A student with disabilities may have fantastic accommodations and support, but that means little if a student faces unfair disciplinary action. Simply having a disability makes a student more likely to be subjected to allegations of misconduct.
Multiple studies have shown that schools discriminate against students with disabilities. One student found that, during one school year, students with disabilities accounted for 80 percent of students subjected to a type of discipline.
Another study found that, while students with disabilities were 13 percent of students, they represented 25 percent of students suspended and 23 percent of students expelled. It's not a small difference, but a significant gulf between how often students with disabilities face claims of misconduct compared to their non-disabled peers.
The problem is serious enough that the U.S. Department of Education released guidance on disciplining students with disabilities. The department has also indicated that some of these disciplinary actions are so extreme that they deprive K-12 students of their right to an education.
Colleges and universities have fewer requirements for supporting college and graduate students with disabilities. This includes not tracking the outcomes of students with disabilities. For college and graduate students with disabilities, navigating misconduct allegations and the disciplinary process may feel like wandering through a dense fog without a map.
The Education Law Team at the Lento Law Firm gives our clients a map to help them understand the disciplinary process, their options, and the best way to proceed. We appreciate the relationship between disability and discipline and believe that all students should have the support to achieve their educational goals free from discrimination. If you or your student is facing allegations of misconduct, call us at 888-535-3686 or fill out an online form.
K-12 Schools in New Hampshire
Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act of 1973.are the foundational laws protecting the rights of K-12 students with disabilities? These two laws establish that students have the right to an education free from discrimination and the right to services and accommodations to give them access to learning and participating in school.
Both laws establish that public schools must identify and evaluate all children who live within their boundaries. For students with an eligible disability, schools must provide special education services and reasonable accommodations.
IDEA uses a list of eligible disabilities. Students who qualify under IDEA will get an Individualized Education Plan (IEP). A written document, an IEP, lists all of the services and accommodations a school must provide to a student. IEPs, once agreed upon by families and schools, are legally binding.
Students who don't qualify under IDEA may qualify for support under Section 504. Along with the Americans with Disabilities Act (ADA), Section 504 uses a broader definition of disability and requires support both in the classroom and for extracurricular activities. Students receive a 504 Plan.
New Hampshire provides a guide on the state's special education services and programs. This guide includes the relevant laws.
Manifestation Determination
Depending on the circumstances, schools may have to consider the role a student's disability plays in their behavior. Schools must conduct a manifestation determination meeting when a student's educational placement:
- Changes for more than ten days during one school year
- Changes for more than ten days consecutively
A change in educational placement means a removal from a student's normal placement, such as a suspension.
The laws that require manifestation determination come from IDEA. For disciplinary purposes, students with 504 Plans should receive similar protections.
During a manifestation determination meeting, schools 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?
All determinations should consider the specific details and circumstances. Decisions should be made on a case-by-case basis.
Not a Manifestation
If the decision is no, a student's misconduct didn't relate to their disability, schools may proceed to discipline a student. Any disciplinary action must be similar to what any other student would receive for similar actions.
Students must continue to receive special education services and support during a disciplinary period. These services can differ from what's on their IEP or 504 Plan.
Manifestation of a Disability
If parents and school staff agree that a student's behavior is a manifestation of their disability, the next step is a functional behavioral assessment (FBA). Based on the information gathered from the FBA, school staff and parents will meet to create a behavior intervention plan (BIP). If a student already has an FBA, the school will either need to create or revise a BIP.
If the student's behavior relates to a school's failure to implement its IEP or 504 Plan, the school must take immediate action to provide those services.
While not required, parents and guardians may want to request a meeting to discuss a student's IEP. Families can request meetings to review an IEP at any point, and misconduct could indicate an IEP isn't effective.
FBAs and BIPs
New Hampshire defines functional behavior assessments (FBA) as an evaluation of a student's behavior. While that may sound simple, an effective FBA uses a wide array of data to better understand the reasons underlying a student's behavior and actions.
The goal of an FBA is to have a theory about why a student is acting or behaving in a certain way. An effective FBA doesn't simply skim the surface but works from the belief that the causes of a student's behavior may not be immediately obvious.
An FBA may include a student's records, interviews with teachers or staff, and relevant information about their home life. In short, anything that might help explain. These assessments should look for triggers or other details, such as incidents always occurring during a certain time, class, or before certain activities.
Once a school completes an FBA, the school will use the information and theory from the FBA to create a behavior intervention plan (BIP). BIPs focus on positive behavior interventions rather than punishment to improve a student's behavior and prevent future disciplinary issues at school.
When drafting a BIP, parents should request that they, along with the school, also review a student's IEP or 504 Plan. A BIP should work in tandem with these plans.
If you believe a school isn't conducting a comprehensive FBA or a BIP is unlikely to help a student improve their behavior, contact the Education Law Team at the Lento Law Firm.
