Just by having a disability, a student is more likely to be subjected to discipline. That federal and North Dakota laws prohibit disability-based discrimination doesn't prevent students with disabilities from being unfairly subjected to disciplinary action.
Numerous studies have shown that simply having a disability makes a student more likely to face misconduct allegations. In one study, students with disabilities made up 13 percent of the student population but accounted for 25 percent of school suspensions and 23 percent of expulsions.
The problem is significant enough that the U.S. Department of Education released guidance on the subject. The report focused on how to better support students with disabilities and avoid discriminatory uses of discipline.
All K-12 students have the right to a free appropriate public education. All students, from preschool to graduate school, have the right to an education free of discrimination.
For students with disabilities, this includes the right to access services and accommodations as part of their education. These services and accommodations aren't as beneficial to a student if that student is facing unfair misconduct allegations or is labeled a “problem.”
If you or your student is facing discriminatory uses of discipline due to a disability, contact the Education Law Team at the Lento Law Firm. We work with students and families in North Dakota and nationwide to protect their right to an education. Call us at 888-535-3686 or fill out an online form.
K-12 Disabilities and Discipline in North Dakota
All K-12 students have the right to a free appropriate public education (FAPE). For students with disabilities, FAPE includes special education services.
Public schools must identify and assess any child or teen who may have a disability. This includes children who are too young to attend school or don't attend their local public school.
Students qualify for disability support under one of the two federal laws, the Individuals with Disabilities Education Act (IDEA) or Section 504 of the Rehabilitation Act of 1973. IDEA uses a limited list of eligible disabilities and applies to K-12 students only. Section 504 applies to all students and uses a more expansive definition of qualifying disabilities.
Students who qualify under IDEA will receive an Individualized Education Plan. A written document, IEPs lists all of the services and accommodations a student needs to benefit from their education.
Students who qualify under Section 504 will get a 504 Plan. One of the quirks of 504 Plans is that there's no requirement that the plan be written, but families may request a written plan to ensure everyone is on the same page regarding the services and support a student receives.
When disciplinary issues arise, a student shouldn't be treated differently because they have an IEP or 504 Plan. Students shouldn't be discriminated against based on their disability.
Manifestation Determination
Manifestation determination refers to finding out if there's a relationship between a student's misconduct and their disability. Schools must conduct a manifestation determination meeting with parents or guardians when:
- A student is removed from their education placement, such as through suspension, for more than ten consecutive days
- A student has been removed from their educational placement for more than ten days during a school year
During a manifestation determination meeting, school staff and parents will look at the issue from two angles:
- Did a student's disability cause the student's conduct or have a direct and substantial relationship to the conduct?
- Was the student's conduct a direct result of a school's failure to implement a student's IEP or 504 Plan?
If staff and parents agree that a student's disability didn't cause or relate to their misconduct, a school may discipline that student based on school policy. Any punishment must be similar to what a nondisabled student would receive for the same misconduct.
Students should still receive special education services during any disciplinary action. Those services, however, don't have to be identical to what they receive as part of their IEP or 504 Plan.
Manifestation of a Disability
If a meeting concludes with the determination that a student's behavior was caused by or the result of a disability, the following actions should be taken:
- If a school has failed to implement a student's IEP or 504 Plan, a school should immediately work to resolve these issues, including devising an implementation plan if necessary
- A student should be returned to their regular educational placement, except if both school staff and parents agree a change is needed
- A student will undergo a Functional Behavioral Assessment (FBA)
- Once a student has an FBA, school staff, and parents will craft a Behavior Intervention Plan (BIP)
FBAs and BIPs
Functional Behavioral Assessments (FBA) and Behavior Intervention Plans (BIP) go hand-in-hand. While often required after a manifestation determination meeting, FBAs and BIPs can happen at any point during a student with disability's K-12 years.
The purpose of an FBA is to understand the reasons for a student's behavior. FBAs are assessments that should use a wide range of data, from interviews with parents and teachers to school records. Any information that could help explain or understand a student's behavior could be relevant.
North Dakota states that an FBA is complete when it achieves the following four objectives:
- Providing a clear description of the problem behavior
- Identifying events, times, or situations that predict when the problem behaviors are likely to occur
- Identifying the consequences that maintain the problem behaviors
- Developing one or more summary statements or hypotheses
The information gained from an FBA should be sufficient to create a BIP.
A BIP is similar to an IEP or 504 Plan but focuses on improving behavior rather than educational support. A BIP should have a specific plan of action that incorporates effective positive behavior interventions that teach a student more acceptable behavior. The focus is on supporting a student and improving outcomes rather than punishment.
If a student already has completed an FBA or has a BIP at the time misconduct occurs, parents or guardians may wish to ask the following questions:
- Is the current FBA sufficient, or is more information needed?
- Was the current BIP being implemented by members of the school staff?
- What revisions need to be made to the BIP to prevent future misconduct?
If a student has a FBA but not a BIP, the FBA should be used to create a BIP.
Special Circumstances
Some misconduct is serious enough that schools don't need to consider a student's disability when determining disciplinary action. In these special circumstances, schools may place a student in an interim alternative educational setting for up to 45 days without conducting a manifestation determination meeting.
