SPECIAL EDUCATION LAW
Behavior and Discipline
Public school students who are accused of violating a school rule or policy can face a number of different disciplinary actions in Texas. These actions often vary according to the school, the district, or the specific accusation.
These disciplinary processes should always share two important characteristics, however:
- Each school’s discipline policy and student code of conduct should be publicly available to parents or guardians. If these materials are not already published on your district’s website, you can contact the central office and request them.
- When facing more serious forms of disciplinary action, such as expulsion from school or placement in an alternative school program, students have the right to receive an explanation for the punishment. They are also entitled to an opportunity to share their side of the story. This is known as due process of law.
Considerations for Students with Special Needs
Students with disabilities may qualify for special considerations or modifications to their behavior plan, depending on their individual needs and abilities. They may also be entitled to additional protections under Texas special education law when certain disciplinary actions have been brought against them.
A student’s IEP or 504 plan should always include any necessary behavioral accommodations. Circumstances can change, though, and it’s important to be aware of your child’s rights in case a situation arises that you could not have prepared for or expected based on the information you had at the time.
Discrimination at School
Every federally-funded school district or educational institution in the country must adhere to Title IX laws, which prohibit discrimination on the basis of sex, race or national origin, disability, or age. School discrimination is a particular concern within the area of special education law because TItle IX directly addresses protections for students with special needs.
Review process for school discrimination complaints
In Texas, most school discrimination complaints are first reviewed at the district level. Each school district will investigate the complaint, usually with the oversight of a Title IX compliance officer, and propose options to resolve the issue if the complaint is determined to be valid.
If the district’s response seems unsatisfactory, the person filing the complaint may choose to bring it to the state level. The Texas Education Agency (TEA) will then implement their own review process, and can also offer some additional assistance to those who provide written evidence to document that they followed all the proper procedures at the district level.
Taking discrimination complaints to the federal level
A complaint does not have to be filed at the state level before it can be escalated to the federal level. You have a right to file a complaint with the Office of Civil Rights (OCR) and request a federal investigation if:
- You are not satisfied with the resolution offered at the district level; or
- You believe a school discrimination complaint demands a more thorough review than the district and/or state was able to conduct.
Sexual Harassment at School
Because sexual harassment is considered to be a form of gender discrimination, Title IX also applies to any such incident between students in K-12 public schools. Unlike other forms of discrimination covered by Title IX, however, there are very limited avenues to successful resolution of sexual harassment claims–and even those often prove difficult to navigate.
What qualifies as sexual harassment in K-12 schools?
The definition of student-to-student sexual harassment is relatively narrow, and does not always distinguish between incidents where the victim is a minor or is significantly younger than the perpetrator. There are also a lot of potential pitfalls within the reporting or investigation process that can cause even the most serious sexual harassment allegations to be overlooked or dismissed.
An interaction between students must meet the following requirements to satisfy the definition of sexual harassment, according to the Department of Education:
- The incident(s) must take place on school property or while students are taking part in an activity where the school exercises “substantial control” over the environment;
- Either the claim involves clear examples of a) sexual assault or violence, b) stalking, or c) unwelcome sexual advances or coercion; OR
- The level of harassment is severe enough to cause demonstrated harm to a student (for example, the harassment negatively affects a student’s grades, interferes with a student’s ability to attend school, or prevents a student from participating in school activities).
Reporting Sexual Harassment Claims
Not all school employees are required to report claims of sexual harassment, even if they directly witness an incident. The best way to prevent a school-based sexual harassment claim from slipping through the cracks is to disclose the issue to teachers and/or coaches who are employed full-time by the school district, since their position legally obligates them to report any such claims to the appropriate administrators or agencies.
If you’re the parent or guardian of a Texas student who may have been the target of sexual harassment at school, an experienced attorney can provide the right help to ensure that your child isn’t further victimized by a confusing or mismanaged system
IEP/ARD/Section 504 Meetings
Both the Individuals with Disabilities Education Act (IDEA) and the Americans with Disabilities Act (ADA) allow students to receive specific educational services and accommodations, depending on their particular diagnosis and level of need.
What is an ARD meeting?
An Admission, Review, and Dismissal (ARD) meeting is a partnership between parents, educators, and other professionals that is designed to identify students who are eligible for special education services. When a student is identified as qualified for special education according to IDEA, the ARD committee is tasked with determining which services the child should receive and how they should be administered. After that, the members will meet annually to review the continued necessity of the plan and decide if those services are still appropriate.
What is an IEP?
The ARD is the first step in creating an Individualized Education Plan (IEP). As outlined by the Individuals with Disabilities Education Act (IDEA), the goal of an IEP is to provide an equitable public education for students who have disabilities that can significantly affect their ability to succeed in a typical academic setting. If a student is identified as one who qualifies for an IEP, that child may receive specialized instruction or classroom accommodations, modified behavioral plans, or additional therapy and counseling services that are not strictly limited to academic performance.
The Texas Education Agency provides facilitators who can help guide the process of creating or updating an IEP, which can also prevent misunderstandings and disagreements between parents and educators regarding the provisions of the IEP. The ARD committee will meet annually to review the IEP, and students who have an IEP will be re-evaluated at least every three years to determine whether their educational needs have changed.
What is a 504 Plan?
