No matter their age, students with disabilities have the right to attend school free from discrimination. Instead, these students are more likely to be subjected to discipline.
In some cases, the problem is significant enough that it amounts to denying K-12 students their right to a free, appropriate public education. By one metric, students with disabilities accounted for 80 percent of students subjected to a type of discipline despite being less than 15 percent of the student population.
The problem is serious enough that the U.S. Department of Education released guidelines on reducing disciplinary action against students with disabilities. Students who face discipline are more likely to have behavioral issues and may no longer want to go to school.
College and university students have fewer protections than K-12 students and more responsibility in navigating disability accommodations. Schools don't have to consider a student's disability in misconduct hearings.
If you or your student is facing allegations of misconduct, the Education Law Team at the Lento Law Firm can help. We work with students and families in Wyoming to protect their right to an education and to attend school free of disability-based discrimination. Call us at 888-535-3686 or fill out an online form and send it to us today.
K-12 Schools in Wyoming
Beginning in preschool and through high school, students with disabilities are protected by three federal laws. These laws are the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act (ADA).
IDEA applies to all students in K-12 and public schools. It establishes that schools must locate and evaluate any child in their boundaries who may have a disability. In certain discipline cases, it also requires that schools consider what role a student's disability played in their misconduct.
To qualify under IDEA, students must have a qualifying disability. Eligible students will receive an Individualized Education Plan (IEP). A written document, an IEP lists the services and accommodations a school must provide to a student.
ADA and Section 504 both use an expansive definition of disability. If students don't qualify for an IEP, they may qualify for a 504 Plan. Similar to IEPs, if a student has a 504 Plan, schools may have to consider their disability in some disciplinary cases.
Manifestation Determination
For some disciplinary actions, schools must consider if there's a relationship between a student's behavior and their disability. Known as manifestation determination, schools must conduct a meeting with parents or guardians when:
- A student is removed from their normal education placement for more than ten consecutive days
- A student has been removed from their normal educational placement for more than ten days during the current school year
Educational placement refers to where a student spends their school day. For students with disabilities, school staff and families decide on a placement during an IEP or similar meeting.
A manifestation determination meeting should address two questions:
- Did a student's disability cause the student's behavior or have a direct and substantial relationship to their behavior?
- Was there a direct relationship between a student's behavior and a school's failure to implement that student's IEP or 504 Plan?
All manifestation determination meetings should focus on the individual student and specific situation. They should be case-by-case decisions.
Before a meeting, families can review Wyoming's manifestation determination template. This template includes sections on:
- Relevant information from a student's school file
- Teacher and staff observations
- Review of student's IEP or 504 Plan
- Any relevant information from a student's family
The document concludes with case-specific recommendations about how to proceed. This can include recommendations on a student's future placement and next steps.
If staff and parents agree that the answer is no to both questions, schools can discipline a student. Any punishment should be based on the school's policy and be similar to what any student would receive.
During any suspension or expulsion, students must continue to receive special education services. The caveat is that those services don't have to be identical to what they normally receive.
Manifestation of a Disability
If school staff and parents agree that a student's behavior is a manifestation of their disability, students should return to their normal educational placement. The exception is if families and school staff agree a change of placement is necessary or would benefit the student.
If a school has failed to implement a student's IEP or 504 Plan, a school must immediately work to fully implement a student's agreed-upon modifications or accommodations. In some situations, parents or guardians may want to consider if their student would benefit from revising their IEP or 504 Plan.
Students should undergo a Functional Behavioral Assessment (FBA). Once a student has an FBA, school staff and parents will craft a Behavioral Intervention Plan (BIP). If a student has an FBA or BIP, the question becomes if any revisions are needed.
FBAs and BIPs
Functional Behavioral Assessments (FBA) are an evaluation that assembles a wide range of data. The goal is to attempt to understand and develop a theory about a student's behavior.
Once an FBA is complete, the information gained from it is used to develop a Behavioral Intervention Plan (BIP). Just as an IEP devises a plan to help a student reach their academic goals, a BIP is a plan to help students reach behavioral goals.
The goal of FBAs and BIPs is to understand the reasons for a student's behavior, help a student improve their behavior, and prevent future instances of misconduct. Also, similar to IEPs and 504 Plans, BIPs may need to be occasionally revised.
Relevant Behavioral Information
FBAs and BIPs should follow established procedures but focus on the individual student. Even when two students have the same disability or behavioral issues, what works for one student may not work for the other student.
This also applies to what's relevant for any FBA. The more information gathered on the individual student, the better the FBA's hypothesis. This can result in a better BIP and a decrease in future misconduct.
Schools may try to use the same information for every FBA. They may cherry-pick information to reach the schools' preferred conclusion and recommended action. As a result, a BIP is ineffective for a student.
The goal of an FBA is to understand a student's behavior. This can include triggers or outcomes. The who, what, where, and when of a student's behavior is relevant.
For example, a student frequently misbehaves during math class. The school looks at the student's academic record and assumes they're struggling in math. A complete FBA, however, would find that:
- The student has math class immediately before lunch
- The student is often bullied during lunch
- By acting out during math class, the student gets a time-out during lunch and avoids the bullies
- The student's struggles in math are also due to not being able to focus out of concern of being harassed during lunch
The FBA determines that the issue isn't math. The student would likely have the same problems with a history class. The issue is that a student is misbehaving to avoid a situation.
