In Texas, one of the ways schools can discipline students is through placement in an alternate education program. Known as disciplinary alternative education programs (DAEP), this disciplinary action takes students out of their normal classrooms and school routine for the length of their placement.
This change to routine can be especially challenging for students with disabilities. In general, students with disabilities are more likely to face disciplinary action than their non-disabled peers.
School staff and administrators may not fully appreciate how a student's disability can affect their conduct or their ability to tell right from wrong. As a result, they may fail to properly support a student. For many students, disciplinary alternatives can help minimize the likelihood of future misbehavior.
In other cases, a student's misconduct may relate to an undiagnosed disability. If a school refuses to assess a student for a disability, families have avenues to address the issue and get their student the help they need.
Special education services aren't a luxury or an add-on to a student's education. For students with disabilities, accommodations are a key part of their education.
If your student has a disability and is in or facing a DAEP placement, you don't have to simply accept a school's placement decision. The Education Law Team at the Lento Law Firm supports families throughout Texas to understand their options for both disability and discipline issues in K-12 schools. We promote student-centered decisions that focus on your student's education and future. Call us at 888-535-3686 or fill out an online form.
What's a DAEP?
Beginning in the 1990s, Texas added disciplinary alternative education programs (DAEPs) to schools' options for addressing student misconduct. These alternative education programs remove students from their normal classroom and school schedule for a set period of time.
Texas requires all K-12 school districts to have a DAEP. All DAEPS:
- Must not occur in a student's regular classroom and must be physically located elsewhere
- Can be in a different location or building from a student's regular school
- Must separate students placed in DAEP from other students
- Provide instruction that focuses on English, math, science, history, and self-discipline
- Support students' educational and behavioral needs
- Officer supervision and counseling services to students
- Employ teachers who meet Texas's certification requirements
For students with disabilities, these requirements include continuing to provide special education services during a student's DAEP placement. What can change, however, is what services a student receives.
Types of Placements
DAEP placements are either mandatory or discretionary. Mandatory placements mean a student must be placed in a DAEP. Discretionary placements mean a student may be placed in a DAEP.
Texas law and school policies dictate what behavior falls under a mandatory placement and what ends up with a discretionary placement. School codes of conduct should include a summary of what behavior may result in a DAEP placement.
Highland Park Independent School District's Code of Conduct lists behavior and conduct that will result in mandatory and discretionary placements. For example, giving another student at a school event will result in a mandatory placement.
A third type is an emergency DAEP placement. These occur when a student is a threat to the school community or unruly, disruptive, or abusive to a level that interferes with normal classroom or school activities. In these situations, a school staff member has to give a student a verbal explanation for the removal, and the school must conduct a meeting within ten days.
What are IEPs and 504 Plans?
Three federal laws form the foundation of K-12 disability rights in education. These laws, in fact, go beyond the K-12 years, starting with early intervention services for newborns and toddlers and extending into post-high school transition services.
These three laws are the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act (ADA). All three laws are also incorporated into Texas law.
For K-12 students, IDEA is the most relevant and the one that students and families will likely hear about the most. IDEA establishes that schools must locate and evaluate toddlers and children within their boundaries who may have a disability.
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 modifications and accommodations a school must provide to a student.
If students don't qualify for an IEP, they may qualify for a 504 Plan. The ADA and Section 504 both use a wider definition of disability. One quirk of 504 Plans is that they aren't required to be written. Families should request that a school have their student's 504 Plan in writing. This can avoid confusion and miscommunication about a student's agreed-upon services.
Getting Help
The Education Law Team at the Lento Law Firm has four offices in Texas. Families can reach out to any of our offices, which are located in Houston, El Paso, Austin, and Dallas.
We handle education issues related to both discipline and disabilities, giving us a unique ability to handle cases that involve both. We combine our knowledge of federal and Texas laws with an appreciation of each school district's unique qualities.
Manifestation Determination
In some cases of student misconduct, schools may have to consider how a student's disability influenced or affected their misconduct. This is known as manifestation determination, although Texas schools often use the term Admission, Review, and Dismissal Committee Meetings (ARD) when discussing manifestation determination meetings.
Manifestation determination acknowledges that some disabilities affect an individual's behavior and ability to understand the difference between appropriate and inappropriate conduct. In other cases, ineffective support and accommodations, or a school failing to provide agreed-upon support and accommodations, may cause student behavioral issues.
When manifestation determination applies, schools must conduct a meeting with parents or guardians within ten days of a decision to change a student's placement. An ARD meeting, or manifestation determination meeting, focuses on 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 be case-by-case decisions.
The law for manifestation determination comes from IDEA, meaning students with IEPs fall under the law. Schools, however, may have to consider a student's disability in some disciplinary cases and when that student has a 504 Plan.
