Disciplinary Charges and Disabilities
Students with disabilities face greater challenges in education at all levels. Section 504 of the Rehabilitation Act of 1973 and other disability laws like Title II of the Americans with Disabilities Act and the Individuals with Disabilities Education Act have opened access to education for many students with disabilities. But schools don't always meet their legal obligations by providing the disabled student with mandated accommodations. And even with reasonable school accommodations for disabilities, the student's challenge to overcome the disabilities remains. Students with disabilities can, even with accommodations and great effort, fall behind in their studies relative to non-disabled students. Students with disabilities can also see those disabilities periodically manifest in behaviors that the school misconstrues as deliberate or reckless misconduct. And once a disabled student faces an undue disciplinary proceeding relating to the student's disability, schools can fail to accommodate the student's disability within the disciplinary proceeding, leading to punishments the disabled student doesn't deserve. Schools at times suspend and dismiss disabled students because of their disability when disability laws prohibit doing so. If you or your student face school discipline relating to a disability, retain national school defense attorney Joseph D. Lento to defend and defeat those charges. Don't let a disability that your school should accommodate instead lead to school discipline.
Section 504's Core Protection
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, is one of the most powerful laws protecting students from disability discrimination. Section 504 provides, “No otherwise qualified individual with a disability in the United States shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance....” Section 504 itself says nothing more about how schools are to carry out their obligations. But Section 504's core protection that schools at all levels must not exclude students who have a qualifying disability from any program or activity is a broad and powerful tool for students with disabilities to get accommodations from their school. And that tool applies just as much in disciplinary settings as in other school programs and activities.
Section 504's Reach
Section 504 applies to any school, public or private, that receives federal funding. 29 U.S.C. § 794(b)(2) expressly extends the reach of Section 504 protections to include educational activities at “a college, university, or other post-secondary institution, or a public system of higher education,” “a local educational agency…, system of vocational education, or other school system,” and a private “corporation, partnership, or other private organization” receiving federal financial assistance for educational services. Private schools, from elementary through higher education, could avoid Section 504 obligations by refusing federal financial assistance. Most private schools accept federal funding, meaning that Section 504 protects students in those private schools just as much as Section 504 protects students in public schools. Section 504 has a broad reach. Indeed, Section 504 also mandates employment protections, not just school protections. Expect Section 504 protections to apply in your school or your student's school, unless the school is one of the few private schools that refuse federal funding.
Section 504's Implementing Regulations
Section 504 itself doesn't detail how schools must carry out its mandate not to exclude students with qualifying disabilities from any program or activity. Instead, in enacting Section 504, Congress relied on federal agencies to promulgate detailed regulations describing what schools must do and must not do to comply with Section 504's broad protections. The Department of Education, through its Office of Civil Rights, has promulgated detailed Section 504 regulations at 34 CFR 104.1 et seq. The regulations include general provisions, specific provisions for elementary and secondary schools, and separate provisions for post-secondary (college and university) education. The regulations also incorporate procedural protections adopted under other federal laws. Some of the key regulatory provisions available to protect and assist disabled students facing disciplinary charges include:
- Disability definitions for determining which students Section 504 protects under qualifying disabilities;
- Discriminatory actions that Section 504 prohibits, including actions the school must take for qualified students;
Who Section 504 Protects
Qualifying Persons
Section 504's implementing regulations adopt broad definitions for determining which students have qualifying disabilities. 34 CFR 104.3(j) defines a handicapped person (a person with a disability) as “any person who (i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment.” Thus, both physical and mental impairments can qualify a student for protection. And for protection, the student need not currently manifest the disability's impairment if an impairment record exists or school officials regard the student as impaired.
Qualifying Impairments
To be a qualifying student with a disability, or handicapped person, as the regulation expresses it, the student must have a qualifying impairment. 34 CFR 104.3(j) further defines a qualifying physical or mental impairment as: “any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genito‑urinary; hemic and lymphatic; skin; and endocrine; or … any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.” Section 504 thus protects students with the broadest range of disabilities. Virtually any impaired body system that affects a major life activity can qualify as a protected disability.
Qualifying Major Life Activities
Students qualify for Section 504 protection when one of the above impairments affects a major life activity. 34 CFR 104.3(j) defines major life activities to include “functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” Thus, Section 504 impairments affecting virtually any activity related to learning can qualify as protected disabilities. Yet 34 CFR 104.3(j) goes on to provide that the impairment need not affect a major life activity, and the student can still get Section 504 protection, if the student “has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.” Indeed, 34 CFR 104.3(j) goes further to provide Section 504 protection when school officials regard the student as impaired, meaning that the student is not impaired, but school officials treat the student as if the student is impaired. Expect Section 504 to protect you or your disabled student for virtually any impairment in any way affecting schooling or when school officials treat the student as impaired. Retain national school defense attorney Joseph D. Lento for any dispute with the school over qualifying disabilities.
