Despite laws that are supposed to prevent disability-based discrimination, students with disabilities are more likely to face discipline as part of their education. They're more likely to be suspended or expelled or be subjected to controversial practices.
The problem is serious enough that the U.S. Department of Education has released guidelines on reducing discriminatory uses of discipline. One study found that while students with disabilities made up 13 percent of the student body, they accounted for 25 percent of school suspensions and 23 percent of expulsions.
Laws are supposed to prevent K-12 students from facing discipline when misconduct relates to their disability. College and graduate students have no such protection. There's also little in the way of numbers or research on whether disciplinary action disproportionally affects students with disabilities in colleges and universities.
Students with disabilities deserve an education free from discrimination. Much as they require accommodations as part of their education, they deserve similar treatment as their nondisabled peers in disciplinary measures.
Accommodations aren't enough when a student is unfairly subjected to school discipline. If you or your student is facing disciplinary issues that relate to a disability, the Education Law Team at the Lento Law Firm can help. We work with students and families throughout Colorado to protect students' rights to an education free from discrimination. Call us at 888-535-3686 or fill out an online form.
K-12 Students in Colorado
Three federal laws protect K-12 students and children too young to attend school: the Americans with Disabilities Act (ADA), the Individuals with Disabilities Education Act (IDEA), and Section 504 of the Rehabilitation Act of 1973. In the United States, all students have the right to a free, appropriate public education. For students with disabilities, this right also covers accommodations.
IDEA and Section 504 both establish the right of students with disabilities to have accommodations and modifications as part of their education. Of the two, IDEA uses a narrower definition of qualifying disabilities.
Students who qualify under IDEA receive an Individualized Education Plan (IEP). This written document lists all the services, modifications, and accommodations a student will receive. Once parents and schools agree on an IEP, the document is legally binding.
Students who aren't eligible under IDEA may qualify under Section 504. These students will receive a 504 Plan. While putting a 504 Plan in writing is not required, families should insist on having a written document to minimize miscommunication.
Manifestation Determination
In some disciplinary cases, schools must consider if a student's disability played a role in the student's alleged misconduct. This applies to students who have IEPs and 504 Plans.
Manifestation determination is the process by which schools determine if a student's disability contributed to or played a role in their misconduct. Schools must conduct a manifestation determination meeting when:
- A student has been suspended or otherwise removed from their usual educational placement for more than ten consecutive days
- A student has been suspended or otherwise removed from their usual educational placement for more than ten days during the current school year
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 will consider 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?
Much as IEPs should be tailored to the individual student, these meetings should focus on the individual student and the relevant circumstances. These meetings should include all relevant information, such as a student's IEP, teacher observations, or a student's file and academic record.
Most resources on manifestation determination focus on IEPs. Families of students with 504 Plans should be aware that the same guidelines for manifestation determination apply to them. For students using a 504 Plan, the Department of Education has published guidance on navigating disciplinary issues.
Not a Manifestation
If staff and parents agree that a student's misconduct doesn't relate to their disability, a school may discipline a student based on the school's policies. Any punishment should be similar to what any other student would receive in a similar situation.
Students must still receive special education services during any disciplinary action, although these services can differ from what they normally receive. Parents may also request a meeting to discuss their student's IEP or 504 Plan if they believe that revisions are necessary.
A Manifestation
If a student's conduct is the result of the school's failure to implement their IEP or 504 Plan, a school must immediately address its failures. Even if a student's misconduct is the result of a school not implementing their IEP or 504 Plan, parents may still want to consider other ways to prevent future misconduct.
In general, if a student's behavior was a manifestation of their disability, schools should return the student to their normal educational placement. The exception is if the school and parents agree that a student needs or would benefit from a change in placement.
The next step is that a student should undergo a Functional Behavioral Assessment (FBA). After the FBA is complete, school staff and parents will meet to discuss the creation of a Behavior Intervention Plan (BIP).
FBAs
The purpose of Functional Behavioral Assessments (FBA) is to gather information and data to better understand the reasons for a student's behavior. These behaviors can be academic, social, emotional, or a combination.
FBAs may involve a wide range of data, from school performance to events at home. They may include interviews with teachers and recent test scores. They may be brief or detailed.
Just as each student is an individual, each FBA should be similarly unique. Just as a disability may manifest in different students in different ways, so too behavior may have common causes but may also have causes or reasons unique to the student.
FBAs should result in school staff and parents being able to address the following questions:
- What's the challenging behavior, and where, when, and with whom does this behavior occur?
- What often or typically occurs before the behavior?
- What happens after the behavior? Does this reinforce or maintain the behavior?
- What interventions or strategies have been tried previously? Were they effective?
- What makes the challenging behavior worse or more likely to occur?
BIPs
Once an FBA is complete, the next step is the Behavior Intervention Plan (BIP). The goal of a BIP is to take the information and conclusions from the FBA and use them to help a student improve their behavior.
