Across the nation, school disciplinary policies have become increasingly harsh since the 1990s,
creating a pipeline pushing students out of schools.
Once this diversion occurs, students are vastly more likely to interact with the juvenile justice system.
In turn, contact with the juvenile justice system is associated with a host of negative effects,
and likely increases the chances of incarceration as an adult.
This pipeline from schools to incarcerative settings particularly affects poor, minority, and disabled students.
Although the school-to-prison pipeline has received increasing attention from parents, advocates, and academics, reforms remain elusive. State and federal laws and policies prioritize strict disciplinary measures, despite some constitutional protections checking school discipline,
and each new highly publicized school shooting drives more money into security measures that often end up increasing diversionary punishments for students.
This Note proposes using the procedural protections of the Americans with Disabilities Act (ADA)
to restrict the diversion of disabled students from schools through suspensions and expulsions. The ADA requires certain entities, including public schools, to offer reasonable accommodations to individuals with disabilities.
The theory of the claim is that certain students with disabilities require accommodations in disciplinary proceedings to participate meaningfully in those hearings. For a certain class of students whose disabilities limit their ability to fully participate in a potentially contentious disciplinary hearing, this Note argues that the proper accommodation is some kind of representation in the disciplinary hearing. The outcome of this claim depends both on whether courts and administrators will recognize a role for ADA protections in evaluating the appropriateness of diversionary school discipline for disabled youth and on the broader concern that such a solution would overly judicialize schools in service of a partial remedy that leaves nondisabled juveniles behind.
Part I describes the school-to-prison pipeline and the way it pushes students out of classrooms and into the juvenile and criminal justice systems. Section I.A presents social science research on discipline and student outcomes. Section I.B examines the disproportionate effect of school discipline on minority
students with disabilities. Section II.A then explains how special education law fails to diminish diversion for disabled youth. In section II.B, this Note considers whether the ADA might be applied to create more robust protections. After describing the development of ADA Title II jurisprudence under the ADA Amendments Act (ADAAA),
section III.A lays out the elements of a prima facie ADA claim, and section III.B applies the ADA claim to school disciplinary hearings. Part IV then examines two drawbacks of this approach: the limited protected class and the danger of overly proceduralizing schools.
I. An Overview of Current Inequities in School Discipline
Several structural factors contribute to the diversion of juveniles from schools to the juvenile justice system. A student’s race, class, and disability can predict whether that student is likely to be suspended or expelled, which suggests that some disciplinary infractions are not merited by a student’s conduct. In order to demonstrate this disproportionality, section I.A describes the school-to-prison pipeline; section I.B presents social science research regarding the prevalence of minority, poor, and disabled youth among disciplined students. The fact that certain kinds of disability are among those factors that increase the likelihood of discipline further indicates that special education regulations, which are supposed to protect those students from unfair singling out, are failing. Throughout this Note, “school discipline” refers to both expulsion and suspension; these two types of school discipline are the focus of the proposed remedy, discussed in Part III.
A. Plumbing the Depths of the School-to-Prison Pipeline
The school-to-prison pipeline generally refers to the set of policies and practices that divert students from schools into the juvenile justice system and, eventually, prison.
There are a variety of documented pipeline effects, often interconnected with issues of race, poverty, and disability.
This section sketches the contours of the pipeline, drawing on social science research in section I.A to show the ways school disciplinary policies funnel students out of schools into both the juvenile and adult justice systems. Section I.B then focuses the inquiry on the disproportionate discipline received by poor, minority, and especially disabled students.
Social scientists and others who study school discipline refer to the diversion of students out of school and into the justice system as a “pipeline,” to capture the way in which students are systematically diverted out of classrooms.
This Note does not dispute that student discipline can be warranted and serve educational ends; indeed, it often does. Instead, this Note focuses on the disproportionate effect of school discipline on poor,
and disabled students. The pattern of discipline that emerges from the qualitative and quantitative research summarized in this section suggests perceptions of “dangerousness” or otherness drive some disciplinary decisions, rather than objective disciplinary infractions.
It is this kind of discipline, which does not further educational goals,
that this Note seeks to challenge, insofar as it is applied to disabled students.
There is a significant relationship between harsh discretionary school discipline and zero-tolerance mandatory discipline.
Highly publicized school shootings in the 1990s created social pressure in favor of stricter penalties for students who brought guns to school.
As a result, in 1994, the federal government mandated zero tolerance in the context of guns on school campuses through the federal statute Gun Free Schools Act (GFSA).
This policy requires school districts to expel for a minimum of one year any student who brings a gun to or possesses a gun at a school.
However, the GFSA left the details up to the states—the entirety of the federally required policy is one paragraph.
As a result, there is substantial variation between states of offenses that merit automatic expulsion.
In implementing the GFSA, some state legislatures have swept other actions into the zero-tolerance net, prompting expulsions of children for consuming Tylenol or prescribed birth control medication within schools because the medications fell within the definition of drugs, triggering mandatory statutory discipline.
Over the same time period, this “transfer of disciplinary discretion from teachers and school authorities to disciplinary codes that stipulate exclusionary punishments has contributed to a second trend of more frequent suspensions and expulsions” for offenses not included in zero-tolerance legislation.
Over the past twenty years, states have also reacted to episodes of school violence by sharply increasing surveillance and security in schools.
The federal government additionally began funding wide-ranging, stringent security measures in the 1990s that continue to go far beyond restrictions on guns and other weapons.
One example of this expansion of security measures is the use of police officers in schools. School policing is currently the subject of litigation in New York City,
and it is a relatively widespread practice nationwide.
In at least one school system in Mississippi, before the DOJ sued the district, teachers regularly called the police on students for a variety of low-level disciplinary offenses including “disrespect” and “profanity.”
