Students with disabilities are more likely to be disciplined in school. Even if a disability played a role in a student's misconduct, schools don't always have to consider a student's disability when determining disciplinary action.
The result is serious enough that K-12 students with disabilities are being denied their right to a free, appropriate public education due to school discipline. College and graduate students with disabilities, in comparison, have minimal support in navigating the disciplinary process.
Students with disabilities should be able to attend school and complete their education without facing discrimination. Unfortunately, the disproportionate use of discipline against students with disabilities amounts to a form of discrimination.
In one report, students made up 13 percent of the student population but accounted for 80 percent of the students subjected to a certain type of discipline. In 2022, the U.S. Department of Education released guidelines on how schools can minimize the overuse of discipline against students with disabilities.
Even schools that don't have a widespread problem with unfair disciplinary action against students with disabilities may still overstep with a single student. If that single student is you or your child, you need help.
The Education Law Team at the Lento Law Firm works with students and families in Vermont to protect their rights to an education free from disability-based discrimination. If you or your child has a disability and is facing disciplinary action, we can help. Call us at 888-535-3686 or fill out an online form.
K-12 Schools in Vermont
K-12 students with disabilities receive special education services via an Individualized Education Plan (IEP) or 504 Plan. Students must first qualify as having a disability.
To get an IEP, students must be eligible for support under the Individuals with Disabilities Education Act (IDEA). To get a 504 Plan, students must qualify under Section 504 of the Rehabilitation Act of 1973.
Of the two, IDEA uses a narrower definition of disability. Put another way, all students who qualify under IDEA also qualify under Section 504, but not all students who qualify under Section 504 qualify under IDEA.
K-12 public school districts have several responsibilities for students with disabilities. These include:
- Locating and identifying any child who may have a disability and resides within the district's boundaries
- Assessing children for potential disabilities
- For eligible children, providing special education services
IDEA also mandates the use of manifestation determination in certain disciplinary cases. These same requirements also apply to students who have 504 Plans.
Manifestation Determination
In some disciplinary proceedings, schools must consider what role, if any, a student's disability played in their misconduct. This process is known as manifestation determination.
Not all disciplinary actions require a manifestation determination meeting. Schools must conduct these meetings when a student faces a change in placement - such as through suspension - for at least ten days total or more than ten days during the current school year.
During a manifestation determination meeting, school staff and parents must 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?
If the decision is no to both of these questions, students should be disciplined based on a school's existing disciplinary policies. Their punishment should be similar to what any student would receive in a similar situation.
Students with disabilities must continue to receive special education services during any suspension or other change in placement. These services can vary from what they normally receive, but they must still allow a student to make progress toward their IEP or Section 504 goals.
A Manifestation
If a student's actions are a manifestation of their disability, they should be returned to their normal educational placement and schedule. The exception is if parents and school staff agree that a change in placement would benefit the student.
If a student's misconduct relates to a school failing to implement a student's IEP or 504 Plan, schools must immediately work towards full implementation. Parents or guardians may also wish to discuss whether revisions are needed to better support a student.
To help a student avoid future misconduct allegations, students should complete a Functional Behavioral Assessment (FBA). Following the FBA, school staff, and parents should meet to create a Behavior Intervention Plans (BIP).
If a student already has a BIP, school staff, and parents should meet to discuss changes to the BIP and/or a student's IEP or 504 Plan to avoid future disciplinary incidents.
Law Enforcement Notification
In situations when schools believe that a student has committed a crime, schools will forward a student's records and information about the incident to the relevant local law enforcement authority. Any forwarding of documents will comply with FERPA. Families should be aware that having a disability doesn't automatically exempt them from facing criminal charges.
Under Age Eight
As of 2022, Vermont bans the use of expulsion and suspension for students under eight years old. This prohibition includes public schools and approved independent schools. This restriction covers:
- In-school suspension
- Out-of-school suspension
- Expulsion
Certain actions, although not called suspension or expulsion, may amount to the same thing. The following actions may be considered a suspension or expulsion:
- Excluding health concerns, asking parents or other family members to pick up a child early
- Recommending a family keep a child out of school until plans or supports are in place
- Placing a student in a non-instructional room or area for more than 90 minutes during a school day
Essentially, some actions by a school may be de facto suspension or expulsion.
Vermont has one exception to this ban. If a student poses an imminent threat of harm or danger to other members of a school community or program, schools may consider suspension or expulsion.
Imminent harm isn't just a potential physical injury. It can also include threats, bullying, or harassment that's serious enough to cause emotional or psychological harm to others.
This harm must also be ongoing. Schools cannot use suspension or expulsion if the risk has passed and it's unlikely to reoccur. If school staff is unsure about safety, they should first remove a student to a supportive environment for up to 90 minutes, or one-fourth of the school day.
