The Individuals with Disabilities Education Act (IDEA) fostered a revolution in primary and secondary school treatment of disabled students. The Act required schools to mainstream disabled students into classrooms with their peers, while providing assistive equipment and support services. Mainstreaming disabled students into classrooms doesn't just help the disabled student with academic and social skills. One study shows that classrooms including disabled students also help non-disabled students. IDEA also protected disabled students from discipline, recognizing that school officials were mistaking disability behaviors for misconduct and wrongly punishing disabled students where support services were the appropriate answer. Congress pursued a hugely laudable goal when adopting IDEA. IDEA's implementation has largely achieved that goal. But individual disabled students still face wrongful discipline simply because of the manifestation of their disabilities and inadequate school support and services. If your disabled student faces school discipline relating to your student's disability, retain national school attorney Joseph D. Lento and the Lento Law Firm's student defense team to defend and defeat those charges. Learn and deploy the power of IDEA's protective framework for your disabled student.
Congress enacted IDEA's predecessor, the Education for All Handicapped Children Act (EAHCA), way back in 1975. Before EAHCA's 1975 passage, many state laws effectively barred students with certain disabilities like deafness, blindness, and emotional and cognitive impairments from the classroom. Congress enacted EAHCA requiring reasonable efforts at classroom mainstreaming of disabled students, because those state laws and practices had left as many as four out of five disabled students without an education. The EAHCA, like the current IDEA, required primary and secondary schools receiving federal funding to place disabled students in the least restrictive educational environment alongside their non-disabled peers. Congress replaced EAHCA with the current Individuals with Disabilities Education Act (IDEA) in 1990. While IDEA refined the regulatory framework, it retained EAHCA's key least restrictive environment commitment. So, IDEA has been around and in place for more than a generation, although Congress has also periodically amended IDEA in significant ways.
The Individuals with Disabilities Education Act protects elementary and secondary school students, kindergarten through high school. The individualized education plans that IDEA requires are ubiquitous in elementary and middle schools through high schools, where significant percentages of students are under IEP placements and get IEP special education services. Primary and secondary school students see IDEA's impact every day in the classroom, the presence of students with mental and physical disabilities and their aides providing special services. The Act does not apply to higher education. But the Act has certainly impacted higher education, in ways that an Inside Higher Ed column describes. Many disabled students attend college or university because they benefited from IEP placements, accommodative equipment, and special education services through high school. And non-disabled students, instructors, and administrators should have grown accustomed to the accommodations that those disabled students continue to deserve under other federal disability laws like Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act.
IDEA provides a powerful statutory framework for improving the education of primary and secondary school students who have disabilities. Your student's school officials will know that statutory framework not because they are attorneys or educated in disability laws but because they have adopted forms, procedures, and practices to comply with the framework's requirements. You, too, could just follow the forms and practices. But when you know the law that requires those measures, you have a better sense of the full obligation of school officials. Take the time to understand the following three key constructs of IDEA's statutory framework.
Free Appropriate Public Education
The foundational requirement of the Individuals with Disabilities Education Act is that the school must provide each disabled student with a free appropriate public education or FAPE, as IDEA itself labels the requirement for shorthand. Under IDEA, schools cannot refuse FAPE or FAPE support services to students simply because the students are disabled. Those old days are long gone. IDEA's Section 300.101 states, “A free appropriate public education must be available to all children residing in the state between the ages of 3 and 21, inclusive….” States may extend the age to which the state will provide a free appropriate public education, although those extensions are matters of state, not federal law. And no matter the age of the child, whether age twenty-one or beyond, the education is primary and secondary school education, not college or university education. IDEA's FAPE mandate is, nevertheless, a powerful foundation for the balance of IDEA's framework.
The Least Restrictive Environment
IDEA next mandates that kindergarten through grade twelve schools receiving federal funding educate disabled students in the least restrictive environment. IDEA's mandate involves more than just educating disabled students. IDEA's mandate includes that the education occurs, to the extent possible, with non-disabled students. IDEA's least restrictive environment construct reflects the mainstreaming concept that disabled students should, to the extent possible, receive their education right along with non-disabled students. IDEA's Section 1412(a)(5) defines a least restrictive environment to mean that “[t]o the maximum extent appropriate, children with disabilities … are educated with children who are not disabled….” But IDEA's Section 1412(a)(5) goes one step further to amplify the least restrictive environment concept, requiring that “special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” Federal district courts examining school efforts to comply with IDEA's least restrictive environment mandate follow different tests, depending on the federal circuit in which the court lies. But if your disabled student faces discipline that removes your student from the least restrictive environment into which the school had placed your student, that discipline could violate IDEA's least restrictive environment mandate.
