When a K-12 or college student in Delaware faces disciplinary action from the school over alleged misconduct, it can be a deeply challenging experience for both students and their parents. The situation is even more stressful when the student is living with a disability. The emotional strain is significant as families work to ensure their children receive a fair and just education. Despite the protections provided by laws such as the Americans with Disabilities Act (ADA), the Individuals with Disabilities Education Act (IDEA), and Section 504 of the Rehabilitation Act of 1973, schools face a difficult balancing act between accommodating disabilities and maintaining an orderly education environment for the other students. Unfortunately, the rights of disabled students can be violated in the process.
Parents and students often face difficult situations where a disability may not be fully understood or properly accommodated by schools. This can lead to unfair disciplinary actions that threaten the student's academic progress, emotional health, and future opportunities. It is crucial to pay careful attention to legal requirements and to show empathy for the unique challenges faced by disabled students.
If your disabled child is facing disciplinary action from their school, the best way to ensure their rights are protected, and due process is followed is with the help of an experienced education law attorney. The Lento Law Firm's Student Defense Team has extensive nationwide experience protecting the educational rights of disabled students. We have a thorough understanding of student codes of conduct and the laws protecting your child, and we have an excellent track record helping students and parents navigate even the most complex cases. Call the Lento Law Firm at 888-535-3686 to arrange a consultation or fill out our confidential online form.
Disabled Students Face Increased Vulnerability to Disciplinary Actions
Despite the best efforts by many schools to provide adequate accommodations and implement fair disciplinary practices, students with disabilities often face a heightened risk of disciplinary actions. This increased vulnerability may stem from misunderstandings, communication issues, or symptoms related to their disabilities rather than intentional misconduct. Several factors can contribute to unjust disciplinary measures against disabled students, whether they are in K-12 or higher education. These include:
- Inadequate Accommodations: When schools fail to provide the necessary lawful accommodations for a disabled student before or during the disciplinary process, the student is placed at a significant disadvantage.
- Limited Understanding/Training among School Personnel: Teachers, staff, and school officials might lack a clear understanding of a student's disability and its implications, leading to misinterpretations of behavior linked to that disability. Often, they are not adequately trained to identify and comprehend how the disability affects the student's actions.
- Communication Barriers: Students whose disabilities impact their communication abilities may struggle to effectively present their case without proper support.
- Confusion over Policies: The intersection of disability rights under laws such as the ADA, Delaware state regulations, and the school's misconduct policies can create confusion, which may result in the neglect of disabled students' rights.
School Violations Involving Disabled Students in Delaware
In Delaware, disabled students are subject to the same standards of conduct as their peers, and rightly so. However, when a disabled student is accused of misconduct, the key differences arise in whether the student comprehends the rules and/or if their disability significantly contributed to the infraction. Here are three common types of school misconduct involving student disabilities:
Academic Misconduct
Both K-12 schools and colleges have policies designed to maintain academic integrity and ensure genuine, fair learning experiences. Balancing these policies with the need to provide appropriate accommodations can be challenging. Striking a balance between lawful accommodations and maintaining academic fairness often leads to misunderstandings about what constitutes academic misconduct for a disabled child. For example, a student with specific disabilities may require additional study resources, such as extended time for examinations or access to lecture notes, which for a non-disabled student might be considered cheating. This difference in educational needs can sometimes lead to unfair allegations of academic misconduct if educators aren't fully versed in the disabled child's unique needs.
Title IX Violations
Schools that receive federal funding must comply with Title IX regulations, which protect students from sex-based discrimination, including sexual harassment and assault. Disabled students are not only more susceptible to victimization under Title IX. Still, they can also sometimes be accused of violating Title IX policies if their disability affects their social interactions or communication. This can lead to misunderstandings and potential disciplinary actions. Errors in this area can occur for various reasons, including:
- The student's disability may cause difficulties in interpreting social cues in intimate situations, such as understanding when consent has or has not been given.
- The other party may not fully understand the disabled student's physical or mental condition, leading to misinterpretation of their actions.
- Societal and institutional biases might cause authorities to default to believing the accuser or be biased against the disabled student who is accused.
Student Conduct Violations
The Student Code of Conduct at any school aims to create a safe and respectful educational environment. However, students with disabilities may struggle to comprehend and follow these regulations due to their respective conditions. While disabled students are held to the same standards as their non-disabled counterparts, schools must also provide reasonable accommodations to ensure fair treatment. This includes providing adequate notice and detailed information about the charges, access to relevant evidence, and an opportunity for a fair hearing.
In some cases, a student's disability itself may be a factor in the alleged misconduct. Schools must assess whether disciplinary measures are appropriate and effective in such situations. Additionally, accommodations should be provided during the disciplinary process to ensure fairness.
Delaware's Approach to Discipline for Disabled Students
In Delaware, colleges and universities are mandated to offer fair and reasonable accommodations in compliance with the ADA. This requirement extends to providing accommodations when a disabled student is accused of violating institutional rules. For K-12 students, Delaware's Department of Education has established a clear set of policies regarding the state's accommodations for disabled students, including disciplinary procedures. These rules align with federal mandates under IDEA and Section 504, establishing clear policies for handling the discipline of disabled students.
