For students with disabilities, education comes with unique challenges. It's not enough to simply attend classes and do the work. To succeed in school, they require accommodations and modifications.
Students with disabilities face the additional challenge of being more likely to be subjected to discipline. In one study, while students with disabilities made up 13 percent of the total student body, they were 25 percent of school suspensions and 23 percent of expulsions. The problem is significant enough that, in 2022, the U.S. Department of Education released a guide on discipline and students with disabilities.
Students with disabilities may unfairly be labeled stupid or difficult. Even well-meaning staff and instructors may not understand how a student's disability can influence their behavior. For many students, what they need isn't disciplinary action but an understanding of the underlying causes and a plan to help them improve.
A student is the one who loses when a school fails to provide reasonable accommodations and support. It's that student's education and future that is at greatest risk, and families and students need to be proactive in addressing the issue and finding resolutions that keep a student's education and future on track.
If you or your student is facing disciplinary action related to a disability, the Education Law Team at the Lento Law Firm can help. We work with students and families throughout Alabama to help them understand their options. Call us at 888-535-3686 or fill out an online form.
Equal Footing
One misconception about accommodations for students with disabilities is that they're receiving special treatment. The reality is that they're instead receiving support to put them on a similar footing as their classmates.
The same is true for understanding the relationship between discipline and disability. Determining if a student's disability played a role in their misconduct isn't letting them avoid punishment. Rather, it's out of the belief that a student shouldn't be punished for circumstances beyond their control. In addition, this determination helps prevent discriminatory use of discipline against students with disabilities.
That a student has a disability isn't a get-out-of-jail-free card. If a student's behavior is unrelated to their disability or falls into certain categories of severe misconduct, a school may decide on a disciplinary action similar to what any student would receive.
K-12 Discipline in Arkansas
From birth to graduating from high school, students will qualify for special education accommodations through either the Individuals with Disabilities Education Act (IDEA) or Section 504 of the Rehabilitation Act of 1973. If a student qualifies under IDEA, they get an Individualized Education Plan (IEP). If they qualify under Section 504, they get a 504 Plan.
For qualifying students, schools must provide special education services. All K-12 students have a right to a free appropriate public education (FAPE). This includes special education services, even when a student is suspended or faces other disciplinary action.
Public schools also must identify and evaluate any baby, toddler, child, or teenager who resides within the school's boundaries and may have a disability. Parents or guardians may also request a school evaluate a student, including when they believe their student's misconduct relates to an undiagnosed disability.
IEPs must be written and are legally binding documents. Section 504 doesn't require that 504 Plans be put into writing, but families should still request that they be put into writing to minimize miscommunication.
Manifestation Determination
One of the challenges with students with disabilities is determining when and how their disability may influence their behavior. When students face significant or repeated disciplinary problems, schools may be required to hold a manifestation determination meeting.
The purpose of these meetings is to determine what role, if any, a student's disability played in their misconduct or behavior. During this meeting, school staff and parents meet and look at evidence to address two questions:
- Did the student's disability cause or have a direct and substantial relationship to their conduct?
- Was the student's conduct the direct result of a school failing to implement that student's IEP?
These determinations should be made on a case-by-case basis. During this meeting, participants should review all relevant information. This can include a student's IEP, teacher observations, or a student's file and academic record.
While most resources on manifestation determination focus on IEPs, the same guidelines apply to students with 504 Plans. For students using a 504 Plan, the Department of Education has published guidance on navigating disciplinary issues.
If the student's conduct is due to a school's failure to implement its IEP, a school needs to immediately address its failures. While not required, parents may want to request a written plan for how the school will provide all of the services on a student's IEP. Parents should keep in mind that, once agreed upon, an IEP is legally binding.
If your student has a disability and has been subjected to repeated or significant disciplinary action, contact the Education Law Team at the Lento Law Firm. The relationship between disability and discipline can be complicated, and your student deserves an advocate.
A Manifestation of Disability
If a student's behavior was found to be a manifestation of their disability and not related to a school's failure to implement a student's IEP, the following steps should be taken:
- Return the student to their previous educational placement, except if school staff and the parents agree that a change is necessary
- Conduct a functional behavior assessment (FBA) if one hasn't been conducted previously
Based on the FBA, craft a behavioral intervention plan (BIP) or revise an existing BIP.
FBAs and BIPs
The purpose of FBAs and BIPs is to identify the underlying reasons behind a student's behavior and create a plan to address these issues. While FBAs and BIPs are often the result of a manifestation determination meeting and disciplinary issues, schools may conduct them at any point.
FBAs are an assessment that uses a wide array of data to form a hypothesis about a student's behavior. Arkansas makes available its FBA process. Families may wish to review this document to understand the purpose of an FBA and take a more proactive approach during the assessment.
Schools should use an extensive range of data and information as part of an FBA. This can include a student's file, comments from teachers, any other related events or incidents, and any other observation or data that can help draw a more comprehensive hypothesis. The better the FBA results, the better able the BIP will be in addressing the student's behavioral issues.
BIPs are similar to IEPs in that they create a plan to support a student. If a student already has a BIP in place at the time of a disciplinary incident, families may wish to request a review of the BIP.
