No student should face disability-based discrimination in school. Unfortunately, simply having a disability makes a student more likely to be subject to discipline and accused of misconduct.
The problem is significant enough that the U.S. Department of Education released guidelines on how to prevent the discriminatory use of discipline against students with disabilities. That students with disabilities are more likely to face school discipline also means schools are potentially violating a K-12 student's right to an education.
Several states have limited the use of seclusion and restraint in schools, two practices that are disproportionately used against students with disabilities. Most states still make exceptions for using these practices, and statistics indicate schools continue to use both practices while underreporting the numbers.
Hawaii prohibits disciplinary actions that discriminate against students with disabilities. Federal law has guidelines in place to limit punishing students whose misconduct stems from their disability.
One of the challenges in enforcing these laws is that people must understand a student's disability and how it can manifest in behavior. Without this understanding, it can be difficult to establish a connection between misconduct and a student's disability.
For college and graduate students with disabilities, it can be even more challenging to receive the protection they need and deserve. Colleges and universities have fewer obligations for students with disabilities, and most of the work is placed solely on student's shoulders. The result can be that
Whether a student is in first grade or in their first year of graduate school, they deserve to attend school and benefit from their education. Students shouldn't face punishment because of their disability, but that's too often what happens.
If you or your child is facing disciplinary issues related to a disability, the Education Law Team at the Lento Law Firm can help. We work with students and families in Hawaii to protect their right to an education free of discrimination. Call us at 888-535-3686 or fill out an online form.
K-12 Schools in Hawaii
All children have the right to a free, appropriate public education. For students with disabilities, this extends to the accommodations and services they require to access that education.
K-12 students must qualify to receive special education services under either the Individuals with Disabilities Education Act (IDEA) or Section 504 of the Rehabilitation Act of 1973. Public school districts must have procedures in place to identify and assess any child who resides within a district's boundary. This includes students who are too young to attend school or aren't enrolled in the public school.
IDEA has a list of eligible disabilities. For students who qualify under IDEA, they'll receive an Individualized Education Plan (IEP). IEPs are written documents that list the services and support a student requires.
If a student doesn't qualify under IDEA, they may qualify under Section 504, which uses a broader definition of disability. These students will receive a 504 Plan. While there's no written requirement for 504 Plans, parents and guardians should request a written version to reduce the likelihood of mistakes about what services their child receives.
For disciplinary actions, whether a student has an IEP or a 504 Plan shouldn't make a significant difference in how a school handles the issue. The key is that schools cannot discriminate against a student because of their disability.
Manifestation Determination
In some cases of student discipline, schools may be required to schedule a manifestation determination meeting. The purpose of these meetings is to determine what role, if any, a student's disability played in their misconduct.
A manifestation determination meeting occurs when a student's education placement is changed for ten consecutive days or more than ten days during the current school year. Change of placement means a student is suspended, removed, or otherwise taken out of their traditional school schedule and routine.
To understand when manifestation determination meetings must be conducted, here are two examples:
- A student is suspended for five days in April. She's suspended for an additional six days the following October. A school doesn't need to conduct a manifestation determination meeting because these changes of placement occurred during different school years.
- A student is suspended for two days in October and one day in November. The following year, he's suspended for two days in January, two days in February, and two different times, both for two days in March. After this last suspension, the school must call a manifestation determination meeting. This is because the student has been removed from his placement for more than ten days during the current school year.
What Happens in a Manifestation Determination Meeting
During a manifestation determination meeting, school staff and parents will consider a student's code of conduct violation and how it relates to their disability. These meetings should consider two questions:
- Was the student's conduct caused by or had a direct and substantial relationship to a student's disability?
- Was the student's conduct the direct result of a failure to implement a student's IEP or 504 Plan?
If a student's conduct wasn't related to either of these two questions, schools may proceed to discipline them according to Hawaii's administrative rules. In these cases, students must be disciplined similar to any nondisabled student.
Students with disabilities must receive special education services during any disciplinary action. These services can differ from what's on their IEP or 504 Plan.
Manifestations
If schools and parents determine that a student's conduct was a manifestation of their disability, a student should be returned to their normal educational placement. The exception is if school staff and families agree a different placement is needed.
If a student's misconduct is the result of a school failing to implement that student's IEP or 504 Plan, schools must immediately work to resolve this issue and provide the agreed-upon services and accommodations.
In most cases, schools will need to conduct a functional behavioral assessment (FBA). From the FBA, they should craft a behavioral intervention plan (BIP).
FBAs and BIPs
Functional behavioral assessments (FBA) assemble a wide range of data and information. The goal is to better understand a student's behavior and the potential reasons for their misconduct.
Once schools have an FBA, they'll use it to create a behavioral intervention plan (BIP). The goal of a BIP is to support a student in improving their behavior with an emphasis on teaching rather than punishment.
If a student already has an FBA, they won't automatically have to undergo a second FBA following a manifestation determination. Schools can use the existing FBA, plus any recent information, to craft or revise a BIP.