Discipline for Students on an IEP
For routine infractions involving students with disabilities, Delaware law allows teachers and staff to use their own discretion in imposing disciplinary actions upon disabled students for routine infractions, much in the same manner as they would for non-disabled students. This includes suspending the student or removing them to an interim alternative educational setting (IAES) for up to 10 consecutive days. However, for K-12 students who are on an Individualized Education Plan (IEP), exceptions arise once the student is suspended for longer than ten cumulative days in a school year (whether in a single suspension or multiple short-term suspensions); this may constitute a change in placement. In such cases, several procedures must be followed:
- The school must formally notify the parents.
- The school must provide special education services to the student, such as placing the student in an interim alternative educational setting (IAES).
- The school must conduct a manifestation determination to assess whether the child's misconduct was a manifestation of the disability and whether the student is eligible for a functional behavioral assessment (FBA) and a behavioral intervention plan (BIP).
Manifestation Determination
The manifestation determination meeting involves the child's parents and relevant members of the IEP team. The purpose of this review is to ascertain whether the student's misconduct was due to the school's failure to effectively implement the IEP or if the misconduct was directly related to the student's disability. The manifestation determination must occur within ten days of the child's removal from the classroom or other educational environment.
If the manifestation determination concludes that the misconduct resulted from the school's failure to follow the IEP, the school has an obligation to address and rectify these deficiencies. If the behavior was a manifestation of the student's disability, the IEP team must conduct a full functional behavioral assessment (FBA) and develop or adjust a behavior intervention plan (BIP) for the student. In either case, the law requires the student to be returned to their original school setting unless the parents and school authorities both agree to a change of venue for the student.
If the manifestation determination concludes that the behavior was not related to the student's disability, the school can apply the same disciplinary measures as it would for a non-disabled student, including placement in an IAES, suspension, or even expulsion.
Extreme Circumstances
Delaware law allows for school authorities to remove a disabled student to an IAES for up to 45 days under extraordinary circumstances, regardless of whether the child's disability triggered the behavior. These circumstances include the following:
- If the student brings, possesses, or uses a weapon on school property or at a school function;
- If the student has or uses illegal drugs or
- If the student causes serious bodily injury to another person.
Behavior Intervention Plans and Functional Behavioral Assessments
If it is determined that a student's misconduct is linked to their disability, schools can't simply suspend or dismiss the student but instead must implement specific modifications to address these behaviors. This process begins with conducting a functional behavioral assessment (FBA), which systematically identifies the root causes of a student's disruptive behavior. The goal is to collect detailed information about the student's actions, identify triggers and outcomes, and hypothesize the purpose behind the behavior.
Following the FBA, the IEP team is tasked with developing or updating a behavioral intervention plan (BIP). This plan details proactive strategies, supports, and interventions tailored to address specific behavioral concerns. It aims to reduce, replace, or manage these behaviors by incorporating positive behavioral supports, environmental adjustments, and instructional techniques to enable the student to remain in the learning environment.
Reasonable Accommodations During School Disciplinary Proceedings
Whether in K-12 or college settings, schools are required by law to provide reasonable accommodations for students with disabilities who face disciplinary actions, mirroring the accommodations provided during the course of their education. However, students and/or parents must actively request these accommodations to safeguard the child's rights. Examples of accommodations that a school may provide include:
- Student access to a counselor, personal aide, or trusted individual during all disciplinary proceedings
- Choosing a venue for disciplinary meetings that minimizes the student's stress
- Allowing for temporary adjournments if the student becomes overwhelmed
- Permission for brief breaks to help the student mentally prepare for continuation
- The option to submit written statements as part of the evidence
- Direct consultation with the student regarding their accommodation needs
Due Process Hearings
In cases where there is a disagreement between parents and an educational institution concerning the discipline of a disabled student, the Delaware Department of Education has policies in place regarding dispute resolution, including providing avenues for due process hearings. These hearings enable both parties to present their evidence and arguments before an impartial hearing officer, who will then make a decision based on the information presented.
Protecting Your Disabled Child's Rights in Delaware
Given the complexities involved in student disciplinary procedures for disabled students, it is understandable for both students and their parents to feel overwhelmed and anxious. Despite the existence of protective laws and procedures, the possibility remains that a student's rights may be violated during the disciplinary process, whether inadvertently or through sheer negligence. Without the assistance of a skilled education attorney, the risk of such violations increases significantly, along with the likelihood that unfair disciplinary actions could disrupt the child's educational progress.
The Student Defense Team at the Lento Law Firm has helped many disabled students and their parents through even the most complex school disciplinary matters. We will assess your child's situation, review the evidence, evaluate the school's policies and legal compliance, and work toward a fair resolution that upholds your child's rights. In the vast majority of cases, these issues can be resolved through skillful negotiation, but in cases where a child's rights have been blatantly violated, litigation may also be an option to rectify the situation. To schedule a consultation, contact the Lento Law Firm at 888-535-3686 or complete our online form.
