Disability as an Issue in Student Defense

Colleges, universities, and high schools have the right to create codes of conduct and hold their students accountable to them. When designing these policies, however, some educational institutions don't consider the rights and needs of students with disabilities. The result at some colleges and universities, and even some high schools, is a student who goes through an unfair disciplinary process.

Going up against an educational institution to defend oneself from a charge of misconduct is intimidating when the playing field is level. When accommodations aren't made for a student with disabilities or a mental health issue, it skews the disciplinary process even further in favor of schools. Although colleges, universities, and high schools have a right to discipline their students, they also have a right to treat everyone fairly. When they create conduct policies that ignore the needs of students with disabilities or don't consider how disability rights interact with other school policies, they do a disservice to their students.

Defending yourself from a charge of academic, sexual, or other misconduct at your school shouldn't be a behemoth task but unfortunately for most students, it is. If you're a university student who's been charged with violating some code of conduct at your school and you feel your disability is implicated in the charge, you should consider contacting a student defense legal specialist who has experience guiding students through university disciplinary procedures.

The Disciplinary Process for Students with Disabilities

If you are a college or university student with a disability or mental health problem, you are not excused from your institution's disciplinary process because you have a disability. However, your school is required to make accommodations for your disability while you're a student there, and those accommodations extend to disciplinary proceedings.

If you are brought up on misconduct charges of some kind—whether academic misconduct, violating the student code, or a Title IX charge—and your university is aware of your disability, you should ask for the accommodations you need.

Examples of disability accommodations in college disciplinary proceedings

• Having a counselor, personal assistant, or trusted individual present alongside students at all disciplinary meetings and hearings
• Holding a disciplinary meeting in a space that doesn't cause further distress
• Pausing the hearing if it becomes too overwhelming for the student
• Asking a disciplinary hearing committee to leave the room for a few minutes so the student can feel more ready to continue
• Allowing a student to provide written testimony to the evidence
• Directly asking students how to accommodate their needs

Some students don't notify their colleges or universities about their disabilities or mental health issues. If your college launches formal disciplinary proceedings against you, however, you should let your school's disability support services or similar office know as soon as possible.

Colleges and universities don't “go easier” on students with disabilities during disciplinary proceedings. Rather, they want all students to receive equal treatment in all aspects of university life. Schools should make reasonable adjustments to their disciplinary processes so that students with disabilities are treated fairly.

Student Disabilities and Academic Misconduct

According to the National Center for Education Statistics, 19 percent of all U.S. college students have a disability. While colleges and universities must provide equal access to postsecondary institutions for students with disabilities per the Americans with Disabilities Act (ADA), the question of accommodation becomes tricky when considering academic integrity. Institutions must strike a balance between the two, upholding academic standards while guaranteeing equal access for everyone.

It's not surprising, then, that some universities fall short and don't provide equal treatment to students with disabilities in matters of academic misconduct. Ensuring universities use due process and follow their own standards in academic misconduct cases is burdensome for a student and their parents to do alone—consider how much more complicated your case will be if your university fails to provide accommodations for your disability.

What should you do if you're charged with academic misconduct and it involves your disability?

If you're facing a charge of violating your school's academic integrity policy and feel that it's related to your disability or mental health, you should let your school know as soon as possible about your disability if you haven't already done so. Contact your school's office of disability support services. As soon as you receive notification that you have been formally charged with an academic misconduct violation, you should also contact a student defense attorney-advisor to help you work through the case and prepare your defense.

Do you have to notify your college or university about your disability?

Colleges and universities don't require students to disclose their disabilities when they apply, or at any other time. You don't have to share that information with your school if you don't feel comfortable doing so. If you do decide to disclose your disability to your university, it won't hurt your chances of gaining admission, either. It's just so the school can ensure they have the right programs, facilities, and resources to accommodate your needs.

From an academic misconduct standpoint, it's usually better that your university knows about your disability as soon as you start attending. This way, you can ask professors for accommodations in the classroom and on examinations, and they won't automatically consider it cheating. If your university knows about your disability or mental health issue from the start, it can make for a more productive college experience for you overall. Remember that ultimately, disclosing your disability is a personal choice.

Balancing academic integrity with disability accommodation

Disability and academic conduct policies vary across schools, so it's up to you to understand what resources your university has available to accommodate your disability or mental health issues. It's also your responsibility to know what the academic integrity policies are at your college or university. Universities typically expect all students to maintain high standards of academic honesty, whether they have a disability or not. Before you can receive accommodations for your disability, you usually must get permission first.

