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2 types of discriminatory discipline for students with disabilities

On Behalf of | Aug 29, 2022 | Education Law

Students with disabilities deserve to be treated fairly in education. Section 504 of the Rehabilitation Act of 1973 requires public elementary and secondary schools to handle discipline in a non-discriminatory way. Yet, students with disabilities are frequently subjected to more and harsher discipline than their peers. What does the law require?

Schools have the right to address behavior through discipline, but it must be done fairly and not because of the child’s disability. Section 504 requires schools to provide all K-12 students with a free, appropriate public education (FAPE), and that includes kids with physical, mental and behavioral disabilities.

Education isn’t ‘free and appropriate’ when some kids are treated unfairly

When it comes to discipline, K-12 schools have these two main obligations:

  • To make reasonable modifications to disciplinary policies to accommodate students with disabilities
  • To administer student discipline in a non-discriminatory manner, which means 1) not unnecessarily treating a student differently because of their disability and 2) not having policies that have unjustifiably discriminatory effects on students with disabilities

For example, a school might have a policy requiring silence in the library. If a particular student’s disability makes them unable to completely comply with this policy, the school could either change the policy or choose not to apply it to that student.

Another example of discriminatory discipline would be to assign harsher discipline to a student with a disability than you would for one without. For example, a school would not be allowed to suspend a student with a disability for longer than it would for the same behavior in a non-disabled student.

Section 504 requires certain steps before disciplinary removals

Some so-called disciplinary issues are just the effect of the student’s disability. For example, a person with Tourette’s syndrome might be unable to avoid using curse words at school. Other times, stereotypes about disabilities come into play.

When a K-12 school is considering a disciplinary removal that could seriously impact a child’s education, Section 504 requires the school to consider whether the student’s disability is causing the problem and, if it is, the school is not allowed to exclude the student for disciplinary reasons.

This evaluation must take place whenever:

  • The school is considering expulsion
  • The school is considering 10 days of sequential suspensions
  • There has been a pattern of suspensions totaling 10 school days or more in a single school year

Instead of using disciplinary removal, the school is obligated to consider whether the child’s placement is inappropriate or whether they need additional supports to achieve FAPE.

Schools should be mindful of using discipline to deal with disabilities

Overall, discipline is more likely to violate Section 504 when the underlying behavior is a manifestation of the child’s disability or when negative stereotypes about disabilities are used to justify discipline. Schools do have the right to discipline students with disabilities, as long as they do not discriminate.

Parents who believe their children are being unfairly subjected to discipline due to a disability can challenge disciplinary decisions.

Leigh Law Group represents students in Section 504 cases across California.

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