When police officers are employed in schools, the connection between school discipline and juvenile courts becomes tighter again: If a police officer arrests a student in school, the diversion from educational setting to juvenile justice setting is immediate.
To be sure, guns are dangerous objects, and students who bring them to school present a significant danger that may justify their diversion out of schools. As mentioned above, it is not the purpose of this Note to challenge the appropriateness of all instances of school discipline.
However, one effect of the increased focus on school discipline, and of the increased employment of specialized, full-time school security officers, is that students increasingly face suspension for relatively minor offenses, including “insubordination.”
As noted above, the creation of zero-tolerance gun laws coincided with a large rise in funding for security measures that have also increased discretionary discipline.
And it is through discretionary discipline that the significant racial disparities in discipline become striking.
Zero tolerance, surveillance, and security created the mechanism for schools to suspend or expel students who misbehave in any one of a huge number of ways.
The pipeline mechanism kicks in as soon as students are first suspended from school.
Out-of-school suspensions or expulsions correlate with an increased risk of arrest and time in juvenile detention and of failure to graduate high school;
each of these in turn correlates with an increased risk of arrest and detention as an adult.
Aside from the escalation of subsequent school discipline and its mutation into criminal justice referrals, missing more than a handful of school days per year also hurts a student’s school performance.
Chronically missing school correlates with a higher risk of failing classes, which in turn correlates with a higher risk of dropping out.
Dropping out of high school again correlates with arrest as an adult.
Before a student may be removed from school, however, the school must inform the student of the alleged misbehavior and give the student a chance to respond at a hearing.
This Note proposes using the ADA to seek representation at that hearing, before a student has been removed from school for the first time. Providing students with disabilities representatives during these hearings would increase the chance that students whose disabilities prevent them from articulating their version of events clearly receive the help of an advocate capable of doing so. The goal of this intervention is to reduce the disproportionate number of students with disabilities being disciplined for reasons other than their behavior. With the general pipeline framework of school discipline in place, the next section turns to the pipeline’s disproportionate effect on already-disadvantaged students.
B. Discipline and Otherness: Examining the Discipline’s Disproportionate Effects on Disadvantaged Populations
The use of stricter security measures outlined in the previous section correlates with race, poverty, and disability
of students. A 2013 empirical study of nearly 2,000 American schools found that, even after controlling for “school crime, neighborhood crime, and school disorder,” the number of minority or poor students in a given school is a “strong predictor of whether the school uses a combination of strict security measures.”
Race and poverty thus appear more predictive of discipline than the problems that discipline is supposed to solve. This correlation suggests that current policies discipline students for factors other than their disruption to the educational environment—precisely the kind of noneducational discipline this Note addresses.
Disparities generated by harsh school discipline policies extend to “students with disabilities [who] are suspended about twice as often as their non-disabled peers.”
Even more starkly, researchers estimate one in four black students with disabilities was suspended at least once in the 2009–2010 school year, compared to a suspension rate of twelve percent for white students with disabilities.
This racial effect among students with disabilities was in addition to the finding that students with disabilities are suspended about twice as often as students without disabilities, compounding the disproportionate discipline.
These disparities continue into the juvenile justice system, where empirical studies have consistently found disability prevalence rates many times greater than in school populations.
Evidently recognizing the problem of the over-disciplining of disabled students, the most recent reenactment of the GFSA from 2002
contains a cryptic “special rule”: “The provisions of [the GFSA] shall be construed in a manner consistent with the Individuals with Disabilities Education Act.”
In practice, this provision allows the “chief administrative officer” of the “local education agency” (that is, the school district superintendent) to modify student suspensions on a case-by-case basis, in writing, in order to prevent the GFSA from contravening the goal embodied in the federal special education statutes: supporting students with disabilities in schools with services appropriately tailored to their disabilities.
It is unclear how, or how often, superintendents make these alterations, and poor recordkeeping makes systematic evaluation impossible.
Since this exception dates from 2002, the lack of data on whether it has reduced the disproportion of disabled youth being disciplined is troubling.
The correlation between the disadvantage of diversionary school discipline and students already disadvantaged academically by conditions beyond their control such as race and poverty
is especially great and especially troubling in the case of students with disabilities. As a result, this Note focuses on that category of students. A further reason for doing so is to identify a special set of potentially useful protections applying in school suspension and expulsion hearings for students with disabilities that could prevent school infractions from leading to diversion and entanglement in the juvenile court system.
Aggravating the disciplinary plight of black students identified as disabled is a riddle: Why are black students simultaneously overidentified as being disabled
and also oversuspended?
This is a riddle because, theoretically, identification as disabled entitles students to heightened procedural protections extended to special education students before they may be removed.
Still, a study of Delaware public schools found “students who are poor, non-white, male and disabled were more likely to be suspended for over 10 days than other disabled students.”
In a way, this riddle is not such a riddle at all: The exercise of discretion by school officials results in minority overrepresentation in both disability and discipline.
For instance, “Black students are suspended more often for behaviors that involve subjective or discretionary judgments by school authority figures, such as disrespect, excessive noise and threatening behavior.”
Similarly, the special education literature distinguishes between hard and soft disabilities.
Hard disabilities are conditions for which there are objective diagnostic tests, while soft disabilities are more subjectively determined—the difference between diagnosing a child with blindness, for instance, and with emotional disturbance.
Tellingly, black students are significantly overrepresented in the “soft” categories.
Further, black students are placed in more restrictive educational settings than white students diagnosed with the same disability.
Although rates of restrictive placements for disabled minority students appear greater than disabled white students at the national level, the restrictive placements may actually be even more severe in large, urban school districts serving predominantly minority and low-income populations.
