Discipline for Manifestations of Disabilities
S. L. Crum, B.S., M.S., Ph.D.

From a parent’s perspective, a problem in the area of disciplining children for manifestations of their disabilities is embedded in the following section of the law:

“Referral to and Action By Law Enforcement and Judicial Authorities,” 20 U.S.C. §1415(k)(9)(A) states that “[n]othing in this part shall be construed to prohibit an agency from reporting a crime committed by a child with a disability to appropriate authorities or to prevent State law enforcement and judicial authorities from exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with a disability.”

Criminalization is nonproductive for the child

Many parents report that their children have delinquency petitions or criminal reports filed against them for behaviors that are a manifestation of their disabilities. Unfortunately, this criminalization of manifestations of a disability takes an enormous toll on even those students who are vindicated or whom prosecutions are dropped or charges dismissed as a result of the court system intake, screening or diversion programs. We all know that within the school to prison pipeline students who are adjudicated delinquent frequently end up incarcerated where they do not receive FAPE. Therefore, it is important for parents to address behavioral problems secondary to their child’s disability immediately and thoroughly through correspondence and collaboration with the school

Document your concerns and proposed solutions in writing

When writing the school remind them that under IDEA the school district’s duty to provide FAPE includes a duty to identify, evaluate and serve children whose disabilities have behavioral consequences; and to address that behavior with appropriate educational and supportive services that include specific steps being taken when problem behaviors arise. In particular, you might refer them to Howard S. v. Friendswood School District, 454 F. Supp. 634, 640 (S.D. Tex. 1978)(finding that plaintiff, whom school officials sought to expel following a suicide attempt and hospitalization, "was not afforded a free, appropriate public education during the period from the time he enrolled in high school until December of 1976, [which] was...a contributing and proximate cause of his emotional difficulties and emotional disturbance"); Stuart v. Nappi, 443 F. Supp. 1235, 1241 (D. Conn. 1978) (school's "handling of the plaintiff may have contributed to her disruptive behavior"); Frederick L. v. Thomas, 408 F. Supp. 832, 835 (E.D. Penn. 1976) (recognizing that an inappropriate educational placement can cause antisocial behavior).

Request an IEP team meeting

It is because of this pattern that I advise parents, if your child is experiencing behavior problems in school immediately confer with all parties involved one on one. Then, in writing request and IEP team meeting delineating your concerns and listing the positive behavioral supports that you feel need to be added to your child’s IEP to eliminate the occurrence of these behaviors. If the team is unwilling to address this issue, follow up with a written request for a written notice of refusal delineating the team’s reasons; and then counter with your own letter indicating your understanding of their position and restating the interventions your request and the reason for those interventions. Indicate that failure to address these manifestations of your child’s disability is in and of itself a failure to provide FAPE. Remind the school district in writing that IDEA was amended as early as 1997 to expressly require the use of positive behavioral strategies and interventions and functional behavior assessments. See 20 U.S.C. §1414(d)(3)(B)(i) and 1415(k)(1)(B). The 1997 amendments also recognized the importance of research-based practices for addressing behavior, and their dissemination to teachers. See 20 U.S.C. §§1412(a)(14) and1413(a)(3)(A), each incorporating by reference 20 U.S.C. §1453(c)(3)(D)(vii). See also 34 C.F.R. §300.382(g).

If your child is on grade level, but has behavioral issues

If your child happens to be functioning at or above grade level or academically on tests, also remind the district that the ability to test appropriately is not the sine qua non of “educational benefit’ Seattle School District No. 1 v. B.S., 82 F.3d 1493, 1500(9th Cir. 1996). In fact, the IEP team is suppose to address the your child’s unique educational needs in terms of academic, social, medical, emotional, communicative, physical and vocational needs. Babb v. Knox County School System, 965 F.2d 104, 109 (6th Cir.), cert. denied, 506 U.S. 941, 113 S.Ct. 380 (1992), Mohawk Trail Regional School District v. Shaun D., 35 F. Supp. 2d 34, 42-44 (D. Mass. 1999), Seattle School District No. 1 v. B.S., 82 F.3d 1493, 1500 (9th Cir. 1996. Since your child’s disability entails behavioral issues, your child’s program of special education as defined in their IEP must include special education aimed at addressing these behavioral issues and any necessary behaviorally related services including crisis prevention, counseling or other intervention strategies and services to avoid the manifestation of these of your child’s disability.