Prohibited Discrimination
Section 504's implementing regulations detail what schools must do and must not do to comply with Section 504 mandates. In a broad view, Section 504 prohibits schools from excluding the disabled student from any program or activity. But the detailed regulations summarized below show that Section 504 requires much more than just permitting disabled students to participate. Section 504 can require schools to take substantial affirmative action to support the disabled student's learning. If, for instance, you or your disabled student face a disciplinary charge relating to a disability, the school may have to dismiss the charge, accommodate the disability, and provide accommodations during the disciplinary proceeding itself. Section 504's implementing regulation 34 CFR 104.4 prohibits schools from taking any of these actions:
- Denying a qualified disabled student the opportunity to participate in or benefit from an aid, benefit, or service non-disabled students enjoy;
- Affording a qualified disabled student an opportunity to participate in or benefit from an aid, benefit, or service that is not equal to that afforded to non-disabled students;
- Providing a qualified disabled student an aid, benefit, or service that is not as effective as that provided to non-disabled students;
- Providing different or separate aids, benefits, or services to disabled students unless necessary to provide those students with aids, benefits, or services that are as effective as those provided to non-disabled students;
- Aiding or perpetuating discrimination against a qualified disabled student by providing significant assistance to an agency, organization, or person discriminating against disabilities when providing school aids, benefits, or services;
- Denying a qualified disabled student the opportunity to participate as a member of planning or advisory boards; and
- Otherwise limiting a qualified disabled student in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by non-disabled students receiving an aid, benefit, or service.
Section 504 in Elementary and Secondary Schools
Section 504's implementing regulations provide specific requirements for elementary and post-secondary schools that detail and extend Section 504's core access requirement. In effect, Section 504 regulations require elementary and post-secondary schools to meet legal obligations to disabled students already required by the Individuals with Disabilities Education Act (IDEA). In other words, Section 504 tracks IDEA for elementary and secondary school programs. Thus, under 34 CFR 104.33, elementary and post-secondary schools must provide a free appropriate public education to students with qualifying disabilities. Those schools must also develop, maintain, and implement an individualized education program or IEP, also called a 504 plan, for each disabled student. IEPs may require the school to provide not only placements but also special education services, assistive equipment, transportation, and other aids, services, and benefits. If your disabled student faces disciplinary charges relating to the disability, Section 504's implementing regulations give you and your retained school defense attorney powerful tools to defend and defeat those charges. Retain national school defense attorney Joseph D. Lento to help you defend and defeat those charges using Section 504 protections.
Manifestation Determination Review
Section 504 also offers a powerful tool specifically for disabled elementary and secondary schools facing disciplinary charges. Both the Individuals with Disabilities Education Act and Section 504 of the Rehabilitation Act of 1973 requires schools pursuing disciplinary charges against a disabled student to conduct a manifestation determination review. This powerful construct recognizes that disabilities can naturally manifest themselves in academic deficiencies and anomalous behaviors. The manifestation in academic troubles and misbehaviors of disabilities can be especially prevalent when the school is failing to properly accommodate those disabilities with mandated placements and special services. Section 504 requires school officials to conduct a manifestation determination review involving the parent and the IEP team within ten days of the student's disciplinary charge, whenever the school proposes to remove the disabled student from the student's disability placement or suspend the student for at least ten consecutive school days. If the manifestation review determines that the alleged deficiency or misconduct was due to the disability or the school's failure to accommodate it, the school must take appropriate remedial action, which may include dismissing the disciplinary charge in favor of disability accommodations and services. Retain national school defense attorney Joseph D. Lento to help you and your student demand and navigate a manifestation determination review for relief from disciplinary charges.
Section 504 in Post-Secondary Education
Section 504's implementing regulations separately address the obligations of colleges, universities, and their graduate and professional programs to accommodate students with qualifying disabilities. The regulatory framework for college and university students differs from the elementary and secondary school framework. Post-secondary programs do not need to implement individualized education programs for each student. Instead, the regulations focus on requiring the school to make reasonable accommodations to account for the student's disability so that the student can participate equally.
Academic Adjustments
Section 504's implementing regulations specifically require colleges and universities to adjust their academic requirements to accommodate student disabilities. 34 CFR 104.44 requires the college or university to “make such modifications to its academic requirements as are necessary to ensure that such requirements do not discriminate or have the effect of discriminating, on the basis of handicap, against a qualified handicapped applicant or student.” The college or university need not modify any requirement essential to the instruction or any directly related licensing requirement. But the regulation specifically mentions that necessary modifications “may include changes in the length of time permitted for the completion of degree requirements, substitution of specific courses required for the completion of degree requirements, and adaptation of the manner in which specific courses are conducted.”