Individualized Education Programs
IDEA's free appropriate public education and least restrictive environment mandates are broad foundational requirements. To be effective, though, IDEA's framework also needs a practical implementation construct. Individualized education programs, also known as individualized education plans or IEPs, are the practical key to IDEA's powerful framework. Ask any primary or secondary school teacher or official whether a certain student has an IEP, and they will instantly know what you mean. IDEA's Section 300.320 defines an individualized education program as “a written statement for each child with a disability that is developed, reviewed, and revised in a meeting,” satisfying IDEA's other requirements. IDEA, though, requires abundant practical detail within each student's IEP. Under Section 300.320, an IEP must include each of the following:
- A statement of the child's present levels of academic achievement and functional performance, including how the child's disability affects the child's involvement and progress in the general education curriculum;
- A statement of measurable annual goals, including academic and functional goals designed to meet the child's needs that result from the child's disability to enable the child to be involved in and make progress in the general education curriculum;
- A description of how the school will measure the child's progress toward meeting the annual goals, including when the school will provide periodic reports on the progress the child is making toward meeting the annual goals;
- A statement of the special education, related services, and supplementary aids the school will provide to the child, based on peer-reviewed research;
- A statement of the program modifications or supports for school personnel that the school will provide to enable the child to advance appropriately toward attaining the annual goals, make progress in the general education curriculum, participate in extracurricular and other nonacademic activities, and participate with other children with disabilities and non-disabled children;
- An explanation of the extent, if any, to which the child will not participate with non-disabled children in the regular classroom;
- A statement of any individual appropriate accommodations necessary to measure the academic achievement and functional performance of the child on mandated assessments; and
- The projected date for the beginning of the services and modifications and the anticipated frequency, location, and duration of those services and modifications.
A Parent's Role in Enforcing IDEA Rights
Parents of disabled students should know IDEA's framework to ensure that their disabled student receives the placement and special education services that IDEA guarantees. School officials have IDEA's statutory obligation to identify and accommodate students with disabilities. But school officials don't know your student as well as you do. And school officials have obligations to all students, while your parental interests are in your student alone. You can be a critical advocate for your student's IDEA rights before a dispute arises. Once a dispute arises, especially one involving the school's disciplinary charge of your disabled student, you should retain skilled and experienced school defense attorney representation. As a parent, you play a critical role in your student's day-to-day school success. When disputes arise, your role should become one of retaining the attorney advocate your student needs and deserves. National school defense attorney Joseph D. Lento has the premier skills and substantial experience your disabled student needs for a successful outcome of disciplinary charges.
Student Disabilities and School Discipline
Student disabilities can cause or contribute to academic deficiencies and non-conforming behaviors that schools may mistakenly view and treat as misconduct warranting discipline. Disabled students, unfortunately, sometimes get suspended or expelled from school for manifestations of their accommodated disabilities. Indeed, school officials sometimes even suspend or expel disabled students due to behaviors that resulted from the school's own failure to provide promised placements and support services. IDEA's specific provisions relating to manifestation determination reviews before school discipline make crystal clear that Congress, when adopting and amending IDEA, recognized that student disabilities can lead to inappropriate school discipline. The Department of Education has agreed in its comments on its implementation of IDEA regulations, saying, “We believe the Act recognizes that a child with a disability may display disruptive behaviors characteristic of the child's disability and the child should not be punished for behaviors that are a result of the child's disability.” 71 Fed. Reg. 46720.
Contesting School Disciplinary Charges
The first thing you should do to help your student facing school disciplinary charges is to contest those charges. If your student's disability had some relationship to the academic deficiency or behavioral misconduct with which the school charges your student, IDEA's discipline provisions should help you and your retained school defense attorney defend and defeat those charges. But whether your student's disciplinary charges had something to do with your student's disability or not, contesting the charges is an obvious and often wise and necessary strategy. School disciplinary officials make mistakes in charging student misconduct. School disciplinary officials may not be aware of evidence that would exonerate your student, proving your student innocent of the charges. School disciplinary officials also bear the burden of proving misconduct. If they lack credible evidence that your student did the wrong they allege, school officials should dismiss, not pursue, those charges. Your student may also have engaged in misconduct under circumstances that mitigate the severity of your student's wrong and warrant a reduction or elimination of any sanction. The appropriate school response to misconduct is also a huge issue in disciplinary proceedings. Just because misconduct occurred doesn't mean that specific punishments like suspension or expulsion are warranted. Retain national school defense attorney Joseph D. Lento to defend and defeat your student's disciplinary charges, whether you believe those charges to relate to your student's disability or not. Give your student every chance for the best possible outcome to disciplinary proceedings.
Manifestation Determination Reviews
Federal disability law, though, gives your student a powerful tool for defending and defeating disciplinary charges, when your student has a qualifying disability for which your student is already under an individualized education program with an identified placement and support services. Disabled students get special protection to ensure that schools don't hold them responsible in disciplinary proceedings for behaviors that are the result of their disabilities rather than unrelated, rank misconduct. IDEA's Section 300.530(e) requires manifestation determination review in elementary and secondary school discipline cases involving a disabled student. IDEA did not originally require manifestation determination reviews, when Congress first adopted IDEA in 1990. IDEA amendments in 1997 first added the requirement for manifestation determination reviews. In 2004, Congress amended IDEA again to simplify the manifestation determination review process. Congress's 2004 amendments also limited the discipline for which school officials must first conduct a manifestation determination review. Manifestation determination review is a sound and secure law that your student's high school official should be following.