Much as an IEP should be focused on the individual student and not just on their disability, a BIP should be tailored to the student. Possible interventions:
- Environmental modifications, such as a quiet space to complete work
- Academic modifications, such as shorter assignments
- Adapting curriculum materials
- Social skills instruction and other training on appropriate behavior
- Counseling to improve a student's social and emotional skills and function
Similar to special education accommodations, these modifications shouldn't alter the fundamental nature of a class. Neither do schools have to offer any and all possible modifications or support.
Parents may wish to request revising an IEP or 504 Plan either during or after the creation of a BIP. The goal is to have all of these documents and supports working together to assist a student.
Colorado Resources
The Colorado Department of Education makes professional development training courses available on its website. The library has dozens of special education related resources, including a module on manifestation documentation. The training includes three videos:
- Policies and procedures
- Case studies
- Manifestation determination meeting structure
Examples of documents used during these meetings are also available for download. School districts may have their own versions of these documents. The key is that they cannot provide fewer services or protections than what federal or Colorado law requires.
Parents may benefit from these resources before manifestation determination meetings. By having a better understanding of the process and what to expect, they can focus on the best resolution for their child. This includes having an idea of what questions to ask and what topics should be discussed during these meetings.
Seclusion and Restraint
Seclusion and restraint are two disciplinary practices that have come under increasing scrutiny in recent years. Advocates say that the practices are necessary for school safety and to deal with significant behavioral issues. Opponents say these practices don't make schools safer but may make children feel unsafe in school.
Seclusion refers to involuntarily placing a student in a confined space. The space may be locked or otherwise blocked in a way that prevents a student from leaving.
Restraint refers to limiting a student's movements. Schools use mechanical or physical restraint, which physically limits a student's range of motion.
Current Colorado law allows schools to place students in seclusion with a closed door. The student must be constantly monitored.
In 2024, a bill introduced in the Colorado House would have banned all seclusion in schools by July 2025. The House Education Committee voted to postpone the bill indefinitely.
Colorado allows schools to use restraint in emergencies and after unsuccessfully using less restrictive methods. For example, a school staff member may restrain a student to prevent harm or injury to another member of the school community.
A 2019 GAO report found that schools throughout the country underreported the use of seclusion and restraint. Five years later, the practices were still underreported and reports had increased about the mental and physical toll the practices take on students. By one measurement, students with disabilities accounted for 80 percent of the students subjected to seclusion and restraint.
If you or your child has been subjected to seclusion or restraint, contact the Education Law Team at the Lento Law Firm.
Colorado Colleges and Universities
For students with disabilities, one of the biggest adjustments once beginning college is how accommodations shift. The responsibility is now on their shoulders to request accommodations.
IDEA no longer applies once students start college. The ADA and Section 504 are now the two primary laws that prohibit disability-based discrimination and require accommodations.
Unlike K-12 public schools, colleges and universities have no obligation to identify or assess students for potential disabilities. Students now bear the full cost of any assessments and evaluations. Those assessments are required, however, to qualify for disability accommodations.
As Colorado College mentions on its Accessibility Resources page, students are responsible for requesting accommodations in a timely manner. Some colleges and universities require students to reapply for accommodations every semester.
In general, once students enter college, they're less likely to request accommodations. Even when students do request accommodations, many say that schools do the minimum to support students with disabilities.
Disability rights advocates point out that a lack of soft skills and transition planning hamper students with disabilities as they enter college. Students go from K-12 schools that must provide services to being expected to self-advocate.
Colorado Statistics
In the United States, colleges and universities have few reporting requirements about students with disabilities. What is known is that approximately 33 percent of students with disabilities who enroll in a four-year college or university graduate within eight years.
Colorado is at the forefront of better understanding outcomes and experiences for students with disabilities. In 2022, the Colorado legislature passed a bill that focuses on improving college outcomes for students with disabilities and collects data to better analyze the situation.
The initial report on the 2022-2023 school year found that 6.6 percent of students at reporting colleges and universities had a disability. Compare this with statistics on K-12 students, which found that almost 15 percent of students have disabilities.
The Colorado report points out that the majority of students with disabilities don't inform their college. Students decline to report a disability to avoid being stigmatized.
One thing the report doesn't address is the relationship between discipline and student outcomes in colleges and universities. Students with disabilities who face allegations of misconduct have to rely on their school's standard disciplinary system.
If you're a college or graduate student facing allegations of misconduct, contact the Education Law Team at the Lento Law Firm. Even if you haven't disclosed your disability to your college or university, we can help you understand your options and create a defense.
Protect Your Future
Students with disabilities deserve an education free from discrimination. Unfortunately, students with disabilities are disproportionately subjected to disciplinary action and allegations of misconduct.
If you or your student is facing allegations of misconduct that relate to a disability, contact the Education Law Team at the Lento Law Firm. We work with students and families throughout Colorado to help them plot a path forward. Call us at 888-535-3686 or fill out an online form.