The phenomena just described reveal the problem at the heart of the school-to-prison pipeline: It is a result of wide discretion by school staff that is all too easy to abuse on the basis of stereotypes affecting both disabled and black youth, and especially disabled black youth.
The daily decisions of teachers and other school employees operate to funnel black children both into special education and out of schools. The fact that this is observable nationally, even when controlling for other factors like poverty,
reinforces the structural racism analysis of minority overrepresentation in juvenile justice,
and extends it to the special education system, where racial disparities have long been prevalent.
These data present a disturbing picture of the overrepresentation of minority youth, and particularly of black youth, in special education and in disciplinary diversions out of schools and into the criminal justice system. This Note focuses particularly on suspensions and expulsions of students with disabilities for two reasons. First, racial disparities are just as pronounced in the discipline received by students with disabilities as they are for students without disabilities.
This disparity is highly problematic, because it appears that discipline is being imposed without valid educational rationales—the further away from the student bringing a gun to school, where dangerousness is most clear, the greater the suggestion that discretionary discipline is being applied without regard to desert.
Second, this Note focuses on students with disabilities because this population is most likely to have difficulty communicating their side of the story, especially where a student’s disability affects the student’s ability to behave in high-pressure suspension or expulsion hearings where an adult decisionmaker confronts the student with accusations of misconduct.
II. Current Statutory Frameworks: IDEA and ADA
This Part turns from the problem of disproportionately disciplined students and the extremely negative effects such discipline can have on student outcomes to two statutes that operate in the background of school discipline: the Individuals with Disabilities Education Act (IDEA) and the ADA. The IDEA, the federal special education law, seems like an obvious tool to use to stanch the flow of students with disabilities out of school. The IDEA has procedural protections that must be met before a student with a disability can be removed from school. However, the protection only kicks in after a student has been adjudicated in violation of school rules and so is inadequate to prevent potentially significant issues in the underlying adjudication. For that reason, this Part turns to the ADA, which can potentially operate in disciplinary adjudications, before students are found eligible for removal from school.
A. The Wrong IDEA: Why Special Education Law Is Inadequate to Solve These Problems
For many years, federal law has extended protections to students receiving special education services in public schools. It could seem, therefore, that this Note’s solution is unnecessary—aren’t these students already protected? The answer is unfortunately no: Special education law protections are inadequate in the disciplinary context because they come too late, kicking in only after the school makes a finding that the covered student misbehaved. This section identifies such inadequacies and other limitations of the IDEA that prevent that statute from significantly disrupting the pipeline of disabled students from schools into the juvenile justice system.
The IDEA is the latest iteration of the federal effort to end the stigmatization and exclusion of students with disabilities from public schools, an effort that began in 1975.
The statute guarantees and funds services for students with disabilities; perhaps the two key requirements are a free and appropriate public education (FAPE) to each student with disabilities in the least restrictive environment possible.
The IDEA also imposes procedural hurdles before a student with disabilities may be removed from school. These removal protections apply to “a child with a disability.”
To receive that designation, the student must be found (1) to qualify for one of IDEA’s ten categories of educational disabilities
and (2) to need “special education and related services.”
Although one of the ten disability categories is “emotional disturbance,” which one might expect to correlate with disciplinary issues,
the IDEA regulation that defines that disability provides without further elaboration that emotional disturbance “does not apply to children who are socially maladjusted.”
Because this limitation lacks any basis in scientific understandings of disability, it likely excludes students who ought to be recognized as having disabilities from the IDEA’s procedural protections against removal.
The IDEA extends procedural safeguards to children “with a disability” before these students may be removed from schools for a period of more than ten days. In theory, the protections could provide a procedural brake on removing children identified as disabled from schools.
For the following four reasons, however, the effect of these procedural protections is slim.
First, the IDEA’s procedural protections apply only to students who already are receiving special education services or students about whom the school has received notice of potential eligibility.
This limitation withholds protections from students whose disabilities are manifested for the first time by disruptive behavior that exposes them immediately to harsh discipline.
Because wealthier parents are more likely to request and receive special education evaluations for their children than poorer parents, this gap particularly harms children from low-income backgrounds.
Aggravating the problem is the second factor, which one commentator has called the IDEA eligibility “mess.”
As a result of unclear definitions of disability and efforts by the 2004 IDEA amendments to support a wider pool of students than just those designated as disabled, the reach of the IDEA’s procedural protections for students who have been so designated has been diminished.
In other words, by allowing schools to support more students than those formally designated as disabled, the newest version of the IDEA properly focuses on educational needs and outcomes rather than on labels of disability.
However, since procedural removal protections only extend to those students who already have disability designations,
the reduced pressure on labeling has the unfortunate side effect of denying the protections to students who might need them.
Third, and perhaps most importantly, the IDEA’s procedural protections for students with disabilities apply only to suspensions longer than ten days.
This limitation hamstrings the usefulness of the IDEA, because school discipline policies are often progressive
and early intervention is often key to diverting students before escalating sanctions divert them into the criminal justice system.
Finally, once a student is eligible for IDEA removal protections, any potential remedy is limited. The student has already been adjudicated as having behaved in a way that deserves punishment. All the IDEA entitles a student to is a “manifestation determination” by a school and parent team as to whether the behavior triggering the discipline “was caused by, or had a direct and substantial relationship to, the child’s disability.”
However, the manifestation determination is only triggered after the student has been given a suspension of more than ten days; by this point, the student can no longer contest the underlying facts; the adjudication itself is over.
If the determination team finds the student’s disability caused the misbehavior, the student may not be removed,
and his or her individual education program—the document specifying the services the IDEA-eligible student is to receive from the school—must be revised to include a “behavioral intervention plan.”