Special Circumstances
Some misconduct is serious enough that schools can take disciplinary action regardless of a student's disability. These special circumstances allow schools to place students in an interim alternative educational setting (IAES) for up to 45 days without having to consider what role, if any, a student's disability played in their behavior.
These special circumstances are:
- When a student carries a weapon to school or possesses a weapon at school, on school grounds, or during school events
- When a student knowingly possesses, uses, solicits, or sells illegal drugs or controlled substances at school, on school grounds, or during school events
- When a student inflicts serious bodily injury on another person at school, on school grounds, or during school events
Even while in an IAES, schools must continue to provide special education services to students. These services and accommodations can differ from what's listed on a student's IEP or 504 Plan as long as they allow a student to progress toward their goals.
Appeals
If families disagree with a school's decision, they have the right to appeal. A hearing officer will hear appeals related to:
- A student's educational placement
- A manifestation determination
These differ from special education dispute resolution procedures such as mediation. Schools may also initiate an appeal if they believe a student's current placement is substantially likely to result in harm or injury to a member of the school community.
If you disagree with a school's decision or if a school has appealed your child's placement, determining the best avenues to pursue can be overwhelming. You want to make the right choice for your child. The Education Law Team at the Lento Law Firm helps our clients understand their options and select the one that best fits their goals and their circumstances.
Seclusion and Restraint
Seclusion and restraint are two controversial disciplinary practices. Those in favor of the practices say they're necessary for school safety. Those who oppose them say they don't reduce student misconduct but can create lasting mental and emotional harm to students subjected to these practices.
Seclusion refers to isolating a student in a room or other space from which they're unable to leave. Restraint refers to limiting a student's movements.
New Hampshire Law
All schools, public and private, must have policies on seclusion and restraint. Both seclusion and restraint should be considered as last resorts after other interventions haven't worked.
New Hampshire's law on seclusion and restraint limits the use of either to emergencies when there's a substantial and imminent risk of serious bodily harm to anyone. This includes the student subjected to seclusion or restraint.
District-Level Policy
Hollis Brookline High School's policy reflects the state's requirements. The school requires that, when seclusion or restraint is used on a student with disabilities, the school must schedule a meeting. During this meeting, the student's IEP or 504 Plan team will review their plan and revise it as needed to prevent future instances of seclusion or restraint.
The school states that parents or guardians may also request meetings at any point after a seclusion or restraint incident. Keep in mind that federal law requires that schools allow parents to request a meeting at any point during the year.
Complaints
New Hampshire allows anyone to file a complaint if they believe a school has violated New Hampshire's laws surrounding seclusion and restraint. These complaints may be filed confidentially.
The process for complaints:
- Reviewing the complaint
- If a complaint is dismissed, the state will inform the person who filed the complaint about the dismissal and the reason for the dismissal
- If facts indicate a violation of the law may have occurred, an investigation of the complaint will proceed
- An investigator will file a report within 30 days with a conclusion
- Disciplinary proceedings may be conducted
If you believe a school has violated New Hampshire's laws on seclusion and restraint, contact the Education Law Team at the Lento Law Firm. Your student shouldn't be afraid to go to school.
Colleges and Universities in New Hampshire
College is an adjustment for most students, but it can be especially challenging for students with disabilities. While colleges and universities must still provide services to students, they have fewer obligations than K-12 schools. This can make navigating any allegations of misconduct especially challenging.
Colleges and universities don't have to identify or assess any students who may have disabilities. Evaluations and any related costs are now entirely the responsibility of the student.
Students must supply documentation of a disability to their school. Each college or university has its own procedures for requesting accommodations. Dartmouth College has different guidelines depending on a student's disability.
Most college and graduate students don't inform their school about their disability. If and when a student faces accusations of misconduct, this lack of documentation may make it difficult to explain how a disability impacted their actions.
Disability and Discipline
Unlike K-12 schools, colleges and universities don't have to consider a student's disability in disciplinary hearings. There's no formalized support system in place for students with disabilities who have been accused of misconduct.
College disability offices mostly focus on accommodations and documentation. The University of New Hampshire has a grievance process, but the focus is exclusively on accommodations, not disciplinary action.
College and graduate students who have been accused of misconduct need an advocate who understands the relationship between disability and behavior. The Education Law Team at the Lento Law Firm works with students in New Hampshire and throughout the United States to understand the disciplinary process and select the best path for their situation.
Protect Your Education
Simply having a disability means a student is more likely to face disciplinary action. Discriminatory use of discipline not only affects a student's education, it can have long-term effects on their behavior and health.
If you or your student have a disability and are facing allegations of misconduct, you need an advocate who understands the relationship between disability and discipline. The Education Law Team at the Lento Law Firm works with students and families in New Hampshire and throughout the country on issues related to education and disability. We focus on collaborative solutions that prioritize your education. Call us at 888-535-3686 or fill out an online form.
