When Discipline Trumps Disability Rights: How Michigan’s Student Discipline Practices Systematically Violate the IDEA

By Paul N. Barger, Esq., Barger & Gaines

Introduction

Across Michigan, students with disabilities face a troubling reality: school districts routinely suspend and expel them for behaviors directly related to their disabilities. These consequences for behavior are regularly handed out without providing the supports and services mandated by federal law. These practices violate the Individuals with Disabilities Education Act (IDEA) and contribute to a cycle of exclusion in which students with disabilities are removed from educational environments rather than supported within them.

The Michigan Department of Education’s current framework for student discipline, while ostensibly neutral, enables districts to circumvent federal protections for students with disabilities. The result is a two-tiered system where students with disabilities who have social, emotional, and behavioral needs are disproportionately excluded from educational opportunities, often with minimal oversight or consequences for non-compliant districts.

The Legal Framework: IDEA’s Protections

The IDEA establishes clear protections for students with disabilities facing disciplinary action. These protections are not discretionary and key provisions include:

Manifestation Determination

Under 20 U.S.C. § 1415(k)(1)(E) and 34 C.F.R. § 300.530 (E), before a district may impose a disciplinary change in placement, it must convene the IEP team to determine whether the conduct was:

1.    Caused by, or had a direct and substantial relationship to the child’s disability, or

2.    The direct result of the school district’s failure to implement the IEP.

If either condition is not met, the behavior must be deemed a manifestation of the student’s disability. The district may not proceed with the disciplinary removal, except in limited special circumstances.

Obligation to Provide FAPE

Even during disciplinary removals, schools must continue to provide a Free Appropriate Public Education (FAPE). 20 U.S.C. § 1415(k)(1)(D); 34 C.F.R. § 300.530(d). This includes:

·      Educational services that enable progress toward IEP goals

·      Services allowing progress toward IEP goals

·      Behavioral interventions

Functional Behavioral Assessments and Behavioral Intervention Plans

When behavior is a manifestation of disability, districts must:

·      Conduct a Functional Behavioral Assessment (FBA), and

·      Implement or revise a Behavior Intervention Plan (BIP) 34 C.F.R. § 300.530(f)

Child Find and Evaluation Requirements

 Schools have an affirmative duty to identify and evaluate students suspected of having disabilities. This includes students with behavioral challenges that may indicate underlying social-emotional needs. 20 U.S.C. § 1412(a)(3); 34 C.F.R. § 300.111.

Michigan’s Implementation Gap

Despite these federal requirements, Michigan’s approach to student discipline reveals significant gaps including:

 Inadequate Behavioral Supports

Many Michigan districts fail to provide proactive behavioral interventions before resorting to exclusionary discipline. Common failures include:

·      Absence of functional behavioral assessments for students with repeated behavioral incidents

·      Lack of positive behavior intervention plans in IEPs

·      Insufficient training for staff in de-escalation and behavioral support strategies

·      Limited access to mental health services and counseling

Repeated reliance on exclusionary discipline without behavioral supports violates both IDEA and Section 504.

Procedural Violations in Disciplinary Actions

Districts frequently violate IDEA procedures when disciplining students with disabilities. Common violations include:

·      Conducting inadequate or perfunctory manifestation determination reviews

·      Failing to reconvene IEP teams to address behavioral concerns

·      Not providing required educational services during suspensions

·      Improperly changing placements through repeated suspensions

Procedural violations that impeded parental participation or result in loss of educational benefit constitute a denial of FAPE.

Michigan’s Systemic Under-Identification

Michigan schools often fail to identify students with social-emotional and behavioral disabilities until after significant disciplinary issues arise. Some examples include:

·      Delayed evaluations despite clear behavioral indicators

·      Narrow interpretation of eligibility categories

·      Resistance to identifying students with emotional impairments

·      Failure to consider trauma and mental health factors

Courts have held that persistent behavioral issues trigger Child Find obligations, even without formal diagnoses.

Michigan’s Statutory Discipline Framework and Its Structural Gaps

Michigan’s general discipline authority is codified as MCL § 380.1310-1311a, which grants school boards broad discretion to suspend or expel students. Although these statutes reference federal disability law, they do not impose meaningful state-level limitations on cumulative suspensions or require affirmative procedural safeguards beyond the federal minimum.