Congress further limited the reach of the manifestation determination in the 2004 IDEA reauthorization, making it harder to prove the causal relationship between the behavior creating the disciplinary problem and the student’s disability.
Among the advocacy community, there is a belief that the manifestation determination has been watered down.
Fundamentally, the IDEA has failed and is continuing to fail to protect students with disabilities, especially poor, minority disabled students, from avoiding punitive school discipline policies. It has not shielded students with disabilities from removal from school. And, even when schools respect IDEA protections, the procedures are only triggered after a student has been adjudicated in violation of a school’s policies.
In addition to the IDEA’s statutory protections for students with disabilities, constitutional law operates in the background of school discipline. However, it is unlikely to be an effective tool in preventing the diversion of students—with or without disabilities—out of schools. Constitutional due process attaches to suspension hearings
but is satisfied by informal hearings.
The informality of the hearings means that counsel is not provided, nor is a student entitled to procure counsel: The hearing happens in the moment.
This immediacy and informality redounds to the detriment of students whose disabilities impede their ability to participate in the quick verbal exchange envisaged by the Court—the same class of students already disadvantaged by the disproportionate discipline to which they are exposed.
Further, the immediacy of the constitutionally sufficient hearing suggests that only the student and the school decisionmaker are involved. The fact that this disadvantage is acute for students with disabilities, and especially for students of color with disabilities, is why this Note focuses on a remedy for this class in particular. In the interest of better protecting this student population from noneducational discipline, this Note proposes using the ADA to obtain some kind of advocate for students with disabilities in these hearings,
a right not available under the IDEA.
B. The ADA and Its Amendments: Toward a Prima Facie Case
Congress enacted the ADA in 1990 “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”
The ADA was enacted seventeen years after the Rehabilitation Act of 1973,
which provides similar protections,
but which applies only to “the federal government, federal grantees and federal contractors, in certain situations.”
In addition, the Rehabilitation Act has only limited enforcement mechanisms.
The ADA “specifically prohibit[s] discrimination in the contexts of employment, public services, and public accommodations operated by private entities.”
This Note focuses on Title II of the Act, which applies to public services, such as public schools.
Despite the ADA’s intended breadth, the Supreme Court initially interpreted the statute’s definition of “disability” quite restrictively, limiting the ADA’s coverage to individuals with noncorrectable disabilities that restrict the ability to perform tasks of central importance to most people’s lives.
In response, Congress amended the ADA by passing the ADAAA in 2008,
expressly overruling the decisions that had restricted the ability of plaintiffs to prevail on ADA claims
dramatically expanding the kinds of disabilities that give rise to ADA claims,
and removing much of the onus of proving substantial disability from the plaintiff.
Left unclear, however, was whether the Supreme Court would rely on some other provision of the ADA to fulfill the “gatekeeping” function that the ADAAA had seemed to diminish.
Under Title II of the ADA, “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity.”
It further provides that “the Attorney General shall promulgate regulations in an accessible format that implement this part.”
The effect of the new ADAAA standards is unclear because the amendments have been interpreted as nonretroactive, and thus as applying only to conduct after the amendments’ January 1, 2009 effective date,
and because the DOJ has yet to update the Title II implementing regulations based on the ADAAA.
These new regulations are unlikely to change much about ADA litigation, as they do little more than incorporate the findings and purpose of the ADAAA.
Because of this continuity, pre-ADAAA case law can provide significant guidance.
To establish a prima facie case of discrimination under Title II of the ADA, the plaintiff must first show that he or she is a “qualified individual with a disability.”
This, in turn, is defined in the existing regulations as “an individual with a disability who, with or without reasonable modifications . . . , meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.”
The “eligibility” requirement, which will not be difficult to prove, is addressed first.
Next, the “disability” element is examined.
Although this element was formerly the gatekeeper for ADA claims, the ADAAA almost certainly changed this.
Last to be discussed is the accommodation–fundamental alteration dyad, which will likely make or break the proposed claim in the post-ADAAA era.
1. Program Eligibility. — An individual establishes eligibility under the ADA if he or she meets the requirements to participate in a government program “with or without reasonable modifications.”
In Pennsylvania Department of Corrections v. Yeskey, the Supreme Court concluded that this provision applies to government programs regardless of whether participation is voluntary.
In Yeskey, a disabled prisoner claimed that the state violated the ADA by failing to make the reasonable accommodations necessary to enable him to participate in a boot camp program in the prison.
Although participation in the boot camp program was voluntary, the Court held that inmates would be covered under the ADA regardless “because the words [of the statute] do not connote voluntariness.”
Under this language, mandatory education laws make any child within the requisite age range presumptively eligible for school services through the ADA, notwithstanding the mandatory character of school attendance and suspension hearings.
2. Defining Disability. — After demonstrating eligibility, an individual must establish that he or she has “a disability” sufficient to qualify for the ADA’s protection. There are three ways to do this: by proving that he or she has “a physical or mental impairment that substantially limits one or more major life activities,”
by relying on “a record of such an impairment,”
or by proving that he or she is “regarded as having such an impairment” by virtue of “be[ing] subjected to [discrimination] because of an actual or perceived physical or mental impairment.”
The ADAAA greatly broadened the scope of both the “substantially limits” and “major life activity” statutory thresholds,
in contrast to the IDEA’s more limited eligibility restrictions discussed above.
Congress expanded the definition of “major life activities” to include such activities as “speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”
Additionally, Congress expressly incorporated a finding that the Supreme Court had previously defined the “substantially limits” language too narrowly.