Examples of reasonable accommodations universities may make for disabilities

Accommodations don't compromise the fundamental elements of the course or curriculum. They simply reduce barriers that those with disabilities might face, providing an alternative way to complete the course requirements while maintaining academic standards. Examples include:

• Allowing students to tape or record lectures
• Allowing students additional time to complete in-class assignments or exams
• Professors giving students a copy of their lecture notes or outline
• Using a reader, scribe, or word processor for exams
• Optional oral exam
• Using a calculator for exams
• Taking exams in rooms with fewer distractions
• Using devices that assist with grammar or spelling for essay exams

Not every college or university may offer the same accommodations, so it's vital that you contact your campus disability services before attempting to utilize any of these adjustments.

Student Disabilities and College Sexual Misconduct

Sexual misconduct on college campuses is a serious issue receiving a lot of media attention. If you're accused of sexual misconduct or violating Title IX on your college campus, expect your university to take the claim very seriously. Schools across the country are under pressure to deliver swift justice for victims of sexual misconduct but doing so can deny the accused the opportunity to defend themselves.

When universities don't handle sexual misconduct or Title IX cases properly, it negatively impacts everyone involved, especially if the accused student has disabilities. If colleges don't provide reasonable accommodations for an accused student with a disability during the disciplinary process, it could result in an unfair decision. The intersection of Title IX regulations and disability rights on campus is complex, and sometimes universities pursue justice for sexual misconduct at the expense of a student's disability rights.

Students can work with an attorney-advisor to help them ensure their rights are protected during a disciplinary procedure. A student defense attorney will know which questions to ask and how to hold a university accountable for reasonable disability accommodations.

Types of college sexual misconduct under Title IX

College sexual misconduct is a wide spectrum. All universities that receive federal funding must implement Title IX regulations, which prohibits three types of sexual misconduct:

1. Quid pro quo harassment (condition benefits or services on unwelcome sexual conduct)
2. Hostile environment harassment so severe or pervasive it denies someone equal access to education
3. Sexual violence including sexual assault, dating violence, domestic violence, and stalking

Many schools have expanded their sexual misconduct policies beyond the Title IX definition, however, prohibiting several other forms of sexual misconduct. Specifically, colleges and universities across the U.S. are punishing forms of sexual exploitation.

Examples of sexual exploitation

Sexual exploitation is taking sexual advantage of someone else without consent, for one's own benefit or the benefit of another party. This definition is vague and ambiguous, so some schools provide examples:

• Incapacitating someone else to compromise their ability to consent to sexual activity
• Invasion of sexual privacy, observing others' private sexual or intimate activity without consent
• Exposing genitals or disseminating images of private sexual or intimate activity without consent
• Prostitution
• Demanding a benefit under the threat of disseminating a recording of private sexual or intimate activity
  
  
• Exposing someone else to a sexually transmitted infection without their consent

What Obligations Do Universities Have in a College Sexual Misconduct Case?

When a college or university is handling an allegation of sexual misconduct, it has certain obligations to the accused student and the accuser. Those obligations relate to Title IX, due process, contracts and policies, and other motivations.

Title IX obligations

Universities must afford certain rights to accused students under Title IX. Examples are the right to have an attorney present at a live hearing and the right to cross-examine all witnesses. Because some universities have two sexual misconduct policies—one for Title IX and another that expands upon it—students may not always have these same rights during a sexual misconduct hearing.

Due process obligations

Students have a constitutional right to due process in educational institutions when their important rights, such as access to education, are in jeopardy. The sanction for sexual misconduct could be expulsion, which would undoubtedly impact a student's important rights. At a minimum, due process requires schools to notify students of the charges against them, allow accused students to see the evidence against them, and give accused students a chance to defend themselves.

Policy obligations

Colleges and universities create policies that both they and students abide by, which form a sort of contract between the institution and its students. When students pay tuition, schools can't arbitrarily dismiss the student. These obligations also play into a school's disciplinary process during a sexual misconduct case.

Other motivations

Schools may have to guarantee student rights to protect their reputation and student retention rates. Protecting student rights also helps universities uphold their moral stances as ethical institutions.

Title IX and Disability Rights on College Campuses

Title IX cases and sexual assault negatively impact students with disabilities to a greater extent than students without disabilities. Students with disabilities make up a higher percentage of both victims of sexual misconduct and those falsely accused.

How do colleges and universities handle sexual misconduct and students with disabilities?

Schools that do make appropriate provisions for students with disabilities in Title IX cases might include the following:

• Listing campus accessibility services as a sexual misconduct or Title IX resource
• Encouraging the continued interaction between Title IX coordinators and disability services offices
• Make it explicit in general student conduct policies that accommodations may be available in a Title IX grievance setting
• Offering assistance to a respondent (an accused student) in their initial communication providing notice of the complaint
• Allowing the campus disability services office to confirm a student's disability with medical documentation
• Identifying if accommodations used for classes are appropriate during the Title IX grievance procedure
• Documenting reasons for providing or denying requests for accommodation

Not all colleges and universities handle disability accommodations and sexual misconduct cases so well, however. Many issues are still present.

