Legal Protections for Children With Disabilities

An 11-year-old child with mild autism is in mainstream classes at his middle school. One day, a substitute—not realizing he doesn’t like to be touched—taps him on the shoulder to get his attention. The child starts flailing and inadvertently hits the teacher, who later tries to have him suspended.

Fortunately for the student, the federal government has established protections to ensure his disability is taken into account in the school disciplinary process. These protections fall under the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act of 1973, laws that work in tandem to protect the rights of children with disabilities in elementary, middle and high school. In addition, the Americans with Disabilities Act (ADA) provides broad anti-discrimination protections in many aspects of life outside the school setting.

If you’re the parent of a child with a disability, these laws are designed to help protect your child’s rights in common situations. We explore a few of the implications.

School discipline

School discipline may be a concern if your child has a disability that can affect behavior or learning, especially if it’s an externalizing disorder that tends to be more disruptive to others. Brenda Berlin, supervising attorney at Duke University’s Children’s Law Clinic in Durham, emphasizes that a parent must “be an active participant and advocate for your child” to make sure he is not penalized or punished because of his disability.

Since most children with such disabilities are in mainstream classes, Berlin says, this is where many behavior problems — and resulting disciplinary actions — occur. “IDEA is a law that really says all children should be educated together as much as possible, unless the child won’t be successful or his peers won’t be successful,” she says.

According to Berlin, disabilities that can lead to frequent disciplinary action include attention deficit hyperactivity disorder (ADHD), oppositional defiant disorder, Tourette syndrome and autism spectrum disorder (ASD). In many cases, children are repeatedly removed from the classroom or even suspended for behavior problems.

While IDEA allows such discipline for a short period, it can’t be used long-term if the behavior is a result of the disability. “Legal protections kick into place when there’s been a removal for more than 10 days,” Berlin says.

Section 504 also becomes a factor in some discipline cases because it applies to organizations that receive financial assistance from any federal department or agency to cover programs and services. The law specifies that individuals with disabilities can’t be excluded from programs based solely on their disability.

Berlin stresses that parents who suspect their child may have a disability that affects learning or behavior should ask the school to have the child evaluated. Unless that identification is made and the protections provided by IDEA are in place, the child will be subject to the same disciplinary standards as more-typical peers.

If problems arise regarding how discipline is handled, Berlin says to first communicate your concerns to the school administration. If the issue still isn’t resolved, you may consider contacting the North Carolina Department of Public Instruction’s Exceptional Children’s Division.

Athletics Participation

Outside of school-based sports programs, most athletic opportunities are provided through municipal parks and recreation departments or private recreational leagues, both of which are governed by the ADA.

Holly Stiles, an attorney for Raleigh-based Disability Rights North Carolina, says the ADA “protects children from being refused the opportunity to participate solely because the child has a disability.” It requires athletic leagues, teams and organizations to “modify rules, practices and policies as needed for the child with a disability” unless it can be proven that making the modifications “would be an undue burden or fundamentally alter the nature” of the program or activity.

For example, the Department of Justice has settled cases under the ADA requiring leagues to allow a baseball player who is deaf to have an interpreter in the dugout and a football player with visual impairments to wear a tinted visor in his helmet. On the other hand, it may be permissible to refuse to allow a child who uses a power wheelchair to compete in a non-adaptive soccer league.

Triangle municipalities strive to meet or even exceed what is legally required. The Town of Cary’s Parks and Recreation Department, for example, works to include children with disabilities as much as possible by putting on its sports registration form a box parents can check if a reasonable accommodation is needed.

According to Dwayne Jones, the town’s recreation manager, “We’ve really gotten more aggressive in trying to meet [our residents’] special needs. We’re trying to get the word out more that these opportunities are available.”

While Jones acknowledges that most requests are for children with conditions affecting learning or behavior, he says the department wants parents to know that reasonable accommodations can be made for children with physical disabilities as well.

If parents need help resolving an issue with a town-sponsored athletic organization, they should first go to the child’s coach, then to the head of the department, and finally to the municipality or department ADA coordinator. Problems with private teams or athletic leagues should first be addressed with the coach, then the president of the league and then, if needed, through a private attorney or by filing a complaint with the Department of Justice.

Child Care Centers

Child-care centers and preschools also fall under the ADA. Stiles, of Disability Rights North Carolina, says most chronic or life-threatening illnesses would also almost certainly fall under the ADA, which defines disability as a physical or mental impairment that substantially limits one or more major life activities. Common examples child-care centers may encounter are diabetes, cerebral palsy, ASD and food allergies, she says.

Under the ADA, a child-care center would be in violation if it rejected a child’s application based solely on the needs associated with a condition such as diabetes. According to Stiles, if insulin management is required or the child needs to eat a certain type of snack at a particular time, the parents and the child-care center should work together to identify how the child’s disability-related needs can be met.  

The center can’t be required, however, to hire a full-time nurse or make other modifications if it would put an undue burden on the facility, its staff or its operating budget.

Because every child’s needs are likely to be unique, Stiles recommends parents of a child with a disability write a “plan of care” and request a meeting with the child care center to discuss how the child’s needs will be met. If the staff refuses to meet the child’s needs, a more formal request for a reasonable accommodation under the ADA can be made.  If all other attempts fail, a complaint can be filed with the Department of Justice.

As these scenarios suggest, every disability brings its own set of challenges, and concerns must be addressed on a case-by-case basis. The bottom line for parents is to remember that your child has rights and protections under these federal laws, and it’s important for you to know what they are. You can be your child’s best advocate.

Sidebar: American With Disabilities Act

While the American with Disabilities Act provides broad protections to children and adults with disabilities, there are exceptions for certain organizations. The law does not apply to religious organizations or private clubs that can prove an exclusive membership. Church-based preschool programs that do not accept any state or federal money, for example, are not bound by the law’s requirements.

Even if a program is not covered by the ADA, Stiles suggests parents still develop a “plan of care” to help ease concerns about how their child’s disability should be handled. If there is any question about the program’s willingness to accommodate your child, you might want to find a more willing or responsive program while you evaluate your legal options.

If your child has been discriminated against because of a disability, you may consult with Disability Rights North Carolina.  Your child may be eligible for free legal assistance regardless of your family or household income.  Disability Rights North Carolina can be reached toll-free at 877-235-4210 (voice) and 888-268-5535 (TTY).

Robyn Kinsey Mooring is a Durham-based writer and the mother of two boys.

Categories: Exceptional Child