Nebraska is home to the University of Nebraska system and Creighton University, to name a few. It also has notable public school districts serving primary and secondary students, including Omaha Public Schools, Chadron Public Schools, and Westside Community Schools. Like in other states, these Nebraska colleges, universities, and high schools have the authority to establish codes of conduct and hold students accountable for adhering to these standards. However, when creating these policies, some educational institutions fail to consider the needs and rights of students with disabilities adequately. This oversight can result in students facing unfair disciplinary processes at various educational levels.
It's important to stand up for your rights. However, challenging an educational institution's misconduct allegations is daunting, even when the playing field is level. The difficulty is compounded when schools fail to provide accommodations for students with disabilities or mental health issues, further skewing the disciplinary process in favor of the institution. While Nebraska colleges, universities, and high schools have the right to discipline their students, they also have an obligation to ensure fair treatment for all. By creating conduct policies that overlook the needs of students with disabilities or fail to consider how disability rights intersect with other school policies, educational institutions do a disservice to their students.
Defending oneself against academic or other misconduct charges should not be overwhelming. However, for most students, it is a formidable challenge. If you or your student are facing allegations of violating your school's code of conduct and believe disability is a factor in the charge, it is crucial to seek the guidance of a student defense attorney experienced in navigating the school's disciplinary procedures, like the Student Defense Team at Lento Law Firm. Contact us today at 888.535.3686 or through the online form to learn more about how we can fight for your rights.
The Rights of Students with Disabilities
Students with disabilities have several rights protected by federal laws, such as the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act, and the Americans with Disabilities Act (ADA). These rights include:
- Free and Appropriate Public Education (FAPE): Under IDEA, students with disabilities in high school have the right to receive a free and appropriate public education tailored to their individual needs.
- Individualized Education Program (IEP): High school students with disabilities are entitled to an IEP, a written document outlining their educational goals, accommodations, and support services.
- Accommodations: Both high school and college students with disabilities have the right to reasonable accommodations that ensure equal access to education. These may include extended time on tests, assistive technology, or modified course materials.
- Accessibility: Educational institutions must provide accessible facilities, services, and programs to students with disabilities.
- Non-discrimination: Schools cannot discriminate against students based on their disabilities in admission, recruitment, academics, or extracurricular activities.
- Confidentiality: Information about a student's disability must be kept confidential and shared only with those who need to know to provide accommodations or support services.
- Grievance procedures: Schools must have a grievance process for students to report disability-related discrimination or lack of accommodations.
While high school students with disabilities are automatically entitled to services under IDEA, college students must self-identify, provide documentation of their disability, and request accommodations through their school's disability services office. Colleges and universities are required to provide accommodations under Section 504 and the ADA, but the specific accommodations may differ from those provided in high school. When institutions fail to provide students with disabilities the accommodations they need, the student can end up being unfairly disciplined in various ways.
Student Disabilities and Academic Misconduct in Nebraska High Schools and Colleges
Most high schools in Nebraska implement academic honesty policies to maintain the integrity of the learning environment and ensure a level playing field for all students. These policies typically prohibit behaviors such as cheating, plagiarism, bribery, violating test conditions, and receiving unauthorized assistance on schoolwork. Failure to adhere to these rules can result in various punishments, ranging from redoing an assignment to suspension or expulsion.
While some school districts or counties provide guidelines for academic integrity rules, many high schools have the autonomy to create their own policies. This lack of consistency often leads to vague definitions of academic dishonesty and leaves significant discretion to classroom teachers and school administrators when determining punishments.
A critical issue arises when high school academic misconduct policies fail to address the specific needs of students with disabilities. For example, a policy might consider taking extra time on an examination as a violation of academic integrity, even though extended exam time is a common accommodation for students with learning difficulties. Without explicitly stating how they accommodate students with disabilities about academic integrity, high school administrators may have the power to accuse and punish these students for academic misconduct unjustly.
Colleges and universities operate a little differently when it comes to academic policies. While the Americans with Disabilities Act mandates that colleges and universities provide equal access to students with disabilities, the issue of accommodations becomes complex when considering academic integrity. Institutions must balance upholding academic standards and ensuring equal access for all students.
Unfortunately, some universities, even in Nebraska, struggle to provide equal treatment to students with disabilities in cases of alleged academic misconduct. For students and their families, ensuring that universities follow due process and adhere to their own standards in such cases can be a daunting task. It is even more challenging when the university fails to provide appropriate accommodations for a student's disability.
