Children with disabilities may get into trouble every now and again, just like other children. When it comes to the discipline of students who have disabilities, public schools have a special obligation to consider the possible role of the child’s disability. There are federal and state laws that provide guidance in this area.
Section 504 of the Rehabilitation Act of 1973 prohibits any program that receives any federal funds from discriminating against an “otherwise qualified” individual based on their disability, when it comes to accessing, participating in, or benefiting from that program. If a student is punished for a behavior that is caused by his disability, that could be considered discrimination. In order to be sure that such discrimination does not happen, schools should take a look at any possible connection between the behavior in question and the student’s disability when making decisions about discipline. Many school systems use a process that is similar to Manifestation Determination Review (MDR) that is described in the Individuals with Disabilities Education Improvement Act of 2004 (IDEA ’04). Each school system must develop its own Section 504 policy so you would need to check with your local school system to learn the details about how the discipline of students with disabilities is handled.
IDEA ’04 and state special education laws, allow school officials to consider the discipline of students who receive special education services on a case-by-case basis. This allows them to consider things like the nature of the child’s disability, the functioning level of the child, the intent of the behavior and other relevant factors. This flexibility is there to help make sure that schools respond to violations of the code of student conduct in an appropriate way, especially when a change in placement is being considered.
If a decision is made to change the placement of a child with a disability (as defined by IDEA), the school must hold an MDR meeting to determine whether the behavior in question was caused by, or had a direct and substantial relationship to the child’s disability. The group, which includes the parent, a representative of the school district, and relevant members of the child’s IEP team, will also consider whether the behavior or violation was the direct result of a failure to properly implement the child’s IEP. If the answer to either of these questions is “yes”, then the behavior is determined to be a manifestation of the child’s disability and the child is returned to his or her previous placement and provided with appropriate positive behavior intervention and supports.
Sometimes the team that conducts the MDR looks too narrowly at the child’s disability. They may only consider the child’s category of eligibility for special education services. Instead, the team should review all relevant information in the child’s special education record, including the child’s IEP, along with teacher observations and any relevant information provided by the parents. As an example, a child’s category of eligibility could be specific learning disability, but consideration of the child’s “disability” should also include possible impacts of ADHD and anxiety disorder diagnoses. The team should look at the whole child as they make a decision about whether the behavior was a manifestation of the child’s disability, just as they should consider the whole child when determining eligibility for special education, or when developing the IEP.
We often have to remind parents of children who receive special education services that it is the school district as a whole that is responsible for providing a free appropriate public education (FAPE) for their child. They are not limited to the resources within their child’s specific school building. This would seem like a no-brainer, but it is surprising how often that detail is missed when an IEP team or other school staff are trying to address the needs of a student who has a disability.
School staff will sometimes only think about the personnel that is currently assigned to that school when they are considering instructional strategies, adult-to-child support, equipment and assistive technology, behavioral interventions and supports, etc. Sometimes good ideas are dismissed because “we don’t have the resources for that.” Lack of resources is not a legitimate reason to fail to meet a child’s educational needs, but it is also a reality that resources are not unlimited.
One of the qualifications to serve as the LEA Representative on an IEP team, is for that individual to have knowledge of the resources of the entire school district or Local Education Agency (LEA). The LEA Representaive should be able to tell the team about LEA staff with special expertise who can be brought in as consultants who can provide ideas, training or help create a plan of action. Behavior Specialists and Psychologists can lead the functional behavior assessment (FBA) process and help develop positive behavior support plans. Reading specialist can help identify which reading program might be a better fit for a particular student. Specialists can also help staff better understand a particular disability, how it may impact the child in question, and offer research-based interventions and strategies that have been proven to be effective. Many school systems have staff who can conduct assistive technology assessments and help identify devices or equipment that might be appropriate for a specific child. Other specialist have much to contribute as well. Somebody just needs to invite them in!
There may also be specialized programs offered within a school system that not everyone knows about. In a worst-case example of that, there was child who received only very limited home bound services for months due to his behavior. The school had told the parent that they had tried “everything” before removing the child from the school. After the parent sought help from the Parent Training and Information Center, an IEP meeting was held with several Exceptional Children’s Department central office staff members present. It turned out that the school district had three different alternative education programs that could have provided this child with a full-time education in a less restrictive setting. These programs were not considered because the people in the school building were not aware of them.
Many state education agencies also offer consultants who can be called on for help, often at no cost to the school district. There may be centralized funds that can be used to meet a student’s disability-related needs. There may also be clinicians and programs available within the local community that can help either during or outside of school hours.
The bottom line is that school teams should keep looking and asking questions until they find something that will work for the child. When they have tried everything in the school building tool box without success, they should go out and get more tools. Giving up or settling for anything less than true FAPE is not an option.
Ask ECAC will occasionally discuss a situation or question that repeatedly comes to us from parents. We will offer an answer that will be of use to the vast majority of our readers. As with all things related to special education and people with disabilities, there are factors unique to each child that may have some bearing on how to best handle your particular situation.
Question: My 5 year old son has Autism Spectrum Disorder and he receives special education services at school. His kindergarten teacher has already told me that she is concerned about my son’s safety and he will only be able to go on field trips with his class if I come along to personally supervise him. Do I have to agree to this?
Answer: If extra conditions or restrictions are put on your son’s ability to participate in a school activity solely because of his disability, this would be considered to be a form of discrimination that would be inconsistent with Section 504 of the Rehabilitation Act of 1973. Section 504 is a federal civil rights law that prohibits any program that receives federal funds from denying a person with a disability the equal opportunity to access, participate in, or benefit from that program. Our public schools receive some federal funding, and any child that has an IEP is a person with a disability under Section 504.
One thing that you may want to do is call for an IEP meeting and make sure that your child’s IEP clearly includes field trips and extra-curricular activities as part of his General Education Program Participation. Regardless of whether he will be taking the field trips with a special education class or a regular education class, any accommodations or supports that your child will need should be clearly listed and described. Such accommodations could include things like: close-proximity adult supervision at all times, preferential seating away from interior and exterior doors, or adequate staffing to allow for removal to another area, if needed. These accommodations are not on the drop-down box of the computer programs commonly used for IEP writing, but they can be added as “Other”. Also, preparation ahead of time so that your child knows what to expect, and communication with the teacher about how to handle some “what if…” scenarios should reduce the chances of running into any significant problems on the day of the trip or special event.
If you still find that there is resistance to including your child in these activities, discuss your concern with the school principal and, if necessary, your school system’s Section 504 Coordinator (they may be listed under “Federal Program Compliance” or some similar title). In North Carolina there is a Section 504 Consultant at the Department of Public Instruction, but the entity officially charged with enforcing Section 504 in schools is the Office for Civil Rights (OCR) at the U.S. Department of Education. Formal Complaints about disability discrimination would need to be submitted to OCR for investigation. Hopefully, things will be resolved long before that step becomes necessary.