504 Plans are a provision of the ADA, and cover students who are diagnosed with physical or emotional disabilities that can lead to academic impairment. A 504 Accommodation Plan ensures that these students can receive appropriate accommodations that will give them the opportunity to achieve an optimal level of academic functioning. Some of these accommodations may include small group activities, extended time for testing, or modifications to assignments.
Parents should note that, while these students are legally entitled to receive many specialized accommodations according to their individual needs, 504 Plans do not allow for the administration of in-school services such as physical therapy, occupational therapy, or speech therapy.
Due Process Hearings
Texas law considers most of the disciplinary actions commonly used by public schools too inconsequential to be challenged or overturned. Students who are facing expulsion or assignment to an alternative school through a Disciplinary Alternative Education Program (DAEP), however, are entitled to due process of law regardless of the individual circumstances surrounding the disciplinary action.
Assignment to a Disciplinary Alternative Education Program
A conference must be scheduled within 3 class days of the decision to assign a student to a DAEP placement. Ideally, this conference allows the principal to explain the reasoning behind the disciplinary action, and students and/or their parents to share their side of the story. Parents or guardians must be provided with written notice regarding this conference so that they have the opportunity to attend, but neither they nor the student are guaranteed the right to be present at a DAEP conference. If they choose not to attend, it will proceed without them.
When any school begins the process to expel a student, due process requires the administrators involved to conduct a pre-expulsion hearing that includes the student’s parents or guardians. Written notice of the date, time, and location of the hearing must be supplied to the parents and the student. They are also entitled to introduce witnesses and evidence at the hearing to support the student’s version of events, and have the right to hire an attorney to represent their child at the hearing.
State and Federal Education Complaints
If parents or guardians believe that they have evidence of legal violations that have occurred in Texas public schools, not all of these can be investigated at the state level. Violations of special education law, including those rights and procedures outlined by the Individuals with Disabilities Education Act (IDEA), fall within the jurisdiction of the Texas Education Agency (TEA). The TEA has the authority to address these issues independent of federal involvement.
The TEA does not have jurisdiction over the following complaints against any Texas public school district or entity:
- Charges of fraud, waste, or abuse;
- Public information request violations; or
- Discrimination complaints.
These complaints cannot be filed directly with the TEA, but must be directed to the appropriate federal agency. The TEA will provide referral information to parents in order to help them ensure that their complaint is received by either the State Auditor’s Office, the Office of the Attorney General, or the Office of Civil Rights, depending on the nature of the violation.
Special Education Complaints
If parents have concerns about potential violations of special education law, those complaints should be reported directly to the Texas Education Agency. The TEA will investigate the complaint and offer options to resolve the conflict in a manner that protects the rights and dignity of special education.Sometimes students are affected by administrative decisions that their parents find personally objectionable, but do not represent an actual violation of school or special education law. In these situations, the TEA has no authority to intervene. Parents who wish to appeal such decisions may be best served by filing a local grievance against the school district.
The Texas Education Agency provides multiple processes for dispute resolution concerning special education law. Online learning modules are also available to help parents, administrators, and educators become better informed on their rights and responsibilities and learn strategies to work together more effectively.
The primary goal of facilitation is to help structure a student’s Individualized Education Plan (IEP) in such a way that it prevents conflicts from arising in the first place. TEA provides trained facilitators to serve as neutral third parties who enable effective communication and collaboration between parents and educators so that they can create an actionable, practical plan to meet the needs of students with disabilities.
Mediation is designed to provide independent guidance and dispute resolution options when both parties disagree on the specifics of a student’s educational program, but are willing to discuss the issues and work toward a mutually acceptable solution. TEA offers mediation services upon request, but participation is voluntary–meaning everyone involved must agree to engage before the process can move forward.
Due Process Hearings
In special education law, due process hearings are more formal and regulated than mediation. If mediation is similar to assisted negotiation, then due process hearings are best compared to a court proceeding. If parents and administrators have very different ideas about how to determine and provide for a student’s educational needs according to the law, or if other dispute resolution procedures have not been successful, then either party can request a due process hearing. Due process hearings are conducted by an independent hearing officer, who will review the statements and evidence presented in order to determine how relief should be awarded. The hearing officer must issue a formal decision within 45 days.
When You Might Need an Attorney
There are several good reasons to consider speaking with an attorney when the quality of your child’s education may be in question:
- Students or parents may be able to appeal an administrator’s decision in certain cases involving DAEP placements.
- If the student is assigned to a long-term DAEP placement, they have additional rights and are entitled to have their case status and academic progress reviewed every 120 days.
- Parents and students who attend DAEP conferences or expulsion hearings are not obligated to present evidence or discuss the incident that resulted in the disciplinary action at all. In fact, it may be in their best interests not to speak on the incident if a student is also facing related criminal charges.
- Students with disabilities may be entitled to further protections under state and federal law, including modified disciplinary actions.
- Conferences and hearings are not the only options for parents or guardians who want their voices to be heard. There are often other channels through which they can seek to have their concerns addressed by the school or district.
An attorney who is experienced in Texas Education Law can help to ensure the best possible outcome by offering information specific to your child’s case, providing advice on how to protect your child’s rights, and guiding you through complex processes such as filing a grievance or challenging a disciplinary decision.