Spring Branch ISD, for example, has slightly different procedures for students who have IEPs and students who have 504 Plans. Students with an IEP will be referred to an ARD Committee, while 504 Plan students will be referred to a 504 Committee.
Two outcomes are possible from these meetings:
If the answer to both questions is no, a school can discipline a student based on the school's policies and code of conduct. Any disciplinary action must be similar to how the school would discipline any other student who engaged in similar conduct.
If the answer to either of the above questions is yes, a student should return to their normal classroom and school schedule. The exception is if families and school staff agree that a change of placement, such as attending a DAEP for a set period of time, is necessary or would benefit the student.
Manifestation of a Disability: What Next?
When an ARD Committee meeting finds a student's conduct was a manifestation of their disability, this isn't the end of the process. Rather, it's a first step to acknowledging the potential reasons for a student's misconduct and determining how to address them to prevent future behavioral issues.
If the ARD Committee found that a school failed to implement all or part of a student's IEP or 504 Plan, the school must immediately work to correct these errors and begin providing the student with the previously 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.
Unless a student has already undergone one, the next step will be for a school to conduct a functional behavior assessment (FBA). The Texas School for the Deaf provides a good overview of the FBA process. Following the FBA, school staff and parents will craft a Behavioral Intervention Plan (BIP).
If a student already has an FBA or BIP, the meetings should focus on what changes may be needed. In some cases, it may be worth asking if a student needs a new FBA.
FBAs and BIPs
A Functional Behavioral Assessment (FBA) evaluates a wide range of data about a student. The goal of an FBA is to better understand and develop a theory about a student's behavior.
The information gleaned from an FBA forms the foundation for a student's Behavioral Intervention Plan (BIP). BIPs are similar to IEPs. The difference is that IEPs focus on academic goals, and a BIP supports behavioral goals.
The goal of FBAs and BIPs is to:
- Find an explanation for the ‘why' of a student's behavior
- Support a student to enable them to improve their behavior
- Prevent future misconduct or behavioral issues
Just as IEPs and 504 Plans need occasional revision to reflect a student's growth and changes, BIPs may also require occasional revisions to best support a student.
Relevant Behavioral Information
Just as an IEP should be about more than a student's disability, FBAs and BIPs should be about more than a student's misconduct. The more FBAs and BIPs can be tailored to the individual student, the better the likely outcome. Two students have the same disability or behavioral issues, but what works for one student may not support or help the other student.
FBAs are most successful when they collect as much information as possible about a student and not just on their disability. An FBA that addresses the who, what, where, and when of a student's behavior is more likely to be useful.
This may also include details about a student's home life. For example, a student's behavioral issues may relate to coming to terms with parents divorcing. Similarly, a student being bullied may act out in other ways.
A comprehensive FBA is more likely to provide the basis needed for a more personalized BIP and a higher likelihood of addressing underlying issues and reducing the risk of future misconduct.
Where FBAs are less likely to be effective is if schools attempt to treat all students the same or fail to consider the differences in how disabilities manifest in different students. School staff may cherry-pick information to push an assessment toward a school's preferred conclusion and recommended action.
When an FBA is generic or incomplete, a BIP is more likely to be ineffective for a student. When a BIP is ineffective, a student is less likely to make needed changes and have a repeat of misconduct.
The Education Law Team at the Lento Law Firm supports our clients in making sure that schools conduct thorough FBAs and use that information effectively. Your student shouldn't be punished or face future allegations of misconduct because a school failed to properly evaluate your student.
Special Circumstances
For certain serious incidents of misconduct, schools don't have to follow the manifestation determination guidelines. In Texas, these special circumstances mean a school can remove a student for up to 45 days without conducting a manifestation review. The following are special circumstances in Texas:
- A student carries or possesses a weapon to school, on school grounds, or at a school event
- A student knowingly possesses, uses, sells, or solicits controlled substances or illegal drugs while at school, on school grounds, or at a school activity
- While at school, on school grounds, or at a school event, a student causes another person to serious bodily injury
In these special circumstances, a student's disability doesn't factor into their DAEP placement.
Manifestation Determination and FBAs in Practice: An Example
Together, the goal of manifestation determination and FBA is to understand a student's behavior, including triggers. An FBA may also uncover that a situation that seems obvious or straightforward isn't.
For example, Dan attends Lake Travis High School in Austin. Dan faces a potential discretionary DAEP placement after being accused of participating in group bullying.
Between the ARD Committee meeting and Dan's FBA, the district finds that:
- Dan did make statements and comments to another student that were verbal bullying.
- Dan didn't stop making comments when the other student asked him to.
- Dan has autism and has a documented history of misunderstanding social cues.