Students with Disabilities
For students under age eight who have disabilities, schools may consider suspension or expulsion if that student poses an imminent threat of harm or danger. In these situations, the same rules apply, such as:
- Schools must conduct a manifestation determination meeting if a student will be suspended or expelled for more than ten days, either cumulative or total, for the current school year
- A student must continue to receive special education services for the duration of a suspension or expulsion
- If a student is in the process of being evaluated for a disability, a special education case manager must be included in any disciplinary processes
Even if a child has a disability and is under eight years old, schools don't have to conduct a manifestation determination meeting for disciplinary actions that are less than ten days.
Special Circumstances
Some conduct is serious enough that schools don't have to conduct a manifestation determination meeting. These special circumstances allow schools to place a student in an interim alternative educational setting 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 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
Students will continue to receive special education services while in an interim alternative educational setting. Schools may request to extend an interim placement if they believe a return to the student's original placement is likely to result in injury to that student or other people.
A student's IEP team will still meet. They may require that a student undergo a functional behavioral assessment (FBA) or have a behavioral intervention plan (BIP). The goal is to prevent a repeat of the student's misconduct.
FBA and BIP
Success Beyond Six, a joint project between Vermont's Department of Health and the Department of Education, is the umbrella organization for behavior programs in Vermont's public schools. This includes overseeing the state's functional behavioral assessments and behavioral intervention plans.
Success Beyond Six works with all students with Multi-Tiered Systems of Support (MTSS) and Positive Behavioral Interventions and Support (PBIS). Even without any disciplinary issues, students should be receiving training and instruction that reinforce and teach positive behavior.
Functional behavior assessments use a wide range of data to form a hypothesis about a student's behavior. The goal is to understand why a student is acting in a certain way. Schools may consider records, interviews with teachers, or even changes to a student's home life during an FBA. Any information that could be useful to understand a student's actions is relevant.
Once schools have an FBA, they'll use that information to craft a BIP. Similar to an IEP or 504 Plan, BIPs create a guide to help address a student's weaknesses and help them to improve. The goal of a BIP is to improve a student's behavior using positive interventions to prevent future misconduct.
Seclusion and Restraint
Vermont limits the use of seclusion and restraint. These practices have come under increasing scrutiny in recent years, partially due to the mental and emotional harm they cause.
Seclusion refers to confining a student alone in a room. The student is unable to leave. Seclusion is different than time-outs.
Restraint refers to limiting a student's movements. While there are different types of restraint, Vermont bans all types but for physical restraint in limited circumstances.
In Vermont, seclusion and physical restraint should be used only:
- As a last resort when less restrictive interventions have failed or would be ineffective
- When a student's behavior poses an imminent and substantial risk of injury to themselves or others
Both practices should be discontinued as soon as the risk of harm ends. Vermont states that physical restraint should be used before seclusion, and seclusion must include a student being constantly monitored by an adult.
Being subjected to either practice can be traumatic, and nationwide investigations indicate schools underreport using them. If your student has been subject to seclusion or restraint, contact the Education Law Team at the Lento Law Firm.
College and Universities in Vermont
Once in college, the prevailing view on disability support might best be summed up with a Taylor Swift song: “You're On Your Own, Kid.” While colleges and universities cannot discriminate against students with disabilities and must provide accommodations, their responsibilities are significantly fewer compared to K-12 schools.
Schools no longer have to identify or evaluate students with potential disabilities. That responsibility is now firmly on students' shoulders. Students must now initiate requests for disability support, including providing documentation.
The result is that the majority of students with disabilities don't inform their college or university of their disability. Middlebury College reports that, in one school year, 20 percent of its student body contacted the school's Disability Resource Center about accommodations.
This percentage is similar to nationwide surveys. Even if students do request accommodations, many report that schools comply with the law but don't go further in supporting students with disabilities. That a college or university is complying with the law doesn't automatically mean the accommodations they provide are sufficient to support a student with disabilities, especially in challenging courses.
Students who don't inform their school of a disability face an especially challenging disciplinary process. For example, a student is accused of academic misconduct, and their behavior relates to their disability. A student will then need to show that although they didn't need accommodations, their disability did play a role in their actions and should be factored into any discipline decision.
Discipline and Misconduct
Colleges and universities don't have to conduct a disability manifestation if a student faces misconduct allegations. Schools also have few requirements to report on the relationship between disabilities and discipline in undergraduate and graduate programs.
When facing disciplinary action, students shouldn't assume they can rely on their college or university's disability resource office. These offices focus on documentation and accommodations, not disciplinary action.
Bennington College's Student Accessibility Services office does have a grievance and appeals process. This process is about disagreements over accommodations and lack of equal access, not discipline.
College and graduate students facing allegations of misconduct shouldn't assume that a disciplinary board will consider their disability in determining punishment. Neither should they assume school staff can or will advocate for them. Students should contact the Education Law Team at the Lento Law Firm.
Protect Your Future
Having a disability shouldn't limit a student's education. Unfortunately, having a disability means a student is more likely to face discipline and interruptions to their education.
All students have the right to attend school free from disability-based discrimination. If you or your student is facing discipline that relates to a disability, contact the Education Law Team at the Lento Law Firm. Call us at 888-535-3686 or fill out an online form.