These special circumstances are:
- When a student carries or possesses a weapon to or at school, on school grounds, or at school events
- When a student knowingly possesses, uses, solicits, or sells illegal drugs or controlled substances while at school, on school grounds, or at school activities
- When a student inflicts serious bodily injury on another person while at school, on school grounds, or at school events
Schools don't have to conduct a manifestation determination meeting or a functional behavior assessment. They must continue, however, to provide special education services.
These services don't have to be identical to those a student normally receives. They still need to be effective in helping a student access their education and work toward their educational goals.
Seclusion and Restraint
South Dakota doesn't have any statewide laws on seclusion and restraint. While the state has previously considered bills to limit these practices, these bills haven't passed. Families will need to consult their student's handbook to find out about their school's policies on these practices.
Seclusion refers to the involuntary isolation of a student in a room from which the student can't leave. Restraint refers to limiting a student's movements.
Opponents of these practices claim that rather than making schools safer, they increase discipline problems and make students feel less safe in school. Students subjected to seclusion or restraint report having mental and emotional problems.
Students with disabilities are more likely to be subjected to seclusion and restraint. During one school year, students with disabilities made up 13 percent of the student body but accounted for 80 percent of the students subjected to seclusion or restraint.
Fargo and the Office of Civil Rights
In September 2023, the U.S. Department of Education Office of Civil Rights concluded an investigation into the Fargo Public School District's use of seclusion and restraint. After an investigation, the Office of Civil Rights concluded that the district's use of seclusion and restraint denied students with disabilities their right to a free, appropriate public education.
Some of the findings of the report:
- While students with disabilities made up 14 percent of the district's student body, they account for over 70 percent of students subjected to restraint
- The majority of students restrained were in kindergarten or first, second, or third grade
- The majority of students subjected to restraint were later diagnosed with PTSD
Regarding seclusion, the Office of Civil Rights couldn't complete the assessment due to poor record keeping and lack of information.
Nationwide, numerous reports and government studies have found that most school districts are underreporting their use of seclusion and restraint. Even if a school district doesn't have a widespread problem with seclusion and restraint, one incident can cause problems with a student. If that student is your child, you should contact the Education Law Team at the Lento Law Firm.
Fargo Public Schools Policy
As of 2022, Fargo Public Schools allowed restraint when necessary to protect a member of the school community from imminent harm. The district adds that it should only be used when less intrusive alternatives are unsuccessful.
Only staff members trained in proper restraint practices should administer restraint. The Office of Civil Rights, however, uncovered at least one instance where an untrained staff member restrained a student.
This is just one district's policy. Each North Dakota school district has its policy, and families need to know their district's seclusion and restraint policy.
Colleges and Universities Disabilities and Discipline in North Dakota
Colleges and universities have fewer responsibilities for students with disabilities than K-12 schools. Universities aren't required to identify or assess any student for a potential disability.
Once students enter college, IDEA no longer applies. While colleges and universities cannot discriminate against students based on their disabilities or refuse to provide accommodations, college and graduate students are expected to self-advocate.
Students must provide documentation of their disability, including paying for any assessments. Students must request accommodations and arrange to meet with their college or university. The University of North Dakota, for example, has separate documentation guidelines for academic accommodations and housing accommodations.
Colleges and universities don't have to track students with disabilities. This means there's little data as to how college and graduate students do in school, from whether they complete their degrees or face disciplinary action more than their nondisabled peers.
The Silent Majority
Most college and graduate students don't request accommodations. This not only deprives them of needed services to help them succeed in school, but it may make it more complicated for them if they do face misconduct allegations.
For example, a student is accused of academic misconduct. Their misconduct relates to their disability, but the student hadn't informed the school of their disability. Fair or not, a disciplinary board may ask why a student's disability didn't require accommodations but is a defense to misconduct.
Even if a student has informed a school about their disability, they may be subjected to the same disciplinary action as a nondisabled student. Unlike K-12 schools, colleges and universities don't have to conduct a manifestation determination meeting. This is the case even if their disability played a role in their misconduct.
For college and graduate students with disabilities, facing misconduct allegations can seem overwhelming. Disability services offices are generally not equipped to handle or support disciplinary action, and office staff may not be neutral parties.
Getting into college or graduate school is the result of years of effort. Don't let one misstep derail your goals and your future. If you're facing disciplinary action and have a disability, contact the Education Law Team at the Lento Law Firm.
Protect Your Future
A disciplinary record can hurt a student's education and future. Individuals with disabilities already face challenges in accessing services, handling prejudices about disabilities, and fighting against discrimination. A disciplinary record only adds to these challenges.
A disability doesn't mean a student can't succeed in school or is “bad.” Unfortunately, our current system places an unfair burden on students with disabilities and subjects them to discipline more often than their nondisabled peers.
All students deserve access to an education free from disability-based discrimination. If you or your student is facing misconduct allegations, contact the Education Law Team at the Lento Law Firm. Call us at 888-535-3686 or fill out an online form.