Finally, the ADAAA specifies that disability “determination[s] . . . shall be made without regard to the ameliorative effects of mitigating measures”
such as “medications,”
“reasonable accommodations or auxiliary aids or services,”
and “learned behavioral or adaptive neurological modifications.”
Together, these changes neutralized what had been the main gatekeeper under ADA case law prior to the ADAAA,
when defendants typically prevailed by showing that the plaintiff did not qualify as an individual with a disability.
3. Accommodation and Its Limits. — Once an individual establishes disability and program eligibility, the final component of an ADA claim is proving that a government entity deprived the plaintiff of access to the relevant government program by denying the plaintiff a “reasonable modification” of the program—a modification that would not have “fundamentally alter[ed] the nature” of the program.
Striking this balance between what is reasonable for an individual with disabilities and what is fundamental to a given program will likely become the crux of ADA adjudication in the wake of the ADAAA.
Unfortunately, as a result of the newness and nonretroactivity of the ADAAA,
as well as the focus of pre-ADAAA law on the disability threshold, which the ADAAA lowered,
the case law interpreting the reasonable accommodation standard is relatively sparse. Guidance is all the sparser because the majority of both pre- and post-ADAAA litigation has been brought under Titles I and III of the ADA, covering private entities and public accommodations, respectively, which word their analogous standards differently from Title II’s wording.
In addition to relying on elaborations of these standards in the statute, academic literature, and circuit and Supreme Court case law, this Note pays particular attention to a series of three district court orders from the Franco-Gonzales v. Holder litigation. In that case, a class of individuals with mental disabilities successfully claimed that the Board of Immigration Appeals (BIA) violated the Rehabilitation Act by denying them representation in deportation proceedings.
The Franco-Gonzales claim thus mirrors the claim proposed here that schools violate the ADA by denying representation to students with disabilities facing disciplinary hearings.
i. The Right: Reasonable Accommodation. — When plaintiffs bring an ADA claim, they must allege discrimination by reason of disability. One of the “[g]eneral prohibitions against discrimination” by public entities is the requirement to “make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program or activity.”
Regulations define discrimination on the basis of disability in various ways. Most relevant to school disciplinary hearings is the idea that “[a] public entity, in providing any . . . service may not . . . on the basis of disability . . . [a]fford a qualified individual with a disability an opportunity to participate in . . . the . . . service that is not equal to that afforded others.”
The baseline thus is access to services: Schools must provide students with disabilities with an opportunity to participate in suspension and other disciplinary hearings.
In the wake of the ADAAA, the reasonable accommodation analysis presents a statutory concept “as slippery as . . . disability itself,” and courts have interpreted the meaning of accommodation inconsistently.
Still, it is clear that the standard focuses on the “meaningful access to which [individuals with disabilities] are entitled,”
rather than on comparing the individuals with disabilities to “similarly situated individuals given preferential treatment.”
Thus, claimants need not limit their contention to the level of access enjoyed by a nondisabled class; they can succeed if they show that, without the accommodation requested, they are unable to meaningfully access the government service to which they are entitled.
In fact, even modifications that would provide the class of individuals with disabilities an advantage compared to individuals without disabilities are potentially available under the ADA; as the Supreme Court has noted, “[P]references will sometimes prove necessary to achieve the [ADA’s] basic equal opportunity goal.”
The precise definition of “meaningful access” is elusive, in line with the ADA’s preference for individualized, fact-sensitive determinations, rather than uniform rules.
Still, the text of the ADA’s implementing regulations gives some insight. The regulations focus on “obtain[ing] the same result” by prohibiting programs that give individuals with disabilities “an opportunity to participate in . . . service[s] that is not equal to that afforded others.”
The notion of what it means to participate fully in a school suspension hearing is essential to the reasonable accommodation inquiry and shall be addressed more fully below.
The Franco-Gonzales court’s treatment of these issues in the context of deportation hearings is instructive. In that litigation, plaintiffs were individuals with disabilities who sought representation in deportation proceedings before the BIA under the Rehabilitation Act.
Defendants claimed that the named plaintiff’s father could supply the requisite representation.
The court specifically rejected this argument, finding the lead plaintiff’s father lacked “adequate knowledge, information, and experience in immigration law and procedure to represent his son.”
Ultimately, the court concluded that the plaintiffs were entitled to nonfamilial representation at the government’s expense if they could not find a pro bono representative.
The court drew on a DOJ regulation’s definition of “accredited representative” in finding parental representation inadequate and further relied on it as a guideline for the separate “qualified representative” inquiry not defined in the regulations.
This relief was not necessarily a lawyer, but rather a “[q]ualified [r]epresentative,” defined as either an attorney, a law student or graduate “directly supervised by a retained attorney,” or an “accredited representative” as defined in DOJ immigration-court practice regulations.
This fulfilled plaintiffs’ request for a representative who would be:
[O]bligated to provide zealous representation[,] . . . subject to sanction . . . for ineffective assistance[,] . . . free of any conflicts of interest[,] . . . [and who would] have adequate knowledge and information to provide representation at least as competent as that provided by a detainee with ample time, motivation, and access to legal materials[,] . . . [and who would] maintain confidentiality.
ADA claims generally require individualized inquiry, and the treatment of the Franco-Gonzales plaintiffs’ claims follows this model.
However, the court later granted class certification to similarly situated individuals with disabilities subject to deportation proceedings
and granted relief to the entire class.
This is promising because it means that, even if individualized determinations of disability are necessary, class relief to all similarly situated students is possible, reducing the need to relitigate the issue.
ii. The Fit: Necessity. — The governing regulation limits required “modifications [to those that] are necessary to avoid discrimination on the basis of disability.”