Request a Manifestation Determination Hearing

If your child is being excluded from activities that other children participate in due to these behavioral manifestations of their disability or otherwise being punished for manifestations of their disability, you need to state this in your letter and to remind the school district that Section 504 indicates that a qualified individual with a disability “shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance...."1 Title II of the ADA similarly provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”, and that in view of t his you consider the school district’s actions to constitute discrimination against your child because of his/her disability. At this point request a manifestation determination hearing to confirm in the IEP that your child’s behaviors are a manifestation of his/her disability and to develop interventions (Behavioral Intervention Plan with positive supports) that help modulate your child’s behaviors and eliminate discrimination against your child.

If your child is being discriminated against

It is also important to state that both 504 and ADA require reasonable accommodations and modifications to rules, policies and practices when necessary to avoid discrimination, and that the behavioral intervention plan and positive behavioral supports you are requesting fall under the realm of such reasonable accommodations and modifications to rules, policies and practices.

If your child is being signaled out for disciplinary action or report to legal authorities but other students without disabilities who were involved in the same or similar incidents were not, you also need to state this and indicate that a student with a disability cannot be signaled out disciplinary action or filing of a police report or delinquency petition for behavior that is has not been treated as a crime when manifest by non disabled students. Nor can the district employ adverse treatment based upon your child’s status as a student with a disability by filing a legal report or action for behavior that is a known aspect of your child’s disability and that is not normally considered to match elements of the alleged crime such as a child with Tourette’s Syndrome uncontrollably stating they are going to blow up the building with no intent to do so. 8 See, e.g., McCracken Co. (KY) School District, 18 IDELR 482 (OCR 10/31/91) (students without disabilities who misbehaved were not put in closet as a discipline measure); Sumter Co. (SC) School District #17, 17 EHLR 193 (OCR 9/28/90) (nondisabled students involved in confrontation with student with AIDS, who was then suspended, were not). Such a claim may be grounded directly on the statutes, and/or on the §504 and Title II regulations prohibiting different treatment. See 34 C.F.R. §104.4(b)(ii), (iv); 28 C.F.R. §35.130(b)(ii), (iv). 9 See Castro Valley (CA) Unified School District, 29 IDELR 615 (OCR 3/4/98); Richland (SC) School District #2, 29 IDELR 980 (OCR 7/7/98). 10 The statutory crime of terroristic threatening commonly requires a purpose or intent to terrorize the target of the threat. See, e.g., Ark. Code Ann. §§ 5-13- 301(a)(1)(B); Minn. Stat. §§ 609.713; R.R.S. Neb. §§ 28-311.01; O.C.G.A §16-11-37 (Georgia); N.D. Cent. Code, §§ 12.1-17-04 ; Tex. Penal Code §§ 22.07.

Obtain support from your child’s medical/mental health providers

Then, take your child to see your pediatrician, your psychologist and your psychiatrist. Provide them copies of everything to date, ask them to examine your child and to prepare a report indicating what positive supports and behavioral interventions they feel are necessary within the school setting. Ask these providers to observe your child in school if at all possible, in order that they can adequately contribute to the IEP team relevant information about functional behavior and the development/implementation of a behavioral intervention plan.

Be proactive with Child Protective Services

Next, take the reports from your providers, your correspondence with the school and head down to your local Child Protection Agency to request that they assist you in obtaining appropriate interventions for your child in school. They probably wouldn’t help, but they will now know you for a concerned parent advocating for your child and have all appropriate records, so they will be able to put any alleged charges of parental neglect or abuse in perspective should they arise.

Follow up by taking all the same information to your local Sheriff’s or Police Department so that they know if there are charges filed against your child or a call to remove your child from the school, that your child is a disabled child and these behaviors are manifestations of their disability and should be treated as such. Ask the local police authorities to make a formal written referral back to the school district for a manifestation determination hearing in the event that this occurs, and to call you before removing your child from the school, so that you may accompany them to support your child emotionally.

Be Proactive with Local Law Enforcement

After this, visit your local protection and advocacy agency with the same documentation and request. Ask that they file a request with your district for a manifestation hearing determination. At the manifestation hearing or IEP meeting, insist that an updated statement of your child’s present levels of educational performance include the most recent behavioral incident and discuss the impact of their social/emotional/behavioral manifestations upon their educational functioning. Also insist that there are corresponding measurable annual goals with either benchmarks or short-term objectives that address all the areas of educational needs resulting from your child’s disability. This may require a specific behavioral intervention plan, the addition of counseling, and training in relaxation techniques or self-advocacy skills. It may include neurofeedback to improve impulse control, attention and reasoning skills. It may include anything that the team deems necessary to help the child control the behavioral manifestations of their disability. Be certain the IEP specifies the special education or specialized instruction and related services that will address these issues.

