When is a Threat a Threat? The Rights of Students with Disabilities in Schools

PEAL News Fall/Winter 2018

With the increase in incidents of school violence across the United States, school districts are becoming increasingly vigilant in responding to threats. There are no clear criteria for determining whether or not a statement or behavior by a student with a disability in school is considered to be a threat. It is important not to get caught up in the world of threats, but rather to think about each student as an individual and evaluate the specific situation in light of the student’s disability.

When is a threat real?

A school is responsible for creating a safe and effective learning environment for all students. However, when a statement or behavior is perceived as a threat by teachers and administrators, it often results in school discipline that excludes the student from school (e.g., suspends or expels the student). Schools are generally limited to disciplining students for activities, including threats, that take place in school or coming to and from school. In recent years, the judicial system has allowed schools to discipline students for statements and behavior that occurred outside of school (e.g., online: Facebook, Twitter, Snapchat, Instagram, etc.) when it directly affects the school environment.

School officials cannot stop students, including students with disabilities, from posting on social media sites, like Facebook, when they are outside of school, but there are exceptions. The school can discipline a student for statements made outside of the school day when they can show that the statement:

  • • Disrupts the school environment
  • • Makes an explicit threat against a teacher or another student
  • • Amounts to severe harassment

Refer to the ACLU PA Handbook: Know Your Rights for further examples and information 

Helpful Questions - ThreatsHow should families respond?

If the school contacts a family about disciplining a child with a disability for making a threat:

  • → Schedule a meeting with the school administrator as soon as possible.
  • → Ask to include as many IEP Team members as possible—having an IEP meeting is preferred, but there is not always time.
  • → At the meeting, it is important to take into consideration:
    • • the context of the “threat”
    • • the age of the student • any previous disciplinary history
    • • the expression of the student’s disability, and
    • • other factors to determine whether the student’s words or behavior are a real threat to student or school safety, or a manifestation of the students’ disability.
Are there different rules for students with disabilities accused of making “threats”?

The disciplinary rules or code of conduct at school generally apply to all students, including those with disabilities. A child with a disability is entitled to all of the same school discipline protections as other students. For additional information, refer to the Education Law Center’s publication Fairness in School Discipline in Pennsylvania.

Special Education regulations provide students with disabilities with additional rights related to school discipline. Most important is the right to a “manifestation determination,” which determines if the student’s behavior was in any way linked to his or her disability, or if the threat was a result of the school’s failure to implement the student’s IEP.

Schools are required to complete a “manifestation determination” if the school is considering suspending a student with a disability for more than 10 days. In PA, if a student has an intellectual disability, ANY suspension requires a manifestation determination. PaTTAN provides a manifestation determination worksheet that is a helpful tool for IEP teams.

The IEP team makes a manifestation determination which results in a decision about how best to respond to the student’s “threat.” For example, the IEP team may decide that instead of a 10-day suspension, the student needs instruction on the appropriate use of social media.

Despite their wide-spread use, disciplinary exclusions are largely ineffective in reducing problem behaviors. Research shows that the rate of students who have been suspended on multiple occasions ranges between 35 and 42 percent of all students. This suggests that suspensions do not serve as a deterrent for misbehavior. In fact, suspensions may reinforce the use of problem behaviors for students who wish to escape or avoid school. Many school administrators use exclusionary disciplinary measures not because they wish to remove students from the opportunities to learn, but because they need to do something, and they don’t know what else to do (Skiba & Sprague, 2008).

Just DisciplineWhen thinking about school safety, it is also important to note that students with disabilities, and particularly students with disabilities of color, are disciplined at much higher rates for the same behavior as their non-disabled peers. This disproportionate impact of school discipline on students with disabilities is a critical issue for disability advocates across the state. See the 40- page report, Just Discipline and the School to Prison Pipeline in Pittsburgh.

Contact the PEAL Center if you have questions or concerns about disciplinary actions of schools for students with disabilities.

Thank you to our partners from Education Law Center PA for sharing resources for this article. 
Read the full Fall/Winter 2018 Newsletter here.

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