Interpreting this “nexus requirement,”
the courts have required proof that the requested accommodation solves only the exclusion from the service that arises by reason of disability. In effect, the claimant must show that a program or service is inaccessible due to his or her disability and that the requested accommodation will eliminate that barrier. The Franco-Gonzales plaintiffs addressed this barrier by showing that the disabilities of each plaintiff prevented him or her from engaging in an immigration hearing; the plaintiff class was also limited to individuals whose disabilities would “render them incompetent to represent themselves in detention or removal proceedings.”
Thus, while any given plaintiff would have to show that he or she fit into this class, the class itself was defined in terms of the necessity of the accommodation.
iii. The Limit: Fundamental Alteration. — The duty to accommodate individuals with disabilities discussed above
is moderated by the “fundamental alteration” affirmative defense: If the public entity can prove the requested accommodation would require it to fundamentally alter the service, there is no duty to accommodate. Several circuits have held that fundamental alteration analysis takes budgetary concerns into account, but money alone cannot be determinative.
A plurality of the Supreme Court in Olmstead v. L.C. ex rel. Zimring took a similar approach, allowing public entities in addressing the “fundamental-alteration” issue “to show that, in the allocation of available resources, immediate relief for the plaintiffs would be inequitable.”
Because Justice Stevens rejected this analysis in a separate concurrence that was necessary to establish a majority for the result reached,
the plurality’s view does not have precedential force.
Still, lower courts have generally followed the Olmstead plurality in allowing budgetary constraints to play a role in the “fundamental-alteration” analysis while at the same time declining to let “vaguely-defined fiscal constraints” trump the ADA’s requirements.
States must prove fundamental alteration by focusing on the nature and purpose of the rule or practice being challenged and by arguing that the modification sought goes against this nature and purpose.
The Supreme Court’s only foray into fundamental alteration is PGA Tour, Inc. v. Martin, in which a professional golfer with a degenerative circulatory disorder sought to use a golf cart as his accommodation during the final round of a tournament to qualify for the PGA golf tournament.
Martin argued that he was entitled to use the golf cart as a reasonable accommodation, despite the fact that a rule for this tournament required participants to walk. In support of his argument, the ADA’s sponsors in Congress pointed out the “very few examples of the application of the fundamental alteration limitation” in the “[c]ongressional committee reports” indicated that “Congress intended the standard of altering the essential nature of an activity or service to be a stringent one.”
The Supreme Court ruled that fundamental alterations are those changes “inconsistent with the fundamental character” of the activity, and that walking during a tournament “is not an essential attribute of the game itself.”
Commentators have noted the fuzziness of this elucidation of the standard, citing the “[c]onfusion in Martin’s [w]ake” among lower courts.
Martin was decided in 2001, two years after Olmstead and seven years before the ADAAA.
Although the Martin standard seems to focus on the impact of the accommodation relative to the activity at issue, the Court’s holding in Olmstead allowed ADA claims to be brought that significantly alter residential treatment programs for individuals with disabilities.
Thus, large-scale, systemic reform through ADA litigation is not necessarily precluded due to the size of the change sought. Instead, the emphasis is on the characteristics of the program at issue.
Supporting this analysis is Franco-Gonzales, which ordered the BIA to provide plaintiffs with advocates in immigration hearings at government expense despite the lack of “a budget, or . . . any established structure” to provide representation.
In doing so, the court in Franco-Gonzales was emphatic that it was neither extending plaintiffs a new right nor expanding the scope of their existing rights by mandating representation.
The plaintiffs were not seeking the right to counsel in deportation proceedings. Rather, they sought an accommodation—representation—that would allow them to access their existing right to “meaningfully participate in their removal proceedings” by “examin[ing] the evidence” against them, “present[ing] evidence” on their own behalf, and “cross-examin[ing] witnesses” of the government, rights “beyond Plaintiffs’ reach as a result of their mental incompetency.”
While these formal trial rights do not extend to school discipline hearings, students unquestionably have the right to participate in these hearings,
opening the door to a claim parallel in many ways to that of Franco-Gonzales.
With this overview of ADA claims in place, the time is ripe to turn to the novel claim proposed by this Note.
III. Constructing an ADA Claim for Students with Disabilities Seeking Accommodation in Disciplinary Hearings
Under the ADA, students with disabilities may have a claim for representation during school suspension or expulsion hearings. This Part discusses disabled students’ ADA claim for a representative’s assistance in school suspension or expulsion hearings. Although the use of the ADA has been proposed as a stepping stone toward a general right to counsel in civil cases for all adults,
as well as in necessary accommodation claims for certain individuals in immigration and housing court,
the literature has not yet addressed representative-as-accommodation in the school discipline context.
As a final preliminary note, it is unclear whether administrative exhaustion—whereby a plaintiff is required to pursue nonjudicial remedies before turning to the courts—is a requirement before a student with a disability could sue his or her school under the ADA. IDEA suits have an exhaustion requirement;
section 504 and ADA suits do not.
Because section 504 contains a requirement to provide students with a free and appropriate public education similar to that assured by the IDEA, courts have had occasion in the education context to consider whether students bringing section 504 claims for relief that could, alternatively, be available under the IDEA must follow the latter’s exhaustion requirements.
A case for ADA accommodation in school discipline is likely to raise the same exhaustion question because the ADA’s accommodation requirement in the educational context looks very similar to IDEA’s requirements surrounding special education services. Plaintiffs would have to highlight the fact that the relief sought is accommodation in disciplinary proceedings, rather than procedures to assure an appropriate special education for the student.
Students might be successful in avoiding the exhaustion requirement by claiming that the accommodation sought—a representative for suspension hearings—is not available under the IDEA. However, it is unclear if this is actually true, much less whether a court would buy it. Therefore, plaintiffs should attempt exhaustion of IDEA remedies in circuits that require it, though plaintiffs could seek a preliminary injunction in the meantime.
