplinary action. They must still be able to progress to their IEP goals and participate in the general education curriculum.
Put another way: Schools cannot withhold special education services as a disciplinary action.
In some cases, even if manifestation determination doesn't apply, school staff and parents may still agree that a student needs a functional behavior assessment.
When Manifestation Determination Doesn't Apply
In certain situations, schools can move a student to an interim or alternative educational setting for up to 45 days. In these special circumstances, the role a child's disability played in their behavior is irrelevant.
- A student brings a weapon to school, on school grounds, or at a school foundation
- A student knowingly possesses, uses, sells, or solicits the sale of illegal drugs or controlled substances while at school, on school grounds, or at a school foundation
- A student has inflicted serious bodily injury on another person while at school, on school grounds, or at a school foundation, and a serious bodily injury means:
- A cut, abrasion, bruise, burn, or disfigurement;
- Physical pain
- Sickness
- Impairment of the function of a bodily member, organ, or mental faculty
- Any injury to a body, no matter how temporary
While these special circumstances limit the use of manifestation determination, students and families may still question the events and a school's evidence. For example, a student who unknowingly brings drugs to school shouldn't qualify under these special circumstances.
Students and families don't have to simply accept a school's version of events or decisions, especially if they believe the school is ignoring key evidence or using these special circumstances to minimize a student's due process rights.
The Education Law Team at the Lento Law Firm can help families facing these special circumstances. If your child is facing an alternative school placement or is otherwise being deprived of a manifestation determination meeting, we can help.
FBAs and BIPs
A functional behavior assessment (FBA) is an evaluation that identifies behavioral issues in students. The goal of an FBA is to better understand a student's behavior to improve it. They are often used after a manifestation determination meeting, but schools or parents may request them at any point when a student's behavior is an issue.
Following an FBA, a student should receive a behavior intervention plan (BIP). A BIP uses what was learned during an FBA to address the issue and improve a student's behavior. Similar to an IEP, a BIP lays out the support a student requires as well as goals.
FBAs should use a variety of data. This can include observation, school records, direct and indirect assessments: Anything that might provide information on the causes or reasons for a student's behavior. While student misbehavior may have a single cause, it's more likely to have multiple causes or a trigger.
Once the data is assembled, a school should analyze it. Most behavior falls into two categories: to avoid something or to get something. An FBA should identify which category a student's behavior falls into as well as:
- The intensity of the behavior
- The frequency of the behavior
- The duration of the behavior
- Any specific patterns
A FBA should have a hypothesis for the reasons or foundation underlying a student's behavior. It should also suggest a replacement behavior or other ways to shift a student's behavior in a positive direction. Families can view a template of a Functional Behavioral Assessment / Behavioral Intervention Plan.
Based on the information and analysis gained from the FBA, a school should create a BIP. The Alabama State Department of Education recommends the following for a BIP:
- View BIPs as lesson plans for replacement behaviors
- Include appropriate evidence-based practices
- All BIPs should be tailored to the individual student and that student's unique needs
- Include realistic interventions and positive behavioral strategies and support
Parents may also wish to meet with a school to discuss how a BIP will work in conjunction with a student's IEP or 504 Plan. These documents should all work together, and some IEPs or 504 Plans may need revision once a student has a BIP.
Seclusion and Restraint
The practices of seclusion and restraint as ways to address student misconduct have come under increasing scrutiny. Rather than reduce student misbehavior, the two practices can leave students afraid of going to school and don't address the underlying behavioral issues.
Students with disabilities are more likely to be subjected to both of these disciplinary methods. The use of these two methods against students with disabilities may amount to discrimination against students with disabilities.
Restraint refers to limiting a student's movement. It can be done either chemically, mechanically, or physically.
Seclusion refers to isolating a student in a room or other space from which they cannot leave. This area will often be locked.
Physical Restraint Exceptions
Alabama bans the use of restraint and seclusion in schools with limited exceptions. Schools may use physical restraint when a student presents a danger to themselves or other members of the school community. It cannot be used as a form of discipline or punishment, and schools can only use physical restraint when other behavioral interventions and de-escalation techniques haven't worked.
Schools must have written policies in place about the training, notification, and use requirements for when staff may use physical restraint. Schools must provide a copy of this policy to families.
Time-Outs
The ban on seclusion doesn't include time-outs or de-escalation techniques. In-school suspension, detention, and student-requested breaks may be in a separate room, but that room must be unlocked.
Time-outs refer to temporarily removing students from a school activity as a method of behavioral intervention. Schools may use time-outs when:
- The location is unlocked with appropriate light, ventilation, and heating or cooling
- The length of a time-out must be reasonable, including considering the age of the child, and should not exceed 45 minutes
- An attending adult supervises the student during the time-out and remains in sight of the student for the duration of the time-out
- The time-out space is free of objects that could cause harm to the student or others
Failure to Report
Despite the restrictions on seclusion and restraint, nationwide reporting indicates that schools continue to use both practices and either underreport or don't report the actual numbers. As of 2023, Alabama has declined to provide records on seclusion and restraint in its schools.
If you believe your child's school is subjecting them to seclusion and/or restraint, contact the Education Law Team at the Lento Law Firm immediately.
College and University Students in Alabama
Undergraduate and graduate students still have the right to an education free from discrimination. What changes is that schools have fewer responsibilities, and students must become self-advocates.
Once a student enters college, IDEA no longer applies. Students receive protection through the Americans with Disabilities Act (ADA) and Section 504. Students should keep in mind that Section 504 covers all school activities, not just those that occur in a classroom or as a part of a course.
Colleges and universities aren't required to identify or assess students for potential disabilities. Students must request accommodations and provide all required documentation.
While schools often have similar requirements for disability documentation, students should check with their specific school and program for details. The University of Alabama provides a good example of requesting accommodations at the university level.
The majority of undergraduate and graduate students don't request accommodations through their school's disability services office. Despite students having a right to these accommodations as part of their education, and accommodations increasing student success, most college students with disabilities don't use these resources.
Not informing a school of a disability can also be detrimental in situations when a student faces misconduct allegations. Whether a student has been accused of academic misconduct or Title IX violations, by not informing a school of their disability, a student may have a more difficult time arguing that their disability is related to their misconduct.
Fair or not, a school may question why a student didn't request needed accommodations for their disability but now argues that their disability played a role in their misconduct. In this case, a student may need to present evidence as to why their disability is relevant to the misconduct but not to their academic work.
Students also shouldn't assume that disability services office staff are their advocates or on their side during disciplinary hearings. Staff are usually employees of the college, and their job focuses on accommodations, not disciplinary action.
If and when a student is facing any allegations of misconduct, they need an advocate who is wholly on their side. The Education Law Team at the Lento Law Firm works with college and university students nationwide to understand their options and build a case.
Protect Your Education
During one school year, students with disabilities made up 13 percent of the student body but accounted for 25 percent of school suspensions and 23 percent of school expulsions. Simply having a disability makes a student more likely to be subjected to school discipline.
If you or your child is facing school discipline or being singled out as a result of a disability, the Education Law Team at the Lento Law Firm can help. We know the value and importance of education in helping students achieve their goals and go on to successful careers. Call us at 888-535-3686 or fill out an online form.