Not a Manifestation
If a student's behavior wasn't a manifestation of their disability, they should be subjected to the same level of and type of discipline as a nondisabled student. A student must still have access to special education services during the disciplinary action or change of placement, although they can differ from the IEP or 504 Plan. Schools cannot stop providing special education services and accommodations as a form of punishment.
Special Circumstances
Some forms of misconduct allow schools to change a student's placement in an interim alternative educational setting (IAES) without considering whether a student's behavior or actions were a result of their disability. In these cases, schools may remove a student from their current placement for up to 45 days.
These special circumstances are:
- When a student carries a weapon to school or possesses a weapon on school grounds or during a school-sponsored event
- When a student knowingly possesses, uses, sells, or solicits illegal drugs on school grounds or during a school-sponsored event
- When a student inflicts serious bodily injury on another person while on school grounds or during a school-sponsored event
A student's IEP team will meet to determine the appropriate alternative educational setting.
Positive Behavioral Interventions & Supports
Positive Behavioral Interventions & Supports (PBIS) is a school-wide program designed to help all students. PBIS doesn't alter the curriculum but rather uses evidence-based practices to better support students and educational outcomes.
Students qualify for different tiers of support. All students receive Tier 1 support, while Tier 3 is for students who need more intensive and individualized support.
The goal of PBIS is to improve student behavior with a focus on prevention rather than punishment. By helping students understand expectations, PBIS should decrease disciplinary issues.
If and when your student faces school discipline, one question to ask the school is if and how they're implementing PBIS. PBIS can benefit students with disabilities because of its proactive approach.
Restraint and Seclusion
Seclusion and restraint are practices that supporters say keep schools safe and minimize student misconduct. Research, however, indicates that the practices do little to keep schools safe but can make students feel unsafe at school.
Students with disabilities are more likely to be subjected to both seclusion and restraint. The U.S. Department of Education has suggested that the use of seclusion or restraint may amount to denying a student their right to FAPE.
Seclusion refers to removing a child from a classroom or other school activity and confining them to a room or other area from which they cannot leave. Time-outs aren't considered seclusion.
Restraint refers to limiting a student's movement. It may be either physical or mechanical. The latter refers to using other devices to restrict freedom of movement.
Arkansas Law Changes
In 2021, Arkansas revised its laws on seclusion and restraint. The revisions highlight the importance of PBIS and other behavior support instead of punishing students. While the state doesn't ban either practice, it recommends schools limit their use of both.
The exception is that schools can use either practice when a student presents an imminent threat to their or someone else's safety. In these situations, schools must discontinue either practice as soon as the threat ends.
School districts are also responsible for creating seclusion and restraint policies consistent with Arkansas law. Fayetteville Public School's Parent/Student Information Handbook not only defines these practices, it also includes a list of when seclusion and restraint shouldn't be used, such as:
- To retaliate against a student
- To attempt to coerce a student
- In place of PBIS or other behavioral or academic support
- To prevent property damage when no person is in imminent threat or danger
- To punish or discipline a student
Despite such policies, it's believed that seclusion and restraint are used more often than reported. While school districts are required to report seclusion and restraint statistics to the federal government, many school districts underreport these numbers. Students with disabilities remain more likely to be subject to both when compared to their nondisabled peers.
Opponents of seclusion and restraint believe the practices increase behavioral issues and may result in students skipping school or no longer feeling safe at school. This may lead to emotional outbursts and difficulties not only at school but at home and in every aspect of a child's life.
Arkansas Colleges and Universities
The majority of college and graduate students don't inform their school of their disability. This not only means students don't receive the accommodations and support they require. It may also make it more difficult for them if disciplinary or misconduct issues arise.
Colleges and universities must still provide accommodations to students with disabilities, but they generally have fewer responsibilities in supporting students with disabilities. Once in college and through graduate school, students are expected to be more proactive in advocating for themselves.
Unlike K-12 schools, IDEA doesn't apply to colleges and universities. This means that IEPs no longer apply, and protection for disability-based discrimination comes from the Americans with Disabilities Act (ADA) and Section 504.
Schools no longer have an obligation to identify and assess students for potential disabilities. They also have more latitude in disciplining students, up to and including expulsion.
Even when students inform their school of their disability, many report that they receive the bare minimum of support.
There's also less data on the relationship between discipline and disabilities at the college and graduate level. Schools have fewer reporting requirements.
Colleges and universities also have no requirement to consider whether a student's disability played a role in their misconduct. A Fact Sheet on manifestation determination from the U.S. Department of Education, for example, focuses solely on K-12 education.
What this means is that, if and when a college or graduate student with disabilities is facing misconduct allegations, it's all the more important that they have someone supporting them. The Education Law Team at the Lento Law Firm works with college and graduate students throughout Arkansas at community colleges, four-year colleges, and research universities.
Protect Your Education
Students with disabilities deserve the same educational opportunities as all students. This extends to not facing disability-based discipline.
A school's failure to understand the intersection between behavior and disability can have a serious impact on your or your student's education and future. A disability doesn't mean a student is incapable of learning. It simply means they learn differently, and the same is true of disciplinary issues.
If you or your student is facing misconduct allegations, the Education Law Team at the Lento Law Firm can help. We work with students and families throughout Arkansas to protect their education. Call us at 888-535-3686 or fill out an online form.