The following four subsections explain the novel ADA claim for representation in school discipline hearings, suggesting how students would show that they are (A) qualified for school programs, (B) disabled, (C) in need of a reasonable accommodation in the form of a representative to accompany them in school discipline hearings, and (D) not seeking any fundamental alteration in the character of those hearings.
A. A Qualified Individual
Proving that the student is qualified to attend school should not present much difficulty because state compulsory education laws, as well as section 504 and the IDEA, make them eligible for public schooling;
as noted above, even involuntary participation in a school disciplinary hearing makes students eligible for all of the protections that such hearings are designed to afford.
Indeed, it is hard to see how a school district could argue that it has the authority to suspend or expel a student without acknowledging the student’s right to school services.
B. With a Disability
School districts receiving IDEA funds have a duty to identify students with disabilities.
Every student covered by the IDEA will likely be covered by the ADA as well, in addition to an indefinite class of students whose disabilities do not require special education services or do not fit into the IDEA’s categories.
Plaintiffs covered by both the IDEA and the ADA must be identified as disabled by schools, obviating their need for expert testimony to this effect. However, as alluded to above, the ADA’s definition of disability is broader than the IDEA’s.
Thus, students covered by the ADA’s more expansive definition of disability—but who are not within the IDEA’s definition—will likely still need to present expert testimony showing they are impaired in a major life activity. Although expert testimony often presents a significant financial barrier to parents—on top of the already substantial barrier of litigation
—the burden of actually demonstrating disability may not be as difficult under the ADAAA, which specifies that courts are not to push plaintiffs very hard on the proof-of-disability prong of their claim.
Once there are plaintiffs willing to bring this claim who are disabled, they could seek class certification to cover all students with disabilities who will become subject to school discipline proceedings, shifting the burden on later students from litigating to simply proving their disability at the time of the alleged infraction.
In any event, because the ADAAA greatly moderated the plaintiffs’ burden of proving a substantial limitation, brief testimony or even affidavits addressing the limitations caused by the student’s disability should be sufficient.
At this point, establishing the extent of the covered class becomes essential. There will likely be a wide range of coverage of students whose disabilities impede their communication skills in ways that prevent them from understanding or responding to the allegations against them triggering school discipline. In terms of the IDEA’s enumerated categories, this could cover disabilities from emotional disturbance to the range of conditions on the autism spectrum.
As previously discussed, certain students are excluded from the IDEA’s “emotional disturbance” category after the “social maladjustment” exception;
they could be included in the ADA’s coverage, which has no such exclusion. Since their disability would likely come into play in the highly emotionally charged setting that is a disciplinary hearing, they seem likely to need an adult with them during the hearing to help them explain themselves and respond to the allegations against them. On the other hand, some disabilities that do not impede the communication abilities of students would be unlikely to fall within the class discussed in this Note.
An example of this might be a blind student, whose disability does not affect the student’s comprehension of or ability to produce spoken language.
C. Requesting a Reasonable, Necessary Accommodation
Once their disability status has been established, students must request the accommodation of a representative during school suspension hearings. The crux of disabled students’ ADA claims in the context of school disciplinary proceedings will be the contention that representation of some sort at disciplinary hearings that can result in removal from school is a reasonable accommodation for the special obstacles disabled youth face in those hearings. Courts will have to balance that contention against the argument by school officials that such representation would fundamentally alter the character of the hearings, and, perhaps, of schools as well.
Students are not likely to receive the assistance of a lawyer, as analogous case law suggests. For instance, the disabled individuals subject to deportation proceedings in the Franco-Gonzales case were not entitled to lawyers.
Considering the very severe consequence at issue in Franco-Gonzales—deportation—it seems unlikely that suspension or even expulsion from school would guarantee students’ access to lawyers.
Finding a comparable standard for juveniles whose disabilities render them unable to participate in school disciplinary hearings may prove difficult, as there is no well-established understanding of competency in such hearings like there are in criminal law. Student plaintiffs should frame their claim by emphasizing the meaningful access they seek in their requested accommodation. Because the plaintiff class will be defined in terms of its inability to participate meaningfully in suspension hearings,
plaintiffs should seek an individual who can remedy this by helping them overcome their disability. This likely means someone trained or with some experience working with individuals who share the student’s disability. A social worker, or perhaps even a social work student under supervision of trained social workers, may present the necessary combination of expertise and availability.
Law students under the supervision of either a social worker or a lawyer could be another avenue.
These types of individuals could serve as advocates because they would be able to confer with students and present the students’ version of the facts to the decisionmaker. Because law students and social work students are trained to represent others’ interests, they are likely to be able to perform the necessary functions of an advocate on behalf of disabled students.
School defendants will likely argue that students’ parents could serve as adequate representatives. This is truer in education than in immigration, where the Franco-Gonzales court rejected parental representation as insufficient, because school disciplinary hearings are likely to be more accessible to laypeople than are deportation proceedings.
However, many parents would likely be working during the school day, making it hard to justify compelling their appearance. Even rescheduling hearings to times of parent availability may be insufficient, as a parent does not necessarily possess representational skills adequate to convey his or her child’s point of view such that the child can participate in the hearing.
D. Refuting a Fundamental Alteration Defense
Once the reasonableness of the accommodation is shown, the plaintiffs must address the defense that representation would fundamentally alter the character of school discipline proceedings. As a preliminary matter, school districts cannot claim this accommodation is barred by an internal rule requiring students to represent themselves, because the ADA can preempt nonfederal rules that purport to ban a requested accommodation.
