Having a disability makes a student more likely to face discipline. Depending on the school and the severity of the alleged misconduct, schools may not have to consider the role a disability can play in a student’s behavior.
The problem isn’t that students with disabilities aren’t being disciplined for misconduct. The problem is that simply having a disability makes a student more likely to be subjected to discipline.
The overuse of discipline against students with disabilities is serious enough that it can deny K-12 students their right to a free appropriate public education. To lessen the discriminatory use of discipline, the U.S. Department of Education released guidelines.
College and graduate students with disabilities face a different set of challenges. They’re expected to self-advocate for their disability, and colleges and universities have fewer obligations to students with disabilities. If and when a student with disabilities is accused of misconduct, that lack of support can make defending themselves against allegations all the more difficult.
Students with disabilities have the right to an education free from discrimination. The current use of discipline, however, disadvantages students with disabilities.
If you or your student has a disability and are facing disciplinary action, the Education Law Team at the LLF National Law Firm can help. Whether you live in Eureka or Aberdeen, attend school in South Dakota or elsewhere in the country, we can assist you in navigating the process and defending your right to an education. Call us at 888-535-3686 or fill out an online form.
K-12 Schools in South Dakota
During the K-12 years, schools sometimes have to consider the role a disability plays in a student’s misconduct. Parents and guardians are also more involved in meetings and the overall process.
Schools must provide special education services to students with disabilities. This includes identifying and assessing children and teenagers who may have disabilities. Once schools establish that a student does have a disability, students are eligible for services under the Individuals with Disabilities Education Act (IDEA) or Section 504 of the Rehabilitation Act of 1973.
IDEA uses a narrower definition of disability. Students who have a qualifying disability receive an Individualized Education Plan (IEP). Families and school staff meet to decide what’s included in a student’s IEP. This can include how a school responds to student misconduct or behavioral issues. Once agreed upon, these written documents are legally binding.
If students don’t qualify under IDEA, they may qualify for a 504 Plan under Section 504. While 504 Plans don’t have to be written, parents should request a written copy be made. 504 Plans cover both classroom and extracurricular activities.
For disciplinary purposes, schools should treat students with disabilities the same, regardless of whether they have an IEP or 504 Plan. While some of the language for manifestation determination comes from IDEA, the U.S. Department of Education has stated that these same rules should apply to students with 504 Plans.
Manifestation Determination
When a student has been suspended or removed from their normal education placement for ten days during the current school year, schools must conduct a manifestation determination meeting. These ten days can be either from one incident or cumulative for the year.
The purpose of a manifestation determination meeting is to see what role, if any, a student’s disability played in their misconduct. During these meetings, schools and parents will consider two questions:
- Did a student’s disability cause the student’s behavior or have a direct and substantial relationship to their behavior?
- Was there a direct relationship between a student’s behavior and a school’s failure to implement that student’s IEP or 504 Plan?
If a student’s behavior is found to not be a manifestation of their disability, schools can punish the student based on district policies.
Any punishment must be similar to what other students would receive for a similar incident. Rapid City Area Schools, for example, publishes discipline matices that list the expected action for a violation.
If a student’s actions were due to a school’s failure to implement their IEP or 504 Plan, the school must immediately work to remedy the problem. Schools should also schedule a student for a Functional Behavioral Assessment (FBA).
PBIS and MTSS
An increasing number of schools in South Dakota use Positive Behavior Intervention and Support (PBIS) and Multi-Tiered Systems of Support (MTSS). These programs are generally schoolwide and use evidence-based practice. The purpose is to be proactive and preventative in improving student conduct and improving behavior. In another way, schools implement PBIS and MTSS to focus on prevention rather than punishment.
When a student faces allegations of misconduct, one question parents or guardians may want to ask is whether the school is using PBIS or MTSS. In some situations, a school’s failure to adopt these programs may relate to a student’s behavior.
FBA and BIP
While the legal groundwork for functional behavioral assessments (FBA) and behavioral intervention plans (BIP) is IDEA, FBA and BIP are often considered part of PBIS and MTSS. Similar to PBIS and MTSS, FBAs and BIPs focus on understanding and improving student behavior.
If a student’s misconduct relates to their disability, students should undergo an FBA. The purpose of an FBA is to assemble a wide variety of information and data to form a theory about a student’s behavior.
Once schools have an FBA, they will use the information gathered to create a BIP. A BIP focuses on services and supports intended to help a student improve their behavior and prevent future incidents of misconduct. It’s similar to an IEP, only the goal is to improve behavior rather than academic performance.
When crafting a BIP, parents should ask to review the student’s IEP or 504 Plan. All of these documents should work towards a common goal, and the addition of a BIP may require revisions to an IEP or 504 Plan.
If a student already has an FBA or BIP, families should ask to meet with a school to request either revisions or drafting of a BIP. If a student already has a BIP, a second question to ask is whether the school has implemented a student’s BIP.
Special Circumstances
Schools don’t have to consider a student’s disability in certain serious incidents of misconduct, schools. These special circumstances are:
- A student carries a weapon to school or possesses a weapon at school, on school grounds, or at school activities
- A student knowingly possesses, uses, solicits, or sells controlled substances or illegal drugs while at school, on school grounds, or at school events
- A student causes serious bodily injury to another person while at school, on school grounds, or at school activities
If a student commits one of the above, schools may place a student in an interim alternative educational (IAES) setting for up to 45 days.