As a result, Michigan districts routinely:

·      Issue repeated suspensions of fewer than ten days

·      Avoid recognizing cumulative removals as changes in placement

·      Delay or bypass MDRs and reconvening of the IEP team

Federal guidance makes clear that a series of short-term suspensions can constitute a change in placement when they form a pattern. 34 C.F.R. § 300.536

Michigan’s Suspension Limits in the National Context

Michigan’s approach to student discipline stands in stark contrast to neighboring states and other jurisdictions that have implemented more protective frameworks for students with disabilities. This comparison reveals the extraordinary level of days Michigan students with disabilities can be kept out of school compared to their peers in other states.

Neighboring States: More Protective Standards

 Ohio

Ohio limits initial suspensions to ten school days maximum, with strict requirements for manifestation determination reviews before any extensions. Ohio Rev. Cod § 3313.66. While Ohio permits suspensions beyond ten days for serious offenses, the state requires community service or alternative consequences rather than extended exclusion from school.

Indiana

Indiana restricts suspensions to no more than ten school days, with specific protections requiring manifestation determinations for longer removals. Ind. Code § 20-33-8-18. The state requires that any cumulative suspensions over ten days trigger special education protections.

WISCONSIN

Wisconsin has no absolute limit on cumulative suspension days but requires strict procedural safeguards after ten days. Wis. Stat. § 120.13(b)(2). The state limits consecutive suspensions to five days, or fifteen days if expulsion proceedings are initiated.

Illinois

Illinois follows the federal ten-day standard, requiring manifestation determination reviews for suspensions exceeding this limit. 105 Ill. Comp. Stat. 5/10-22.6(b).

Northeastern States: Enhanced Protections

New York 

New York limits initial suspensions to five consecutive school days for students with disabilities, with ten-day limits requiring superintendent approval. Superintendents’ suspensions can last from six days to one year but require immediate due process hearings within five days. 8 N.Y.C.R.R. § 201.4. The state requires manifestation determinations within ten school days of any disciplinary change in placement. 8 N.Y.C.R.R. § 201.8.

New Jersey

New Jersey limits suspensions to ten consecutive or cumulative school days before triggering change in placement protections. Notably, New Jersey maintains a forty-five-calendar day limit (not school days) for interim alternative placements, believing that nine weeks is too long for removal from educational programs. N.J.A.C. 6A:14-2.8. The state prohibits suspension or expulsion of preschool through second grade students except in extreme cases involving firearms or violence.

Connecticut

Connecticut restricts suspensions to ten consecutive school days maximum. Conn. Gen. Stat. § 10-233c. The state also limits total suspensions to ten times or fifty days per school year, whichever results in fewer days of exclusion. Connecticut prohibits out-of-school suspension and expulsion for students in second grade and below, except in extreme situations.

The Michigan Exception

 Unlike these stats with clear protective limits, Michigan allows districts to suspend students with disabilities for extended periods with minimal oversight. While other states have implemented ten-day limits, mandatory manifestation reviews, and restrictions on cumulative suspensions, Michigan districts can:

·      Issue repeated suspensions just under ten days to avoid federal protections

·      Accumulate dozens of suspension days without triggering meaningful review

·      Remove students with disabilities for behaviors directly related to their disabilities

·      Avoid providing educational services during extended removals.

This comparison demonstrates that Michigan’s approach is an outlier, providing significantly fewer protections for students with disabilities than neighboring states and major northeastern jurisdictions. The result is that Michigan students with disabilities can face significantly more days of suspension in a school year, exceeding what would be permitted in states with more protective framework.

The Consequences: A System That Fails Students

The impact of these violations extends far beyond individual disciplinary incidents.

Academic Regression

Students subjected to repeated suspensions and expulsions experience:

·      Loss of instructional time

·      Disrupted educational progress

·      Increased dropout rates

·      Widening achievement gaps

School-to-Prison Pipeline

Exclusionary discipline practices disproportionately funnel students with disabilities into:

·      Alternative education settings with limited resources

·      Juvenile justice systems

·      Long-term institutionalization

·      Criminal justice involvement

 Mental Health Deterioration

 Exclusionary discipline exacerbates behavioral and emotional challenges. Without appropriate supports students experience:

·      Increased behavioral challenges

·      Deepening mental health issues

·      Social isolation and stigmatization

·      Reduced access to therapeutic services

Case Examples: Patterns of Violation

While cases require confidentiality, common patterns emerge across Michigan districts.