Manifestation Determination Review Procedures
Manifestation determination reviews must take place within ten days of your student's removal due to disciplinary charges. Under IDEA's Section 300.530(e), you have the right, and your school's disability officials have an obligation to attend your student's manifestation determination review. You will get to provide all relevant information at the review. IDEA's Section 300.530(e) requires a review of “all relevant information in the student's file, including the child's IEP, any teacher observations, and any relevant information provided by the parents….” IDEA's Section 300.530(e) then provides that you, the local educational agency (LEA) representative, and the IEP team decide if (1) your student's alleged misconduct had a direct and substantial relationship to your student's disability or (2) if the conduct in question was the direct result of the school's failure to implement your student's IEP.
Manifestation of Disability
If the manifestation determination review finds that the alleged misconduct simply manifested your student's disability, under IDEA's Section 300.530(f), the school must “conduct a functional behavioral assessment … and implement a behavioral intervention plan for the child; or [i]f a behavioral intervention plan already has been developed, review the behavioral intervention plan, and modify it, as necessary, to address the behavior….” These actions should result in the dismissal of the charges. IDEA's Section 300.530(f) also requires the school to “return the child to the placement from which the child was removed, unless the parent and the LEA agree to a change of placement as part of the modification of the behavioral intervention plan.” Your student should be able to get right back into your child's placement with the disciplinary charges behind your student. If instead, the manifestation determination review finds that the school's failure to implement your student's IEP caused the misconduct, then the school must immediately remedy the deficiency. The Department of Education holds that the school “has an affirmative obligation to take immediate steps to ensure that all services set forth in the child's IEP are provided, consistent with the child's needs as identified in the IEP.” 71 Fed. Reg. 46721. The school should also dismiss the disciplinary charges.
IDEA Rights After School Discipline
IDEA doesn't just ensure through manifestation determination review and related procedures that school officials don't discipline a student unjustly for disability behaviors. IDEA also ensures that justly removed, suspended, or expelled students continue to receive appropriate disability services. IDEA further ensures that justly removed or suspended students receive disability services to forestall further violations. In other words, just because your student has suffered appropriate school discipline doesn't mean that your student's IDEA rights and interests end. Indeed, aggressive and effective advocacy for your student may be doubly appropriate to ensure that your student continues to progress while out of school and develops the compensatory skills to return to school ready to complete the education. Retain national school defense attorney Joseph D. Lento if you believe that your student's school has removed, suspended, or expelled your student without continuing to provide disability services after the disciplinary action. The disability-rights battle isn't over until your student graduates, no matter the discipline the school may justly or unjustly impose.
Services for Removed, Suspended, and Expelled Students
Disabled students already suspended or expelled from school should continue to receive disability services while out of school. Your student may especially need and benefit from those services, after suffering the distress and disruption of school removal. IDEA's Section 300.101 states, “A free appropriate public education must be available to all children residing in the state between the ages of 3 and 21, inclusive, including children with disabilities who have been suspended or expelled from school, as provided for in §300.530(d).” (Emphasis added.) IDEA's Section 300.530(d) reiterates and expands that a “child with a disability who is removed from the child's current placement … must … continue to receive educational services … so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child's IEP….” Section 300.530(d) further refers to an “interim alternative educational setting.” Even if the school has removed your student from the placement, the school should continue to support your student's progress through the curriculum while your student is out of school.
Functional Behavioral Assessments
IDEA does more than ensure that the removed student continues to receive disability services. IDEA also mandates that the school take steps to help the disabled student return to the student's school placement. Under the same Section 300.530(d) as cited and quoted just above, the school must provide the removed student with “a functional behavioral assessment, and behavioral intervention services and modifications, that are designed to address the behavior violation so that it does not recur.” Functional behavioral assessments should identify how the disability caused or contributed to the alleged misconduct or how special education services addressing the disability may reduce or eliminate the conduct in the future. Once the assessment determines what disability services can do for the student, the school may then have an obligation to provide those services even while the student remains removed. Don't give up advocating for your disabled student even after removal. Retain national school defense attorney Joseph D. Lento to help you evaluate actions you and your student can take to obtain the disability services necessary to help your student return to the placement and school.
National School Defense Attorney Available
School discipline can destroy a disabled student's confidence, ambitions, and academic progress. School discipline can also damage a student's reputation, relationships, and educational and vocational future. Don't let your student's disciplinary officials ignore your student's disability. Don't let unfair and unlawful discipline interfere with your student's disability rights, placement, and special services. Retain national student defense attorney Joseph D. Lento and the Lento Law Firm for your disabled student's aggressive and effective defense to disciplinary proceedings. Call 888-535-3686 for a consultation now or use the online service.