Legal Briefs from Matt Cohen
The following are past questions and answers from Matt Cohen on this topic.
Can schools legally keep students with ADHD off of the honor roll because of behavior issues?
My son is in the 7th grade. He has ADHD, and we have an aid with him in his classes. He was an honor student every quarter last year. He is at the same school this year, but now, even though he has the marks for an honor student, they refuse to designate him an honor student because of his behavior. His behaviors include sometimes talking out or talking without raising his hand. We hired a lawyer in elementary school, but we can't afford it now; and I remember the lawyer saying that they can't penalize him because of his behavior. Thank you for your help with this.
If the "honor student" system uses criteria that are not based on behavior, there would be a strong argument that your son's disability-related behavior should not be a basis for denying him the honor. If the honor does have criteria related to behavior, his disability should be taken into account as a factor that is contributing to his inability to meet the behavioral criteria. Though the school may be permitted to consider it to some extent, they should also review whether they have taken appropriate steps to address and provide support for him so that the behavior is not a problem.
Can a diagnosis of ADHD influence a judge's decision in a criminal trial?
My son has ADD/ADHD and we had hopes he would eventually grow out of it. As his lifestlyle became difficult, it also has become expensive where he has skipped court appearances to take a test. He neglected to think of resheduling after the fact and then let go of the responsibility, causing him unbelieveable problems later. It seems to repeat itself again and again.
The courts are probably enjoying all of his huge fines. I am so afraid they need to relate to his problem this time, and he needs to also get help. Would it be a good idea to disclose his medical diagnosis of ADD to a judge in hopes of decreasing a fine he has to get hit with? He owes probably $6,000 in fines already. And this new one could be as much as another $1,000 or more.
What do you think? I wish I would have turned to this sooner. He may have not so many problems now.
The questions you raise are criminal matters. You should consult with a local criminal lawyer in your area with respect to your specific issues. However, as a general matter, it may be helpful to understand the role that disability can potentially play in any criminal proceeding. There are essentially four ways that disability can be a factor in a criminal case.
First, if an individual is clinically and legally incompetent to understand and participate in their own defense, they may avoid going to trial, either temporarily, or if their condition is permanent, forever. This could occur when an individual is severely mentally retarded or severely mentally ill and requires a high level of expert proof. Generally, if someone is not competent to stand trial, they are ordered to receive treatment and may still be tried at some point if they regain competency. ADHD usually would not be a serious enough condition to render someone incompetent to stand trial.
Second, if a person is competent to stand trial, states have differing rules, but generally allow severe impairment, e.g., severe retardation or insanity, to be used as a defense. Depending on the state, that may lead to a number of different technical verdicts, which have the effect of avoiding the normal penalties, but generally lead to the person being hospitalized or institutionalized, typically as long as their condition persists. As with the issue of competency to stand trial, it is highly unlikely that ADHD would be accepted as a defense, such as an insanity plea.
Third, disability can be taken into account as a mitigating measure. This occurs where the person is found guilty, but evidence suggests that the person's disability contributed to their conduct. This may, under some circumstances, lead to a less harsh sentence.
Finally, disability can be a factor in relation to what is called the disposition or sentencing stage. If it can be established that the person has the disability, that it impacted their conduct, and that they need treatment, the court may take this into account both with respect to the severity of punishment and in consideration of therapeutic options as part of or instead of incarceration.
The circumstances where disability is given serious consideration vary widely with each case, each judge and with the laws of the particular state. Unfortunately, many courts, and even many lawyers, are not very familiar with ADHD and may not see it as a serious factor in the case, even when it did have a significant impact on the individual's conduct. Again, it is important to consult with a criminal lawyer in your state to assess whether your son's diagnosis has any significance in relation to his criminal defense.
What are some legal strategies to help a child with a disability who is being punished for behavior related to their disability?
My daughter with learning disabilities was isolated in the classroom as a punishment for having difficulty focusing. Recently, she reported that she was threatened with being sent to the principal's office because she didn't ask for help with a math assignment. She is very intimidated by this resource room teacher who frequently yells at her.
My daughter doesn't have behavior problems, but is struggling with her LD in math. We have had numerous meetings with the principle and teachers. Is there legal protection for a disabled child in the classroom being treated in a punitive way?