If you are facing charges of academic misconduct that you believe are related to your disability or mental health, it is crucial to inform your school as soon as possible if you haven't already done so. Contact your school's office of disability support services and consider seeking the assistance of a student defense attorney to help you navigate the case and prepare your defense.
While colleges and universities do not require students to disclose their disabilities at any point, it is generally beneficial to inform your school about your disability from the start of your attendance. This proactive approach allows you to request accommodations from professors in the classroom and during examinations, reducing the likelihood of being accused of cheating.
Student Disabilities and Code of Conduct Violations
High school and college students can face disciplinary action for a wide range of code of conduct violations beyond academic misconduct. Some common examples include:
High School:
- Bullying, harassment, or intimidation
- Fighting or physical altercations
- Possession or use of weapons, drugs, alcohol, or tobacco products on school property
- Vandalism or destruction of school property
- Insubordination or disrespect towards teachers or staff
- Violation of dress code policies
- Excessive tardiness or unexcused absences
- Inappropriate use of technology, such as cell phones or school computers
- Hazing or initiation rituals
- Violation of parking or driving regulations on school property
College:
- Sexual misconduct, such as sexual harassment, assault, or stalking
- Possession or use of illegal drugs or controlled substances
- Underage drinking or providing alcohol to minors
- Hazing or endangering the mental or physical health of others
- Hate crimes or discrimination based on race, gender, sexual orientation, or other protected characteristics
- Theft or possession of stolen property
- Unauthorized access to or misuse of university facilities, equipment, or resources
- Violation of residential life policies, such as quiet hours or guest regulations
- Disorderly conduct or disruptive behavior that interferes with university activities or operations
- Violation of university policies related to student organizations, such as misuse of funds or failure to follow registration procedures
Consequences of Code of Conduct Violations
The consequences of violating student codes of conduct can vary depending on the severity of the violation and the specific policies of the high school or college. However, some common consequences include:
High School:
- Verbal or written warning
- Detention or in-school suspension
- Out-of-school suspension
- Expulsion
- Loss of privileges, such as participating in extracurricular activities or attending school events
- Community service or restorative justice measures
- Mandatory counseling or educational programs
- Restitution for damaged property
- Placement in an alternative educational setting
- Referral to law enforcement for criminal charges, if applicable
College:
- Verbal or written warning
- Disciplinary probation
- Suspension from the college or university
- Expulsion from the college or university
- Loss of scholarships or financial aid
- Removal from student housing
- Loss of privileges, such as participating in extracurricular activities or using university facilities
- Mandatory counseling or educational programs
- Restitution for damaged property
- Notation of the violation of the student's academic record
- Referral to law enforcement for criminal charges, if applicable
In both high school and college settings, students facing disciplinary action have the right to due process, which typically includes the opportunity to present their case, provide evidence, and appeal decisions. When a student with a disability is involved in a disciplinary matter, it is crucial to involve a student defense attorney who can advocate for the student's rights and ensure that the school follows appropriate procedures and considers the student's disability in the decision-making process.
Manifest Determination
Manifestation determination is a process used to determine whether a high school student's misconduct is a direct result of their disability. This process is required under the Individuals with Disabilities Education Act for students with disabilities who have an IEP and face disciplinary action that may result in a significant change in their educational placement, such as suspension for more than ten consecutive school days or expulsion.
The primary purpose of a manifestation determination is to ensure that students with disabilities are not disciplined for behavior that is a direct consequence of their disability or the school's failure to implement their IEP properly. During the manifestation determination review, the student's IEP team, including the parent(s), relevant school personnel, and other qualified individuals, must consider all relevant information, such as:
- The student's IEP and placement
- Teacher observations
- Relevant information provided by the parents
- The student's disability and its impact on behavior
If the team determines that the student's misconduct is a manifestation of their disability or a result of the school's failure to implement the IEP, the student cannot be disciplined in the same manner as students without disabilities. Instead, the school must address the student's behavior through appropriate support, interventions, and modifications to the IEP or educational placement.
Manifestation determination is primarily used in the context of high school students with disabilities who are protected under IDEA. Colleges and universities, however, are not subject to IDEA. So, while colleges and universities may not be legally obligated to conduct manifestation determinations, they must still consider a student's disability when making disciplinary decisions and ensure that the student is not being discriminated against or punished for behavior directly resulting from their disability. Institutions of higher education should have established policies and procedures for handling disciplinary matters involving students with disabilities, which may include a process similar to manifestation determination to ensure fair treatment and compliance with disability laws.
