The Office for Civil Rights has just issued guidance as to how Section 504 of the Rehabilitation Act of 1973 applies to the use of student discipline. Its focus is the balancing that schools must do when considering providing for a student’s disability-based behaviors on the one hand, and maintaining an appropriate and safe learning environment for all students on the other.
Section 504 is a civil rights statute that prohibits discrimination based on disability and applies both to Protected Handicapped Students under that statute and to special education students eligible under the IDEA.
Section 504 mandates the provision of FAPE to eligible students in schools. Its premise is that, for eligible students with behavioral issues, schools are to provide appropriate supports and services responsive to those behaviors and only thereafter can discipline be considered.
OCR’s guidance reminds schools of the process that must be followed for eligible students prior to the imposition of discipline: a manifestation determination must be conducted to establish whether a student’s behaviors are related to the student’s disability. If so, then to impose discipline would constitute discrimination under 504. Discipline can only be imposed if the behavior is not a manifestation of the student’s disability.
However, the first inquiry in a manifestation determination, prior to consideration of a student’s behavior being considered for discipline, is whether the school has offered and implemented FAPE. If not, the student may not be subject to disciplinary consequences. If FAPE has been implemented, then discipline may be applied only after it has been determined that the behavior is not related to a student’s disability.
When the team has determined the behavior was not a manifestation of the student’s disability, discipline under a school’s code of conduct may be imposed in the same manner as if the student did not have a disability.
Schools must keep in mind that so-called informal exclusions are subject of the same Section 504 requirements as formal disciplinary removals, including, for example, asking a parent to come pick up a student early from school or excluding a student from school or a field trip or activity unless a parent agrees to be in attendance. Moreover, OCR’s guidance emphasizes that the nondiscriminatory mandate of 504 extends to the conduct of everyone with whom the school has a contractual or other arrangement, such as school district police officers or school resource officers, lunch or recess monitors, cafeteria staff, and bus drivers.
Thus, schools have a responsibility not to discriminate in, for example, questioning a student with a disability; investigating allegations of a violation of school rules; issuing tickets, citations and fines for violations of school rules, such as truancy; using surveillance technologies; referring disabled students to law enforcement; and carrying out threat or risk assessments of students with disabilities. That said, the guidance also emphasizes that nothing in 504 prohibits a school from responding to emergency circumstances in which a student’s behavior, including disability-based behavior, is an immediate threat to his or her own or other’s safety, such as calling the police.
Moreover, the Section 504 (or IEP) team is responsible for considering the impact of a student’s behaviors on others. The team is responsible for considering when a student’s behavior significantly impairs other students’ education or threatens the safety, not just of the student, but also others’ when determining appropriate supports and services, including consideration of a change in placement.
In fact, schools have responsibilities under Section 504 and other civil rights laws – such as Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972 – to provide remedies to restore or preserve other students’ equal access to the school’s education programs and activities because, for example, a student’s disability-based behavior has created a hostile environment on the basis of race, sex, disability, or other protected classes. For example, should an eligible student harass a classmate, not only must the school team consider appropriate responses for the disabled student, but the school must also offer supportive measures to the student subjected to harassment and provide any individualized services or supports that student needs to access his or her education.
Bottom Line for Schools
The underlying premise of the statute is that student behaviors are, in the first instance, a form of communication, and that premise looks to school personnel to respond, first as educators, and only thereafter as disciplinarians.
That said, the OCR guidance points out the obligation school districts have to all students under applicable civil rights statutes as it responds to one student under 504. The guidance provides that the impact of one student’s behaviors on the safe learning environment for all students may be taken into consideration when providing for the program and placement of the 504-protected student.
Schools with questions about student discipline should contact their legal counsel or a special education attorney at KingSpry.