School Discipline and the Special Needs Child
The federal government recently issued new guidelines aimed at reducing suspensions and expulsions in public schools. Their call to action included statistics showing that children with disabilities are disproportionately affected by school disciplinary procedures. Recent complaints filed against Durham Public Schools (in 2013) and Wake County Public Schools (in 2014) by civil rights and disability advocates are likely to raise additional concerns for Triangle-area parents of children with special needs.
Ann M. Paradis, a local attorney who represents students and their parents in matters of education law, notes that children whose conditions may affect their behavior — such as attention deficit-hyperactivity disorder, autism spectrum disorder, mental health challenges and cognitive disabilities — tend to receive a disproportionate amount of disciplinary action, ranging from temporary removal from the classroom to expulsion and even arrest by school resource officers. As the government, schools and advocacy organizations work to address this complex issue, it's more important than ever for parents to know their children's rights and to advocate for appropriate solutions to discipline issues at school.
While each child's case is unique, the following mandates exist under federal education law:
• A child with a diagnosed disability is entitled to the same opportunities as his or her nondisabled peers (a "free and appropriate education") provided in the least restrictive environment possible. An Individualized Education Plan or 504 Plan documents the services and supports that a child will receive them. If the disability includes behavioral challenges, appropriate interventions should be part of the plan. Nancy Keuffer, exceptional children compliance/behavior support coordinator for Chapel Hill-Carrboro City Schools, notes that parents can play a critical role by helping their child understand what is appropriate behavior at school. "I always tell parents it's important for them to review the school's code of conduct, including information about disciplinary policies for exceptional children," she says.
• Students who receive special education services can only be suspended for a cumulative period of 10 days before the school must conduct a manifestation review to determine if a student's behavior is a result of his or her disability. If the review finds that the student's behavior is a manifestation of disability, suspension for more than 10 days is generally not allowed.
• Paradis says any disciplinary action that removes the child from the educational setting (such as in-school suspension or being sent home early) may constitute exclusion. Schools should document all such interventions so a complete record of disciplinary action is available. A series of shorter suspensions that form a pattern equivalent to 10 days' removal requires an manifestation review as well. Schools should document all such interventions so a complete record of disciplinary action is available.
• Even if it is determined that a disability did not contribute to the behavior, in which case a longer-term suspension is allowed, schools are required to provide educational services during the suspension, create a behavioral intervention plan and determine if further assessment is appropriate.
• Special education students are protected from unilateral movement to a new school, such as an alternative program, as that constitutes a change of placement. "Placement decisions must be made by the IEP team, of which the parent is an important member," Paradis says.
Paradis recommends that parents attend all manifestation review meetings and request a review of the child's special education plan to determine if additional services are appropriate. "Most of the time, suspended and excluded students are not being provided the necessary supports to be successful in school," she says.
Keuffere says if school officials are seeing a pattern of infractions related to a student's disability, it is the IEP team's responsibility to "protect and support that child. If the pattern persists, then it means we need to try different interventions."
Legal Recourse for Exclusion
Parents who feel their child's rights have been violated may take legal recourse. "If changes are not made to the student's IEP to prevent further incidents, the parent could consider filing a complaint with the N.C. Department of Public Instruction or consulting an attorney about filing for a due process hearing with the Office of Administrative Hearings," Paradis says. "Parents of students who are excluded ... due to their disability could also consider filing a complaint with the U.S. Department of Education's Office of Civil Rights. Frequently, exclusion can be resolved quickly with a letter from an attorney."
There is one significant exception to the above protections: If a student brings a weapon or drugs to school or causes serious injury to another person, he or she can be removed from school for 45 days, regardless of whether the conduct was a manifestation of disability. In such cases — and in less serious incidents as well, depending on the school's policies — the student may be charged with a criminal offense. While juveniles are typically appointed an attorney to represent them in court, Paradis recommends securing counsel with experience in education law as well.
It is important to note that without an IEP or 504 Plan in place, a student with a disability may be treated the same way a more typical peer would be. Parents who have concerns that their child's behavior is related to an undiagnosed disability should request a psychoeducational evaluation by the school.
Ultimately, Paradis emphasizes, it is the school's responsibility to meet the standards of federal law, but parents are often their child's best advocate.
"Many times parents feel guilty after they start learning about student and parent rights, and they regret not knowing the information earlier," she says. "But I don't think it's ever too late to learn more about your child's disability, learn the law, and develop effective advocacy tools."
Many schools are taking the new federal guidelines seriously. Keuffer, for example, heads a CHCCS committee working to address disciplinary rates among sub-groups of students, including those with special needs. But it goes beyond that.
"We're looking at disciplinary procedures for all students," she says. "We're looking at the function of behavior and how to use 'restorative practice' — not just imposing a punishment, but rather working with the student to change the behavior and improve the response in the future."
Resources for Families
Disability Rights North Carolina
North Carolina's Protection and Advocacy agency, established by federal mandate to protect the rights of people with disabilities and their families through legal support, advocacy, referral and education.
U.S. Department of Education
Information about federal education law and student rights in schools.
Public Schools of North Carolina, Exceptional Children's Division
State Department of Public Instruction's information and resources on special education.
Partners in Justice
Program established by The Arc to provide support to individuals with intellectual disabilities and their advocates in navigating the criminal justice system.
See "Disability Support and Advocacy" and "Special Education Eligibility/Support" in our Exceptional Child directory listings for additional organizations working on behalf of individuals with disabilities.
Karen Lewis Taylor is a writer, editor and mother of two. She and her family live in Apex.