Insist on reconvening the IEP after each incident

Remember that the school district is mandated to convene an IEP to consider all of your child’s needs, evaluation data (including input from your providers), current program and placement, placement options and parental input when modifying the IEP 34 C.F.R. §§300.343, 300.344,300.535 and 300.552, In addition, if the district takes a disciplinary action against your child, the IEP team is required to reconvene in order to arrange for a functional behavior assessment and develop or modify a behavioral intervention plan. If the district does not follow through with IDEA mandates within ten days of receipt of your written request, then file a second written request (employing the same procedure as outlined above, except that this time send a copy directly to your State Department of Education via email or fax , followed up with a copy sent certified mail return receipt requested) requesting a mediation and delineating your specific concerns and the desired resolutions you want included in your child’s IEP along with the reasons you are asking for those resolutions.

Mediation

If the district agrees to mediation, it is suggested that you bring a special needs coach/advocate to the meeting with you in an attempt to work cooperatively to address your child’s emotional/social/behavioral needs.

If mediation does occur it is a less formal procedure than due process where an impartial mediator hears the parents concerns and wishes and the school districts, then goes back and forth between the two to negotiate an agreement between the parties. It is less cumbersome, less intimidating, less stressful and less expensive than due process. Mediation also requires less time to accomplish, which may be a significant benefit when your child is in need of assistance.

If the school district refuses to participate in mediation, or mediation is not fruitful, then it is recommended that you consult with an education attorney regarding due process. Prior to due process, however, you may wish to file a “Gebser Letter” as a final attempt to resolve before proceeding to the more formal and stressful due process.

Due Process

If you do go to due process, you may want to indicate in your complaint that you are seeking a finding that the school system’s filing of the petition or crime report was improper under education law, and that the hearing officer order the school to seek dismissal of the petition and to take specific actions such as development of an appropriate BIP with positive behavioral supports, provision of counseling, provision of legal representation, and so forth to help the student obtain a favorable outcome in juvenile court. Sometimes, parents report that the impartial hearing offers claims they do not have jurisdiction to do this, and therefore, will not hear a case on these issue. In that event, it may be important to remind the hearing officer that the hearing officer has broad discretion as indicated by IDEA. In fact, “shall grant such relief as the court determines is appropriate.”3 The Supreme Court interpreted this language in School Committee of Town of Burlington v. Department of Education as follows: “The ordinary meaning of these words confers broad discretion on the court. The type of relief is not further specified, except that it must be “appropriate.” Absent other reference, the only possible interpretation is that the relief is to be ‘appropriate’ in light of the purpose of the Act.”4

This was reinforced in another case “[i]t seems incongruous that Congress intended the reviewing court to maintain greater authority to order relief than the hearing officer....Given the importance the IDEA places on protections afforded by the administrative process...the hearing officer’s ability to award relief must be coextensive with that of the court. To find otherwise would make the heart of the Act’s administrative machinery, its impartial due process hearing, less than complete.” Cocores v. Portsmouth School District, 779 F. Supp. 203, 205-6 (D. N.H. 1991) (internal quotations and citations omitted). See also Harris v. District of Columbia, 19 IDELR 105 (D.D.C. 1992). If at all possible, however, you want to work cooperatively with the district to address your child’s special needs prior to any criminalization of their behaviors, and to collaborate in a fashion that has as its goal the avoidance of such a confrontational process as due process. This is the reason that is so crucial to rely upon significant adults in your child’s life and your primary care providers to participate in IEP meetings and manifestation determination hearings to redirect everyone to focus on the development of positive interventions and supports to address these problems before they escalate. You goal is to keep the focus on providing your child FAPE that enables your child to function at school, at home and in the community.

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Remember all of this information is based upon my personal experience assisting parents and their children. It does not constitute legal advice. At the point that the school makes a criminal or police report on your child, be certain to contact an attorney immediately. The purpose of the above information is the help you avoid a situation reaching the point where such a report would be filed.

 

Presented as a community service by,

Susan L. Crum, B.S., M.S., Ph.D.
Special Needs Coach
Able2Learn
Email: Able2learn@live.com
Voice and Fax: 863-471-0281
Website: specialeducationsupport.org