- Other students convinced Dan that the comments were funny and not mean and that the bullied student was in on the joke, too.
- Because of Dan's history of struggling with social cues and other students encouraging his behavior, Dan failed to understand that their “jokes” were actually a form of bullying.
Here, while Dan did participate in bullying, his disability prevented him from understanding that his conduct was wrong. He listened to other students instead of the bullied student.
Accommodations in DAEPs
If a student's misconduct doesn't relate to their disability, that student may be placed in a DAEP. That a student with disabilities is facing disciplinary action, such as DAEP placement or a suspension, doesn't mean they lose their right to special education services. Schools must still provide special education services and accommodations to students in a DAEP placement.
What can change is what services and accommodations a district offers a student in a DAEP placement. Districts don't have to continue to provide the same services listed on an IEP or 504 Plan. Services and accommodations must still be effective, but they don't have to be identical to what a student receives in their regular classroom or as part of their normal school routine.
Undiagnosed Disabilities
In some situations, a student's misconduct may relate to an undiagnosed disability. In these cases, parents or guardians should request that a school assess their student for a disability. This may not end a student's DAEP placement, but it can benefit the student in the long term.
All districts are required to have a Child Find program. The purpose of Child Find is to locate, identify, and evaluate any baby, toddler, child, or teenager suspected of having a disability.
These programs tend to focus on younger students. This makes sense given the benefits of early intervention, but the reality is that disabilities can appear at a wide range of ages.
Dyslexia, for example, sometimes isn't recognized until a child begins reading at ages 5 or 6. Moreover, as dyslexia has no relationship to intelligence, some students may be able to mask their symptoms and go undiagnosed for years. In these cases, dyslexia may only become noticed when a student faces increased academic challenges or difficulty.
In other words, that someone isn't diagnosed with a disability at a young age doesn't mean they don't have a disability. As long as a student hasn't graduated from high school, they're eligible for evaluation for a disability.
For students with undiagnosed disabilities who are accused of misconduct, their behavior may relate to that disability. Unable to get the support they need – perhaps not even understanding why they're struggling in school or having problems – children and teenagers may act out.
If you suspect your student has an undiagnosed disability that relates to their misconduct, you can request an evaluation. A school cannot refuse to assess a student because they're “too old” or “too close” to graduation.
Alternatives to Discipline
For some disciplinary cases, parents or guardians may agree that a student did commit misconduct and should face the consequences of their actions. Where they may disagree with a school is in the school's preferred disciplinary action.
For mandatory DAEP placements and when a student's misconduct doesn't relate to their disability, schools are limited in what they can do. For discretionary placements, parents and guardians should talk with school administrators and staff about other disciplinary options.
Brownsville ISD, for example, lists over twenty discipline management techniques in its code of conduct. These can be used as alternative or restorative disciplinary practices.
An increasing number of schools are using Multi-tiered System of Supports (MTSS) and positive behavioral interventions and supports (PBIS) as discipline alternatives. The Texas Education Agency describes MTSS as supporting the whole child, and the system recognizes that academic, behavioral, mental health, and wellness issues are frequently related.
Katy ISD uses a three-tier system for its MTSS framework. All students qualify for Tier I, with Tiers II and III intended for students who need more support.
Frisco ISD uses a similar program. The district emphasizes academic, behavioral, and social-emotional needs as well as parent involvement.
PBIS focuses on reinforcing positive and pro-social behavior. PBIS views improving behavior and conduct as something that can be taught. United ISD in Laredo is one of several school districts that use PBIS as part of its discipline management program.
These programs may not replace disciplinary action. They can be beneficial in their role in acknowledging that behavior is a learned skill and that giving students the tools they need to succeed in multiple parts of life can decrease misconduct in the long term. This is especially true for students with disabilities, and some schools may even incorporate MTSS or PBIS into a student's IEP or 504 Plan.
Protect Your Child's Education
How a student's disability affects their education and conduct isn't always straightforward or clear. It can often be a complex combination of reasons, from inadequate accommodations to trouble differentiating right from wrong. For many of these students, support and education are often more powerful than disciplinary action.
For students with disabilities, DAEP placements can be especially challenging. They take a student out of their familiar environment and may also alter their support and accommodations. This is why students with disabilities facing a DAEP placement should undergo a manifestation determination.
If your student has a disability and is facing disciplinary action, the Education Law Team at the Lento Law Firm can help. We work with a variety of issues related to disabilities and discipline. We can help students who have undiagnosed disabilities and need to be evaluated. We can assist students who already have a qualifying disability but aren't receiving the support they need in school.
Whatever the reason, your student deserves not to have their disability interfere with their education. Call us at 888-535-3686 or fill out an online form.