Schools must continue to provide special education services while a student is in an IAES. Services and accommodations provided during this time don’t have to be identical to what a student normally receives. They simply need to be effective and allow a student to progress toward their IEP or 504 Plan goals.
Seclusion and Restraint
In South Dakota, school districts set their policies for seclusion and restraint. The state requires that these policies include:
- Notification procedures to inform a parent or guardian about the use of seclusion or restraint
- A ban on prone restraint, except when necessary and reasonable in manner and moderate in severity
- A ban on seclusion, or involuntary confining a student alone in a locked room, except in situations with a clear and present danger
Given that school districts otherwise set their policies, families should consult their school district’s handbook to learn about their school’s policies on seclusion and restraint.
Nationwide, the use of seclusion and restraint in schools has come under scrutiny. Students with disabilities are especially likely to be subjected to the practices, accounting for 80 percent of students secluded or restrained in one study.
Seclusion refers to isolating a student in a locked room or other space from which they’re unable to leave. Students are not always monitored during these periods. This is different from a disciplinary time-out or a time-out used to help calm a student.
Restraint refers to limiting a student’s movement. It may be all or some of a student’s body. Subjected to seclusion or restraint, no longer feel safe going to school. In some cases, students
These practices have been found to cause emotional and mental harm to students. Students are physically injured.
The U.S. Department of Education has found that, in some cases, the use of seclusion or restraint deprives a student of their right to a free appropriate public education. Numerous studies have found that school districts underreport how often they use seclusion or restraint.
These practices don’t make schools safer. They may worsen a student’s behavior. If your child has been subjected to seclusion or restraint, contact the Education Law Team at the LLF National Law Firm.
District Policies
South Dakota school districts have considerable leeway in determining their seclusion and restraint policies. One common policy is that schools limit the use of seclusion and restraint to situations when there’s an imminent threat of harm or injury to a student or other member of the school community.
Sioux Falls School District uses this type of policy. The district allows school staff to use seclusion and restraint as a last resort and when:
- Less restrictive interventions weren’t successful
- It’s necessary to protect any member of the school community from harm or injury
In addition to shielding students and other staff from harm, Sioux Falls staff can use seclusion and restraint in self-defense. Schools should discontinue the use of seclusion or restraint when:
- The dangerous behavior ends
- The threat passes
- A medical condition places the student subjected to seclusion or restraint at risk of harm
The district requires training for all staff who may have to use seclusion or restraint.
Colleges and Universities in South Dakota
Once students with disabilities enter college, IDEA no longer applies. The Americans with Disabilities Act (ADA) and Section 504 are now the two primary laws that protect their rights.
Unlike the K-12 years, the right to a free appropriate public education no longer applies. Schools, regardless of being public or private, have more flexibility in taking disciplinary action against students, including expulsion. Schools don’t have to conduct manifestation determination meetings.
College and graduate students must shoulder more responsibility for their disability. They’re responsible for any assessments or evaluations, including the cost. They must contact a school to request accommodations. They have to provide documentation of their disability.
Minimal Support
Each school sets its policies for disability accommodations. Current college and graduate students state that what schools are legally obligated to do is the bare minimum and doesn’t necessarily provide sufficient support for students with disabilities.
Given that colleges and universities have fewer requirements for supporting students with disabilities, students with disabilities have another responsibility. They need to select a school that can best support their disability. While K-12 schools have no requirement for providing identical accommodations, the difference in accommodations can vary even more once students are in college.
Students should plan on interviewing colleges and universities before attending. These meetings can give them a better idea of whether and how a school will support them.
The University of South Dakota’s Disability Services Office reminds students that they don’t have to disclose their disability. The university considers what documentation is required on a case-by-case basis.
As college and graduate students must self-disclose a disability to receive services, it’s perhaps not surprising that the majority don’t inform their school. This not only deprives them of accommodations but can make it more difficult for students if and when they’re accused of misconduct.
For students with disabilities, navigating the disciplinary system in college can be doubly challenging. This is true regardless of whether or not they inform their university about their disability.
Defense and Disability
College and graduate students can face a wide array of misconduct allegations. Title IX, academic issues, and other violations of a school’s code of conduct can all result in disciplinary action.
When a student with disabilities faces allegations of misconduct, they may think that their school’s disability support office can help. These offices aren’t generally designed to handle misconduct issues. Their focus is on documentation, accommodations, and grievances related to accommodations.
When college or graduate students with disabilities face disciplinary action, they need someone who understands the process and will advocate for them. The Education Law Team at the LLF National Law Firm can help.
Protect Your Education
All students deserve the right to attend school and have the opportunity to reach their educational goals. The discriminatory use of discipline against students with disabilities, however, makes those goals more difficult to achieve.
If you or your student is facing discipline related to a disability, contact the Education Law Team at the LLF National Law Firm. We protect our clients’ rights to an education free from discrimination. Call us at 888-535-3686 or fill out an online form.