Special Circumstances
Some misconduct is serious enough that schools aren't required to conduct manifestation determination meetings. In these circumstances, students with disabilities are treated the same as nondisabled students, regardless of the connection between their disability and their misconduct.
These special circumstances are:
- Carrying or possessing a weapon at school, on school grounds, or at school events
- Inflicting serious bodily injury on another person at school, on school grounds, or at school events
- Knowingly using and possessing illegal drugs or alcohol at school, on school grounds, or at school events
In these situations, schools may change a student's placement to an interim alternative educational setting for up to 45 days without needing to conduct a manifestation determination meeting. Students must still receive special education services during their alternative placement, although those services can differ from what they usually receive.
Hawaii's law expands the special circumstances regarding drugs and alcohol. In Hawaii, the state does not explicitly limit use and possession to school-related spaces and activities. Hawaii's law states that any use or possession of drugs and alcohol qualifies as a special circumstance.
Appeals
If parents disagree with a school's manifestation determination, they may request a hearing or otherwise appeal a school's decision. Hawaii recommends the use of alternative dispute resolution options, such as mediation. Families, however, can decide what option to pursue, including a hearing.
The Education Law Team at the Lento Law Firm can help families understand their appeal and dispute resolution options. We assist parents and guardians in deciding the best option for their student and their situation.
Seclusion and Restraint
Seclusion and restraint refer to disciplinary practices that have come under increasing scrutiny in recent years. Those in favor of seclusion and restraint view them as necessary to guarantee school safety. Those who oppose the practices believe they do little to improve school behavior but are detrimental to a student's mental health and may increase behavioral issues.
Seclusion refers to physically isolating a student, sometimes in a locked room, from which they can't leave. Seclusion is different from timeouts. Timeouts are monitored and used for a limited time, usually to calm a student.
Restraint refers to limiting a student's movements. Hawaii allows restraint in limited circumstances:
- To prevent harm or injury to others
- To prevent harm or injury to the student
- To prevent substantial property damage
If a student is restrained, schools must do the following:
- Call or electronically notify parents or guardians that day
- Send written notification within 24 hours
As part of these communications, schools should inform parents of what interventions were tried before the school used restraint. In Hawaii, parents have a right to meet with school administrators and staff after their child has been restrained.
Disabilities and Restraint
Based on information provided by the Hawaii Department of Education, students with disabilities are more likely to be restrained. Of the 124 students restrained in the 2022 report, 94 were eligible for support under Section 504. Of these 94 students, 52 were eligible under IDEA. In other words, for every four students restrained, three had a disability.
Nationwide studies on seclusion and restraint indicate the practices are frequently underreported by school districts. If you know or suspect your child has been subjected to seclusion or restraint in school, contact the Education Law Team at the Lento Law Firm.
Colleges and Universities in Hawaii
For students who have disabilities during their K-12 years, one of the biggest adjustments upon arriving at college is that schools have fewer responsibilities. IDEA no longer applies. Students will rely on the Americans with Disabilities Act (ADA) and Section 504 for protection from discrimination and requesting accommodations.
Colleges and universities have no obligation to identify or assess anyone for potential disabilities. The responsibility falls entirely on the students to inform schools of their disabilities and request accommodations.
If students need additional assessments or documentation, they're responsible for locating a specialist and paying for evaluations. University of Hawaii's KOKOA Program includes how students can submit documentation. The page also highlights that providing any fraudulent information violates the school's policies and could result in disciplinary action.
Lack of Information
Unlike IDEA, which requires that schools provide data on how students with disabilities perform in school, colleges and universities don't have any reporting requirements. This means there's little data on how having a disability affects a student's likelihood of being subject to discipline.
A second challenge is that the majority of students don't inform their school of their disability, which means it's difficult to track how they do once in college. This not only denies students with disabilities needed accommodations, but it can hurt them if and when they're accused of misconduct.
Unlike K-12 schools, colleges and universities don't have to conduct a manifestation determination meeting. If students haven't previously informed a school about their disability, they may have an even more difficult time explaining how their disability played a role in their misconduct.
Misconduct allegations can range from academic issues to Title XI violations. Unlike K-12 schools, universities have more latitude in suspending and expelling students.
Students shouldn't assume a college's disability services office can help them navigate misconduct issues. These offices focus on accommodations, not disciplinary issues. If and when a college or graduate student faces misconduct allegations, they should contact the Education Law Team at the Lento Law Firm.
Protect Your Education
Students with disabilities have the same right to education as their non-disabled peers. Discriminatory use of discipline can prevent students from having equal access to their education.
Failing to understand how a disability can influence a student's behavior may mean a student is unfairly labeled a “problem” or deprived of needed support and resources to help them reach their educational goals. Punishment rarely solves these issues but may worsen behavior.
If you or your student is facing disciplinary action or misconduct allegations due to a disability, contact the Education Law Team at the Lento Law Firm. We work with students and families in Hawaii and nationwide to protect their future and their right to an education. Call us at 888-535-3686 or fill out an online form.
