Students with disabilities have the same due process rights as their peers without disabilities, as well as additional protections to ensure their continued access to a free and appropriate public education (FAPE). A range of conditions may qualify a student for enhanced procedural safeguards when facing school discipline. Qualifying disabilities are not limited to physical and developmental disabilities but also include mental and emotional disabilities.

Does a Student’s Disability Play a Role in School Discipline?

Both New York State and federal education law afford enhanced due process rights to students with disabilities in order to:

• Avoid punishing students for behavior that is a manifestation of their disability, and thus out of their control
• Ensure students with disabilities are provided with positive behavioral interventions rather than punishment to address their behavior whenever possible

What Qualifies as a Disability in New York Education?

Both Federal and New York education law construe “disability” broadly to include mental, physical, and emotional disabling conditions. If a long-lasting condition impairs a student’s ability to learn and/or participate in school, it may be considered a disability under federal law: IDEA (Individuals with Disabilities Education Act). In New York state, a child who requires special education services to receive an appropriate education is a “student with a disability” (NY Education Law § 4401).

Would a Student with a Mental Health Condition Qualify for Special Education Support in New York?

Students with disabilities are entitled to a free and appropriate public education (FAPE). If a student has a mental, physical, or emotional condition that negatively affects their ability to learn and/or fully participate in school, that student is considered to have a disability, and is therefore entitled to special education services and resources. Special education services/resources can include support like assistive technology, psychological services, speech pathology, mobility services, transportation, etc.

In New York, qualifying disabilities fall under the following categories:

• Autism
• Deaf-blindness
• Emotional disability
• Hearing impairment
• Learning disability (LD)
• Intellectual disability
• Orthopedic impairment
• Other health-impairment (including asthma, diabetes, epilepsy, etc.)
• Speech/language impairment
• Traumatic brain injury (TBI)
• Visual impairment, including blindness and partial blindness
• Multiple disabilities

Multiple disabilities refers to concurring disabilities which combine in such a way that special education services for one condition cannot accommodate both. This does not include the combination of deafness and blindness, which falls under the category of “deaf-blindness.” However, deaf-blindness may occur alongside another disability, like an orthopedic impairment, which would then be multiple disabilities.

What Students Qualify for the Enhanced Protections for School Discipline?

Enhanced procedural safeguards for student discipline apply to a student with a disability or a student presumed to have a disability.

Any Student with an individualized lesson plan (IEP) is already considered to have a disability under the law and automatically qualifies for additional protections.

Can my child qualify for additional disciplinary protections without an IEP?

The fact that a student has not been evaluated for access to special education services does not necessarily mean the student does not have a disability for discipline purposes. There are circumstances in which a student without an IEP is presumed to have a disability. Meaning, schools are expected to be aware of a potential disability and therefore extend enhanced rights when disciplining that student.

For school discipline purposes, your child is presumed to have a disability if one or more of the following occurred before the problem behavior:

Parent’s Evaluation Request: You requested an evaluation for your child to access special education services, like an IEP or 504 Plan.

Parent Communication: You communicated in writing with the teacher (or another appropriate representative of the school or educational agency, like a principal) that your child may require special education services.

Teacher/School Personnel Observation: The teacher or another member of school personnel identified concerning tendencies or behavior from your child and relayed that concern to your school district’s special education supervisory personnel or other supervisory personnel, like a principal, assistant principal, or superintendent.

Would a Student with a Disability Ever Not Qualify for Enhanced Protections?

Yes, it is possible for a student to have a disability but not qualify for enhanced discipline protections under IDEA (Individuals with Disabilities Education Act). This may be the case if the school has no “basis of knowledge” of the student’s disability (34 C.F.R. § 300.534(c)), which happens in a few circumstances:

Parent Refused Consent: If the student’s parents refused to permit an evaluation or refused all special education services, the student is not considered to have a disability for education purposes and does not qualify for IDEA’s enhanced discipline protections.

Previous Evaluation: If the student had previously been evaluated and determined not to have a disability, they would not be considered to have a disability and would not qualify for enhanced protections during discipline.

Note: If a parent consents to an evaluation and some special education services, the student is considered to have a disability for disciplinary purposes.

My Student Isn’t Failing Class. Do they Qualify for Disability-Related Services and Protections?

Academic failure is not a prerequisite for support under the Individuals with Disabilities Education Act (IDEA Sec. 300.101(c)(1)). School districts make determinations of a student’s eligibility on an individual, case-by-case basis. If, for example, a child with depression requires additional support in order to participate fully in their education, they are entitled to special education and related services in New York. This includes enhanced rights when facing discipline for behavior related to their disability.

Can a Learning Disabled (LD) Student Avoid School Punishment for Their Conduct?

Students with disabilities have enhanced protections, but they are not immune to any and all discipline. If the problem behavior is not a manifestation of a student’s disability, the student may be disciplined to the same extent as their peers without a disability. If the behavior does stem from a disability, they would qualify for enhanced protections when facing long-term suspensions.

There are exceptions for manifestations of a disability that are especially dangerous, regardless of whether the behavior is directly related to a disability. Students may be placed in an Interim Alternative Educational Setting (IAES) for up to 45 school days for behaviors that involve:

• A weapon
• A controlled substance or illegal drug
• A serious injury, like a concussion or broken bone

What if We Didn’t Know About the Student’s Disability Before the Incident Resulting in Discipline Took Place?

There are legitimate instances in which a student with a disability had not been identified as such before the incident, and the incident was a manifestation of their disability. Diagnostic criteria sometimes require a period of time which has not yet elapsed, or a certain number of episodes before confirming diagnosis. The incident may be an early or the first manifestation of a disability. At times, it may take something like school discipline to impel parents to seek additional support and services, possibly after declining them previously.

Unfortunately, if parents previously declined special education services, or the student’s disability was unknown to the school at the time of the incident, then the student will be disciplined as any other student without a disability would be in similar circumstances.

It is possible to request evaluation or reevaluation during the disciplinary process, however. The school should then expedite the evaluation. If the evaluation concludes that the student has a disability, they are then entitled to special education resources, including enhanced disciplinary protections.

Parents may opt in to special education services after previously declining them, but enhanced disciplinary protections would not apply retroactively.

Final Note on Navigating School Discipline

Access to education is a fundamental right. Whether the issue is a lack of accessibility from insufficient disability accommodations, or lack of access from a disciplinary suspension, students are entitled to due process before their right to access education is impinged. That does also mean, however, that student disciplinary matters can progress very quickly, adding stress to an already strained situation. It is critical to seek support early to ensure the best possible outcome for the student in disciplinary or disability matters—but even more so when the two intersect.

Navigating the student disciplinary and appeals process can be overwhelming. Tully Rinckey’s special education attorneys will handle your matter with the attention and tact it deserves. If you have additional questions about the rights of parents and students in New York state, our team of attorneys is available to assist you today. Please call 8885294543 to schedule a consultation, or schedule a consultation online.

Greg T. Rinckey is one of Tully Rinckey PLLC’s two founding partners. He worked with Founding Partner and fellow Hofstra University alum Mathew B. Tully in 2004 to build the firm from the ground up into the coast-to-coast, full-service powerhouse that it is today. As Founding Partner, Greg collaborates with Mat in all areas of strategic planning and law practice management to develop and deploy innovative business solutions that continue to grow the firm.