Requesting a qualified representative in immigration court is, in many ways, easy, because attorneys regularly practice in that setting. This is not the case in school suspension hearings, in which the right to due process is satisfied by an “informal give-and-take between student and disciplinarian.”
But the ADA claim is premised on students’ inability to participate in this give-and-take with teachers or administrators, because of their disabilities. Plaintiffs’ counsel should carefully frame the argument so it is clear to courts that the representative sought under the ADA is not a new right but the only way students with disabilities can access their existing right to participate informally in suspension hearings. In this way, the students will be able to overcome the fundamental alteration defense just as the Franco-Gonzales plaintiffs did.
As a result of this inquiry, students with disabilities whose disabilities impair their ability to participate in suspension or expulsion decisions seem likely to prevail on an ADA claim for representation in school disciplinary proceedings. As long as the class and requested accommodation are framed in terms of students’ inability to participate meaningfully in these hearings, students will likely overcome any fundamental alteration defense on the part of school defendants.
IV. Too Little or Too Much?
Assessing the Limits of the ADA Approach
Two major policy concerns may arise from the proposed application of the ADA to disciplinary proceedings for the students whose disabilities impede their ability to participate. The first concern is that the ADA approach does too little because it protects only some students; the second is that the approach does too much because it will overproceduralize disciplinary hearings and in the process change the nature of schools themselves.
A. Too Little: A Limited Covered Class
If the ADA claim proposed above
succeeds, it will be a great boon to the set of students with disabilities whose disabilities impede their ability to function independently in disciplinary hearings. However, the drawback of grounding the protection in the ADA is that it leaves out the large number of nondisabled students subject to school discipline, even under the ADA.
As previously discussed, many low-income and minority students face the same disadvantages as their disabled peers in school discipline.
The disproportionate discipline each group experiences is quite similar, but the ADA only extends to individuals with disabilities, leaving a wide swath of the students pulled into the school-to-prison pipeline without assistance.
Despite this drawback, the ADA remedy is, as far as it goes, promising. Students with disabilities are a vulnerable population, and will likely struggle more than nondisabled students if they are excluded from school. Because the disabilities of the class of students at issue impact the students’ ability to communicate in the disciplinary setting, the give-and-take hearing required before a suspension or expulsion can be imposed is restricted to the school official’s version of events, heightening the specter of noneducational discipline. This presents a serious potential for abuse. The fact that this existing statutory tool cannot help all students who face disproportionate discipline is not a reason to abandon the effort as a first step in slowing the flow of the school-to-prison pipeline.
Another version of this objection is that students with disabilities who receive ADA protections will not look noticeably different from students already privileged in other ways in schools. That is, whiter, richer students whose parents are better able to navigate school procedures will continue to benefit more, while poorer, minority students will continue to have worse outcomes.
This will especially be true for the first plaintiffs, because the novelty of the claim will require increased resources to take the students’ school district to court. In some ways, this objection is true of any legal remedy—access is dependent on some combination of savvy, resources, or the availability of pro bono aid.
However, that is an insufficient answer, since the purpose of the remedy is to help disadvantaged students, who are more likely to lack access to precisely the resources required to gain these procedural protections.
B. Too Much: An Additional Layer of Procedure
Grant Gilmore once wrote, “In Hell there will be nothing but law, and due process will be meticulously observed.”
Something similar can be said about schools, where there is a general sense that inflexible rules have multiplied, becoming ever more cumbersome for teachers to satisfy without necessarily helping students’ educational development.
This section addresses the objection that importing quasi-judicial protections to school discipline via the ADA will negatively affect schools’ institutional character. This is a more subtle objection than the fundamental alteration prong of the ADA is designed to address;
whereas that legal defense to accommodations protect the “essential attribute[s]” of the activity in which accommodation is sought,
this objection is essentially policy-based: What should schools look like?
One response to this criticism is that this is already the world we live in: Due process has attached to these hearings nationally since 1975, when Goss v. Lopez was decided.
One can criticize the idea that suspension hearings are legally cognizable events to which due process attaches, but one is working against a forty-year history of such protections.
The ADA claim is only novel insofar as it has not yet been the basis for this kind of procedural protection for all students.
Still, there is a deeply felt view that teachers are too constrained in their treatment of students, and forcing teachers to advocate for their disciplinary decisions will further weaken their authority.
However, as this Note has already described, the discretion that teachers are able to exercise, in disability determinations and in deciding to refer students to disciplinary hearings, operates to systematically push black and poor students out of mainstream classrooms.
It is hard to square claims for increased teacher discretion with the reality that students with disabilities are being pushed out of classrooms.
On the other hand, it is possible that ADA disability determinations will become just as contentious as IDEA eligibility determinations can be currently.
With a lot riding on this determination, it will likely become the focus of significant parent and school resources if the proposed ADA suit is successful, thereby diverting some resources away from a focus on student outcomes. This shift in focus would somewhat undermine the purpose of the claim, which is preserving students’ full experiences in the classroom. Still, the ADA solution is a preferable outcome to full removal from schools. As discussed above, diverting a student out of school can be extremely damaging for his or her future educational attainment, and increases the likelihood of contact with the juvenile justice system.
Compared to the gravity of this potential harm, the ADA presents an existing tool that promises to effectively allow students to resist being pulled into the pipeline, so that they continue to receive appropriate services in schools.
Though the effects of the school-to-prison pipeline have been studied, there has been virtually no exploration of how existing statutory regimes can be used to protect students from unnecessary school discipline. This Note contributes to existing scholarship by proposing and detailing the components of a claim under the ADA for representation to accompany students with disabilities in school disciplinary hearings. It concludes that students bringing such a claim would likely be successful. There are drawbacks to using the ADA, but this approach would protect an exceptionally vulnerable population from highly damaging removal from schools.