Your concern that your child is being punished by the resource teacher due to her difficulty in focusing, which may be related to her disability, which you indicate is a learning disability in math. While your note indicates that your daughter does not have behavioral problems, difficulty in focusing is a behavior which may be due to her already diagnosed issues or to a separate undiagnosed disability.
In addition, if your child is being sent to the principal for problems she is having in the resource room, it would be appropriate for you to request an IEP meeting for the purpose of developing a positive behavioral plan which will assist her with the behavior that is leading to her being disciplined. You may also request that the school district perform a functional behavioral analysis and develop a behavior intervention plan to deal with the difficulties in focusing and any other problems that are contributing to her being sent to the principal's office.
In addition, from the circumstances that you describe, it is possible that your child's teacher is not using the appropriate techniques to address her math disability. It may be appropriate to review her IEP to analyze if different or more appropriate strategies could be implemented to address the math problem.
You may wish to consult with an outside educational specialist or clinical psychologist to review her program and the strategies that are being used in the resource room to assist her to come up with additional ways to address this problem.
Can the school make a child study at home instead of being in the classroom?
I have a 15-year-old son diagnosed with auditory processing disorder and bipolar disease. I was recently "asked" to put him on home study and receive five hours a week of instruction. I have him under regular care of a psychiatrist and am deeply concerned that five hours a week isn't sufficient for a freshman in high school. The teaching staff is complaining that he is sleeping in school and is defiant (only at times) to his main resource teacher. They have basically kicked us out of school at this point. What can I do?
Your question concerns the school districts request that you place your child on five hours per week home study due to problems functioning at school which you believe result from your son's central auditory processing disorder and bipolar disorder. First, the decision to place a student on home study is a change of placement which must be determined by the IEP team, of which you are a member.
If you disagree with the recommendation of the IEP team, you have a right to request a special education due process hearing to challenge the proposal. If you request a hearing within the time period provided by your state for challenging a proposed change of placement before it becomes effective, your child must remain in the last agreed upon placement until the due process hearing is resolved.
In addition, although states typically have rules about the minimum level of services a child is entitled to if a child is placed in home study, the requirement is that they continue to receive a free appropriate public education. The services offered would constitute a minimum obligation, rather than the extent of services to which they are necessarily entitled. If you felt that home study was advisable, you could seek additional hours of service and/or related services from the school district beyond those that they are currently offering.
In addition, if you feel that your child should remain at school but is having difficulty by virtue of their disability, you can challenge the school district recommendation for home study and suggest that more intensive or different services be provided to your child at school in order to address the problems they are having which is leading the school to seek the home study option.
Generally, it would be important for you to have support from outside professionals and/or school staff for the provision of different and/or more intensive services within the school. If the school refuses to provide your desired services within school, this could also be the basis for a due process hearing.
Finally, your question suggests that the school is in effect "kicking out" your child. If the school district is refusing to allow your child to attend school, this would constitute a constructive suspension or expulsion even if the school has not officially initiated suspension or expulsion proceedings. Suspensions in excess of ten school days constitute a change of placement which requires the convening of a special manifestation meeting to determine if the behavior relating to the exclusion is related to the disability, as well as the initiation or review of existing functional behavioral analysis and behavioral intervention plans to address the behavior that is leading to the proposed exclusion.
Again, you would have the option of requesting a due process hearing if you feel that your child is being improperly excluded from school. Even if you're the decision to exclude them from school would ultimately be upheld, your child retains the right to receive continuing services to allow them to make progress on their goals and objectives, have access to the general curriculum, and to address the behaviors that are leading to the exclusion.
Can the school refuse to let a child attend a party because they "can't handle him?"
I was told not to send my son to kindergarten on a day they were having a "fun" activity day because the teacher didn't think she could "watch/handle" him? Is this legal? Should I consult an attorney? He was shortly thereafter diagnosed with ADHD. He cried all day when i told him he couldn't go to school that day. I felt and still feel horrible for not just taking him anyway.