Academic Auxiliary Aids
Section 504's implementing regulations also require colleges and universities to offer academic auxiliary aids to help the disabled student navigate the program equally. 34 CFR 104.44 includes among auxiliary aids such things as “taped texts, interpreters or other effective methods of making orally delivered materials available to students with hearing impairments, readers in libraries for students with visual impairments, classroom equipment adapted for use by students with manual impairments, and other similar services and actions.” The regulation does not require the school to provide attendants, individually prescribed devices, readers for personal use or study, or other devices or services of a personal nature. But the mandated aids can go a long way to providing the disabled student with access. And the mandated aids can also help the student through a disciplinary proceeding. Colleges and universities must accommodate the disabled student with such aids not only in classrooms but also in disciplinary proceedings.
Section 504 Procedural Protections
Section 504's implementing regulations also provide procedural protections that can help a disabled student facing disciplinary charges manage, defend, and defeat those charges. 34 CFR 104.7 requires the school to designate an official to accept grievances over Section 504 rights and to adopt procedures to determine whether the school is violating Section 504 and needs to provide the disabled student with relief. Under the regulation, those school procedures must “incorporate appropriate due process standards … that provide for the prompt and equitable resolution of complaints alleging any action prohibited” under Section 504 regulations. This one regulatory mandate can be your key to obtaining relief against disciplinary charges relating to a disability. Due process protections give your retained school discipline defense attorney the opportunity to challenge, defend, and defeat disciplinary charges by showing that they resulted from the school's failure to accommodate a disability or were a manifestation of a disability. Key procedural protections can include:
- School notice of the disciplinary charges with enough detail for you and your retained school defense attorney to understand, evaluate, investigate, and respond to the charges, including discerning how the charges relate to the disability;
- School investigation of the charges in an unbiased manner by a school official without undue conflicts of interest, giving you and your retained school defense attorney the opportunity to supply explanatory, exonerating, and mitigating evidence for the investigation report;
- Informal resolution opportunities in which you and your retained school defense attorney can communicate and negotiate with school disciplinary and disability officials for dismissal of the charges and for disability accommodations;
- Formal hearing of any contested charges for which the school has supporting evidence, giving you and your retained school defense attorney the opportunity to challenge the school's evidence while presenting documents and witnesses in defense of the charges and to prove the disability's relationship to the charges; and
- Written decision of the charges giving you and your retained school defense attorney the opportunity to evaluate, challenge, and appeal any adverse findings and sanctions to an appeal panel or official.
Retaliation Protections
Section 504's implementing regulations incorporate one other procedural protection that can help when challenging school disciplinary charges relating to a disability. Advocating for disability rights, placements, aids, benefits, and services can rankle reluctant school officials. School officials don't always respond well to the efforts of students or their parents to require the school to modify academic methods or provide expensive disability services. By incorporating Title VI procedural protections, Section 504's implementing regulation 34 CFR 104.61 prohibits retaliation against any individual, including the disabled student and student peers, instructors, officials, or others who advocate for the disabled student, from retaliating for that advocacy. If you or your student perceive that the school has in any way diminished the rights or adversely affected the interests of you, your disabled student, or others advocating for your student, retain national school defense attorney Joseph D. Lento to address and end that retaliation.
What's at Stake for the Disabled Student Facing Discipline
Don't underestimate what you or your student have at stake when facing discipline relating to a disability. Any interruption in a school program, whether temporary removal, suspension, or dismissal, at any level, can cause long-lasting effects. Disabled students removed, suspended, or dismissed from educational programs can especially suffer mental and emotional distress, depression, and other negative effects of the embarrassment, guilt, and isolation that removals can cause. And the harm of unjust discipline can be much greater than simply the school interruption. A record of discipline can prevent a student from progressing through the current program, graduating, and qualifying for other programs. Discipline can also affect professional licensure, vocational certification, and job and career opportunities. Devote the time, effort, and resources necessary to aggressively, effectively, and successfully defend disciplinary charges relating to student disabilities. Put Section 504 to work for you or your student. The legal protections and tools are there. You just need to be sure of their strategic deployment.
Premier School Defense Attorney Available
You can do no better than to retain national student defense attorney Joseph D. Lento and the Lento Law Firm's student defense team for aggressive and effective defense of disabled students facing disciplinary proceedings. Attorney Lento has helped hundreds of students nationwide, including students with disabilities, defend and defeat disciplinary charges in schools at all levels and programs of all types. Trust attorney Lento to advocate passionately and effectively for you or your disabled student. Attorney Lento has the comprehensive knowledge, refined academic administrative skills, and substantial experience for a winning defense against disciplinary charges. Call 888-535-3686 for a consultation now, or use the online service.