Special Circumstances
For certain serious incidents of misconduct, schools don't have to follow the manifestation determination guidelines. These special circumstances involve serious cases of misconduct:
- A student carries a weapon to school or possesses a weapon at school, on school grounds, or at school events
- A student knowingly possesses, uses, sells, or solicits solicits controlled substances or illegal drugs while at school, on school grounds, or at school activities
- A student causes serious bodily injury to another person while at school, on school grounds, or at school events
In these special circumstances, schools may place a student in an interim alternative educational setting for up to 45 days.
During these placements, schools must continue to provide special education services. These services don't have to be identical to what a student normally receives. These accommodations must be effective and allow a student to continue to work toward their educational goals.
Seclusion and Restraint
Seclusion and restraint are two disciplinary practices that have come under scrutiny for their negative impact on students. Students subjected to these practices no longer feel safe in school.
Students with disabilities are significantly more likely to be subjected to these practices. By one metric, students with disabilities were 13 percent of a student body but 80 percent of the students subjected to seclusion and restraint.
Wyoming defines seclusion as:
- Removing a student from a classroom or activity
- Isolating that student in a separate area where they are
- Separated from their classmates
- Prevented from leaving the area
It isn't a student-requested break, a disciplinary time-out, an in-school suspension, or a break as required by a student's IEP or 504 Plan.
Wyoming defines restraint as:
- Using physical force, either without or without a device, to restraint a student's free movement
- Restricting either all or part of a student's body
It isn't comforting or calming a student, holding a student's hand or arm while escorting them, intervening in a fight, or using assistive devices as required by a student's IEP or 504 Plan.
When Wyoming Allows Seclusion
Schools may place a student in seclusion when:
- School staff can see and hear the student at all times
- Students have access to normal meals and personal hygiene opportunities
- Meals and bathroom breaks can be supervised to ensure safety
Schools may use seclusion from a student's learning environment as a planned behavior intervention strategy.
When Wyoming Allows Restraint
Schools may use restraint when:
- A trained staff member uses restraint
- Exception: Any staff member may use restraint in situations when a bona fide emergency, such as an imminent risk to anyone's health or safety, exists
- A school uses restraint for the minimum time necessary
If your student has been subjected to seclusion or restraint, contact the Education Law Team at the Lento Law Firm.
Colleges and Universities in Wyoming
Compared to K-12 schools, colleges and universities have fewer responsibilities to their students with disabilities. They no longer have an obligation to identify or evaluate students. Students now bear the cost and responsibility for any testing or assessments.
IDEA and IEPs no longer apply. Students can have a 504 Plan, and these plans include not just classroom support but also extracurricular accommodations.
Once in college, students are in charge of informing a school of their disability. They must provide documentation of their disability and initiate contact. Each school sets its policies for requesting accommodations.
The University of Wyoming uses an online form. It covers all types of accommodations, from academics to housing. Other colleges and universities may have different forms for different accommodations or different academic specialties.
Regardless of how students with disabilities can apply, the majority of college and graduate students don't request accommodations. Even students who do apply say that meeting the legal requirements isn't enough to provide sufficient support at the college level.
Not informing a school of their disability deprives a student of access to needed accommodations and support. If they face misconduct allegations, this lack of notification can make it more difficult for them to explain why schools should consider their disability as relevant to a disciplinary hearing.
For example, a student is accused of academic misconduct. Their so-called misconduct relates to their disability, and they want to use proof of their disability as a defense to their actions. The question becomes who can help a student with this process.
Navigating Disciplinary Procedures
Colleges and universities don't have to consider a student's disability during a disciplinary hearing. Schools have no requirement to conduct a manifestation determination meeting.
For students facing misconduct allegations, finding support can be challenging. Most disability services offices aren't equipped to handle disciplinary issues. Their focus is on accommodations and documentation. While they may have a grievance process, its focus is on accommodations, not disciplinary issues.
If a student is facing misconduct allegations, they shouldn't assume that disability services staff can assist them. Disciplinary issues are usually outside of their professional responsibilities, and they may not be able to properly advise students facing misconduct allegations. Their job isn't to advocate for students in disciplinary hearings.
If college or graduate students are facing disciplinary action, they need an advocate, someone who will be on their side. The Education Law Team at the Lento Law Firm knows the challenges of navigating a school's disciplinary process when you have a disability. We help our clients understand their options and protect their goals and future.
Protect Your Education
Having a disability doesn't mean a student can't succeed in school. It simply means they need to take a different path to reach their educational goals.
Unfortunately, unequal disciplinary action can hamper a student's educational journey. Schools may fail to consider how a disability can affect a student's behavior. Lack of accommodations can increase behavioral issues.
If you or your student is facing disciplinary action that relates to a disability, contact the Education Law Team at the Lento Law Firm. We assist students and families in Wyoming and nationwide. Our focus is on collaborative solutions that support student's education and goals. Call us at 888-535-3686 or fill out an online form and send it to us today.