You report that you were told not to send your kindergartener to school on an activity day because the school felt they couldn’t handle him. Subsequently, your son was diagnosed with ADHD. Even if your son had not been diagnosed with ADHD, if he is old enough to be covered by your state’s compulsory attendance laws (kindergarten and/or school attendance prior to age 5 or 6 are not always required under state laws), he has a right to attend school even if he hadn’t been diagnosed with a disability.
The only basis for a school to exclude a child from attendance who is legally enrolled is to follow the procedures relating to suspension and expulsion. State laws may also allow schools to exclude students who do not have appropriate vaccines or certain medical documentation, which is not the issue here. Since your son had not done anything to justify suspension, he should not have been excluded.
Given that your son has subsequently been diagnosed with ADHD, you may wish to inform your school of the diagnosis if you feel that he needs additional services, supports or accommodations. You have a right to request that your child be evaluated to determine whether he qualifies for special education or for a Section 504 plan (which can provide for services or accommodations). If you make a request for evaluation in writing, the school may agree to the evaluation. If they agree, they must discuss with you what testing is needed and obtain your written consent for the evaluation. If they feel an evaluation is not appropriate, they must notify you in writing that they are refusing the request, the reason for the refusal, and inform you of your right to request an impartial hearing to challenge the refusal of the request.
Is it okay to suspend a student over and over again for the same non-threatening, non-violent offense?
Can a school suspend a student for ten days for one specific offense and then a month later suspend him for another six days for a similar offense, and then two months later suspend him for nine days for a different offense, and so on throughout the academic year?
The school indicated that they could suspend the student for up to ten days for each successive incident of misbehavior without a manifestation hearing since the suspensions were not more than ten days each. They offered an in-home tutor.
These incidents involved insubordination and did not involve a threat of harm to self or others, (e.g., threat or physical aggression, hand gun, illegal substances, etc.)
Your question concerns the rules applying to whether a school can suspend a child multiple times in an amount which cumulatively exceeds the ten school day limit on suspensions occurring without the exclusion being treated as a change of placement, triggering the IDEA and 504 disciplining safeguards.
Under IDEA and Section 504, the rules have traditionally required schools to count the total number of days to suspensions. If the total days exceeded ten days in the aggregate and were either close in time or reflective of the pattern of similar behavior, the total number of days of suspension could not exceed ten school days.
Unfortunately, from my perspective, under the new IDEA 2004 rules, the school need only treat a suspension as triggering the ten day safeguards if the behaviors are part of a pattern and are close together in time. 34 CFR § 300.536 (a).
Moreover, it is up to the IEP team/administration to make the determination. 34 CFR § 300.536 (b)(l).
What should a parent do when their teenage son has behavioral problems that might lead to fights with other students?
My son has been diagnosed with ADHD and has been retained twice. He is now in the 10th grade and still has multiple issues with his behavior. He has a teacher that agitates him and this has been brought to the attention of several school representatives. No one has bothered to address this until he is now being suspended for three days and is being sent to an alternative school for 45 days because an associate principal was hurt after trying to hold him back after he was hit in the back of the head by another boy at his school. Another assistant principal told another one of my son's that he heard friends of the boy who hit my oldest son that there were going to jump on both of my sons at the part later on that day. My younger son told my oldest son this news which made him even more upset.
Based on the manner in which the school handled the situation, should my son be sent to the alternative school, especially since the assistant principal was present in the ARD we had for my son when he first started attending that school? Knowing this information about my son, should he have not tried to do more to remove my son from that situation? It could have kept the associate principal from getting hurt.
If you disagree with the school's decision to send your son to an alternative school, you have a right to request an impartial due process hearing to challenge the transfer. However, your child will be in the alternative 45 day placement while the hearing is pending. You have a right to request an expedited hearing, which means the hearing is supposed to occur within 20 days of receipt of your request. However, as a general matter, the school district's failure to remove your son from the situation demonstrates poor judgment, but would have greater legal significance if your son's IEP referenced this behavioral problem or had a specific procedure for dealing with it. In the future, you should try to ensure that the IEP has a behavior plan which addresses these issues and prescribes how the staff should respond if your son is having difficulty, regardless of whether he started the problem or not.
This benefits your son in two ways. First, it provides a more proactive and positive plan to help him maintain appropriate behavior. Second, it sets out the school's responsibilities and gives you a strategic means to hold them accountable if they fail to follow the plan.