Although students who reach higher education have typically attained independent living skills, the Title IX process at most schools requires familiarity both with policies and formal social situations such as interviews and hearings that most students have no training for. Furthermore, the offices of the Title IX Coordinator and Disability Services are typically wholly separate institutions that communicate with each other very little. Colleges and universities also tend to reach out to students less than K-12 schools when it comes to guaranteeing disability rights.

What makes students with disabilities or mental health issues more likely to be falsely accused of college sexual misconduct?

• Students with disabilities may have a harder time reading social cues in intimate or sexual relationships
• Students may have social behavioral problems that went unaddressed in their K-12 education, so both the student and the university are unaware of their disability
• Pressures on colleges and universities from the media and social movements to automatically side with accusers
• Fellow students or administrators who are intolerant of students with disabilities
• General ignorance by fellow students and administrators of the presentation of psychiatric diagnoses
• Campus sexual assault rules on affirmative consent tend to deemphasize the mental state of the accused

The intersection of Title IX policies and disability rights is complex. Protecting a student's right to be free from discrimination or harassment on the basis of sex could impede on another student's disability rights in education. As a result, many colleges and universities don't make dealing with sexual misconduct on campus fair and equal concerning students with disabilities.

How Students with a Disability Should Handle a Sexual Misconduct Charge

If you're a college student with a disability and you learn that someone else has lodged a sexual misconduct complaint against you, you should reach out to your campus disability services as soon as possible. You should learn what accommodations your school can make available to you throughout the disciplinary process. If you haven't notified your college about your disability, you should also make it known right away. Your school may not be able to act if you wait until after the hearing is over and appeal the decision on the grounds that your disability was not accommodated.

You should also contact a qualified student defense legal advisor with a deep understanding of Title IX and campus sexual misconduct cases. This attorney-advisor can help you secure the accommodations you need from your school as well as help you prepare a defense.

Student Disabilities and COVID-19 Misconduct

Since the spring of 2020, university students have had to contend with COVID-19 conduct policies in addition to regular conduct policies. As these policies are a response to the rapidly evolving public health crisis in the U.S., many of them were hastily put together. As a result, students have faced allegations or sanctions of violating policies that haven't been fair or well-thought-out.

Although universities have had over a year to revise problematic COVID-19 policies, the situation is still changing significantly every week, and students are still chafing under these conduct policies.

Common COVID-19 Conduct Policies at Universities

• Temporary distance learning
• Banned gatherings on and off-campus
• COVID-19 testing requirements
• Mandatory mask-wearing
• Employing student ambassadors
• Training on student health
• Performing a health pledge
• Providing COVID-19 real-time updates
• Amending student codes of conduct

Common COVID-19 Sanctions at Universities

Colleges and universities are using a variety of sanctions to enforce these policies, including:

• Verbal warning
• Cash penalty
• Warning letter
• Isolation
• Suspension from classes
• Removal from academic housing facilities
• Withdrawing funds from student organizations
• Suspension
• Expulsion

Many of these policies and accompanying sanctions are intended to protect the health and safety of students, faculty, and staff on college campuses. But they've also produced unintended negative consequences for students. Relying on student ambassadors to report fellow students who don't stay socially distant has eroded camaraderie on campuses. Banning on-campus gatherings has prevented student clubs and organizations from conducting their regular activities, further damaging many college students' social experience.

COVID-19 Policies and Students with Disabilities and Mental Health Issues

How have COVID-19 conduct policies affected students with disabilities? A primary, direct impact has been on distance learning. In an effort to set up remote or eLearning quickly, many schools neglected to take the classroom needs of students with disabilities into account. For example, students with ADHD have reported feeling too distracted trying to learn at home. Students with major depressive disorder are feeling lonely and isolated at unprecedented levels.

A survey of more than 30,000 students by the Student Experience in the Research University Consortium found that COVID-19 has impacted university students with disabilities to a greater extent than students without disabilities in five key areas:

1. Ease of transition to remote learning
2. Financial impact of COVID-19
3. Student health during the pandemic
4. Students' feeling of belonging and engagement
5. Students' future plans after COVID-19

With many students feeling cut off from their peers, anxious about the future of their education, and having to deal with ambiguous and haphazardly enforced COVID-19 conduct policies, it's no wonder there's been a spike in misconduct and sanctions related to the pandemic. Most students want to follow the rules and keep everyone else safe, but it's hard to know what's off-limits and what's acceptable. Students that already feel isolated and disengaged may be punished by suspension from classes or removal from university dormitories, making their isolation even more severe.

What to do if you're charged with violating the campus COVID-19 conduct policy

In emphasizing stopping the spread of COVID-19, colleges and universities have often neglected mental health and their duties to accommodate students with disabilities. If you are a student with a disability or mental health issue and you've been charged with violating your school's COVID-19 conduct policy and feel it's related to your disability, you should let your university know as soon as possible about your disability.