The Role of the Office of General Counsel in Nebraska
The Office of General Counsel in Nebraska plays a vital role in guiding educational institutions on legal matters related to students with disabilities. As the school's legal advisor, the office ensures compliance with relevant federal and state laws, such as the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, which prohibit discrimination against students with disabilities.
One of the primary responsibilities of the Office of General Counsel is to provide legal advice to school administrators, faculty, and staff on issues related to accommodating students with disabilities. This may include interpreting legal requirements, developing policies and procedures, and handling specific student situations. The office may also review and provide input on the school's policies and procedures related to students with disabilities, including codes of conduct, accommodation request processes, and grievance procedures.
In case of a legal dispute involving a student with a disability, such as a discrimination complaint or a disagreement over accommodations, the Office of General Counsel may represent the school in legal proceedings or negotiations. This role is crucial in protecting the school's interests while ensuring that the rights of students with disabilities are respected and upheld.
Conversely, in Nebraska, the nonprofit Disability Rights Nebraska advocates for people with disabilities. This program is part of the National Protection & Advocacy system required by the United States Congress in every state and territory in the U.S.
Disability Rights Nebraska has the authority to enforce state and federal laws that affect the rights and various benefits, services, and supports available to individuals with disabilities. This includes investigating allegations of abuse and neglect in institutions. While Disability Rights Nebraska advocates on behalf of people with disabilities, it is recommended that students with disabilities facing accusations of misconduct at their high school, college, or university consult a student defense attorney.
Nebraska's Disciplinary Process for Students with Disabilities
The disciplinary process for students with disabilities in Nebraska may vary slightly between high schools and colleges/universities due to differences in applicable laws and regulations. However, the general process typically involves the following steps:
- Incident and reporting: When a student with a disability allegedly violates the school's code of conduct, the incident is reported to the appropriate school officials, such as a teacher, administrator, or the office responsible for handling disciplinary matters.
- Investigation: The school conducts an investigation into the alleged misconduct, gathering evidence and interviewing relevant parties, including the student, witnesses, and any victims.
- Notification: The student and their parents (in the case of high school students) are notified of the alleged violation, the potential consequences, and their rights under the school's policies and applicable laws.
- Manifestation determination (high school): For high school students with disabilities who have an IEP, the school must conduct a manifestation determination review to assess whether the misconduct directly resulted from the student's disability or the school's failure to implement the IEP properly.
- Disciplinary hearing: The student is allowed to present their case and respond to the allegations in a disciplinary hearing. This hearing may involve school administrators, teachers, and other relevant parties.
- Accommodations and support: Throughout the disciplinary process, the school must ensure that the student's disability is considered and that they receive appropriate accommodations and support, as outlined in their IEP or 504 plan.
- Decision and consequences: After considering all the evidence and the student's disability, the school makes a decision regarding the student's responsibility for the alleged misconduct and determines appropriate consequences, if any. These consequences should align with the school's policies and the student's rights under disability laws.
- Appeal process: If the student and/or their parents disagree with the decision or believe that the student's rights have been violated, they may have the opportunity to appeal the decision through the school's established appeal process.
Throughout the disciplinary process, schools in Nebraska must ensure that they comply with relevant federal and state laws protecting the rights of students with disabilities, such as the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act, and the Americans with Disabilities Act.
The Lento Law Firm Can Help You Get the Support Your Child Deserves
The Lento Law Firm's Student Defense Team is well-equipped to assist students with disabilities who face academic or code of conduct violations. With extensive experience defending students' rights and navigating complex disciplinary processes, the team can provide invaluable support to high school and higher education students.
The Student Defense Team focuses on protecting the student's rights under disability laws, such as the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act, and the Americans with Disabilities Act. They review the student's existing accommodations to ensure proper implementation and gather relevant evidence, including documentation of the student's disability, witness statements, and expert opinions, to demonstrate how the disability may have impacted the student's behavior. The Lento Law Firm's Student Defense Team provides skilled representation during disciplinary hearings, manifestation determination reviews (in high school cases), and other proceedings, ensuring the student's rights are protected and their case is presented effectively.
In addition to legal representation, the Lento Law Firm's Student Defense Team offers emotional support to students and their families throughout the challenging disciplinary process. They communicate and negotiate with school administrators, teachers, and other relevant parties to seek a fair resolution that considers the student's disability and individual circumstances. If the initial disciplinary decision is unfavorable or the student's rights have been violated, the team can assist with the appeal process, working tirelessly to secure a more just outcome.
Don't let your child's special education be compromised. Contact the Lento Law Firm's Education Law Team today at 888.535.3686 or through the online form to learn more about how we can support you and your child.