When it comes to COVID-19 conduct policies, college administrators stress the impact of students' actions more than their intent. From this perspective, they don't focus on whether a student knew they were breaking a COVID-19 rule or not, but more so on how their behavior affected other students, faculty, and staff. When policies are changed quickly and enforced randomly, it leaves students feeling trapped if they're “caught” breaking the rules. Colleges that don't make information about COVID-19 available to students with disabilities as readily as those without are making students with disabilities more likely to violate COVID-19 conduct policies unintentionally.

If you're a college student during the pandemic, your life has already been upended enough. Students who feel their school has neglected their disability rights concerning a COVID-19 conduct violation should contact a qualified student defense attorney-advisor to assist them with the disciplinary process.

Student Disabilities and High School Academic Misconduct

Disability services, including misconduct procedures, differ between high schools and postsecondary educational institutions. In general, high schools assume more responsibility for making disability accommodations, whereas colleges and universities tend to put that responsibility on students.

Major differences between high schools and colleges concerning disability services

High School	College
Follows Individuals with Disabilities Act (IDEA)	Does not follow IDEA; follows Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act, and Civil Rights Restoration Act
School must identify students with disabilities	Students with disabilities must identify themselves to the designated campus office
School can discuss student's academic progress with parents	Students are legal adults and the university cannot discuss academic progress with parents
School develops an Individualized Education Program (IEP)	Students must request their own accommodations and provide supporting documentation; colleges don't provide IEPs

Many of the services public high schools provide to students with disabilities aren't offered in the same way at colleges and universities. For instance, colleges and universities are required to make all of their programs and services physically accessible to all students and accommodate the academic participation of qualified students with disabilities. Colleges do not have to modify academic courses if such adjustments would fundamentally alter the course or place an undue burden on the institution. Colleges also do not conduct testing to help identify learning difficulties, physical, or mental impairments. Finally, universities are not responsible for assigning students with disabilities personal attendants or private tutors (although students may request to have an assistant with them during disciplinary procedures at universities).

Although high schools may take a more active role than colleges in the education of students with disabilities, it doesn't mean that their academic misconduct policies and disciplinary processes are always accommodating to students with disabilities and mental health issues.

Can Your High School Discipline You for Academic Misconduct if You Have a Disability?

High schools have the right to discipline all of their students, whether or not they have disabilities. Schools must ensure the that disciplinary process is fair and equitable for all students, however. Students with IEPs or a 504 plan (from Section 504 of the Rehabilitation Act) must have a free and appropriate public education with services designed to meet their needs. Schools cannot improperly remove students with disabilities from school for a reason related to their disability.

Academic Misconduct in High School

Most high schools have an academic honesty policy that prohibits behavior such as:

• Cheating
• Plagiarism
• Bribery
• Violating test conditions
• Unauthorized assistance on schoolwork

These policies are intended to uphold the integrity of the learning environment and ensure no one student has an unfair advantage over others. All students must follow rules pertaining to academic honesty and may be punished if they don't.

Punishments for academic misconduct may include:

• Re-doing an assignment
• Receiving a failing grade
• A conference between the student, their parents, and the teacher involved
• A conference between the student, their parents, and the principal
• Removal from extracurricular activities
• Permanent notation on school record
• Suspension or expulsion

Some school districts or counties may have guidelines concerning academic integrity rules that they instruct individual schools to follow, but many high schools are allowed to create their own academic honesty policies. These policies are, therefore, not consistent between schools and often vague on what constitutes academic dishonesty. They also tend to leave a great deal of discretion up to classroom teachers and school administrators concerning punishment.

High school academic misconduct policies don't mention students with disabilities

The ambiguity of high school academic dishonesty policies also means they don't usually have provisions for students with disabilities. A policy might mention that taking extra time on an examination as violating the academic dishonesty policy, but extra exam time is a common accommodation for students with learning difficulties. Without explicitly stating how they accommodate for students with disabilities concerning academic integrity, high school administrators could have the power to unfairly accuse students of and punish them for academic misconduct.

Defense Against University and High School Misconduct Charges for Students with Disabilities

When you're accused of misconduct by your college, university, or high school, you can easily feel overwhelmed. You may have never dealt with formal disciplinary processes in an educational setting before, so you're unaware of how quickly things can go wrong.

With a student defense legal advisor in your corner, you'll have the resources necessary to defend yourself and hold your school to account. As a student with a disability, you have protected rights concerning your education and if your college or high school does not respect them, you can take action. An attorney-advisor can help you determine the best course of action and prepare your defense.

Attorney Joseph D. Lento has helped countless students across the country in misconduct cases with their schools. If you want to protect your rights to an education, contact the Lento Law Firm today at 888-535-3686.