Pattern 1: The Suspension Cycle

Students with undiagnosed ADHD or emotional impairments face repeated short-term suspensions that cumulatively exceed ten days without triggering IDEA protections. Districts exploit this loophole by issuing nine-day suspensions, allowing a brief return, then suspending again.

Pattern 2: Inadequate Manifestation Reviews

When manifestation reviews do occur, they often involve:

·      Predetermined outcomes favoring suspension

·      Failure to consider all relevant information

·      Exclusion of parents from meaningful participation

·      Rubber-stamp approval of disciplinary actions

Pattern 3: Punishing Disability-Related Behaviors

Students are routinely disciplined for behaviors directly related to their disabilities:

·      Students with Autism Spectrum Disorder suspended by sensory-related outbursts

·      Students with ADHD expelled for impulsivity

·      Students with emotional impairments removed for anxiety-related behaviors

The Enforcement Vacuum

Michigan’s monitoring systems inadequately track disparities or impose corrective action, despite IDEA’s state supervision mandate. See 20 U.S.C. § 1412(a)(11). Despite clear IDEA violations, Michigan districts face minimal consequences

Limited State Oversight

The Michigan Department of Education’s monitoring systems fail to:

·      Track patterns of disproportionate discipline

·      Investigate systemic violations

·      Impose meaningful corrective actions

·      Ensure implementation of remedial measures

Barriers to Legal Recourse

Families face significant obstacles in challenging violations:

·      Complex due process procedures

·      Costly legal representation requirements

·      Lengthy timelines that outlast student enrollment

·      Limited awareness of rights and remedies

Lack of Accountability Measures

Districts continue violating IDEA with impunity due to:

·      Minimal financial penalties

·      No personal accountability for administrators

·      Insufficient public reporting requirements

·      Limited state intervention authority

Recommendations for Reform

Addressing these systemic violations requires comprehensive reform in the areas of:

 Legislative and Regulatory Changes

1.    Strengthen Michigan’s discipline codes to explicitly incorporate IDEA protections

2.    Mandate comprehensive data collection on discipline disparities

3.    Establish automatic triggers for state intervention based on discipline patterns

4.    Create expedited complaint procedures for discipline-related violations

District-Level Improvements

1.    Implement universal screening for behavioral health needs

2.    Require evidence-based behavioral interventions before exclusionary discipline

3.    Provide comprehensive professional development on disability awareness

4.    Establish multi-tiered systems of support for all students

Accountability Mechanism

1.    Public reporting of discipline data disaggregated by disability status

2.    Financial consequences for districts with persistent violations

3.    Independent monitoring of manifestation determination reviews

4.    Required corrective action plans with measurable outcomes

Support Systems

1.    Increased funding for school-based mental health services

2.    Behavioral support teams in all schools

3.    Family advocacy and education programs

4.    Trauma-informed approaches to student behavior

 Conclusion

Michigan’s current approach to student discipline systematically fails students with disabilities, violating federal law and perpetuating educational inequity. The convergence of inadequate behavioral supports, procedural violations, and lack of accountability creates an environment where students’ disabilities are punished rather than accommodated.

The stark contrast between Michigan’s permissive suspension policies and the protective frameworks in neighboring states and across the nation underscores the urgency of reform. While states like New York, New Jersey, and Connecticut limit suspensions to ten days and require immediate manifestation reviews, Michigan allows districts to exclude students with disabilities for weeks or months with minimal oversight. This disparity means Michigan students with disabilities face educational disruption and exclusion far beyond what their peers in other states experience.

Reform is not merely a legal imperative but a moral one. Every day that passes without addressing these violations represents lost educational opportunities, damaged futures, and preventable harm to vulnerable students. Michigan must move beyond compliance rhetoric to implement meaningful changes that ensure all students, regardless of disability, receive the education and support they deserve.

The path forward requires courage from policymakers, commitment from educators, and sustained advocacy from communities. Only through comprehensive reform can Michigan transform its disciplinary practices from a system that excludes and punishes to one that includes and supports all students.

Call to Action

This issue demands immediate attention from:

·      Legislators – Enact stronger protections and accountability measures

·      Educators- Advocate for resources and training to support all students

·      Parents- Learn your rights and demand appropriate services

·      Legal Advocates- Challenge systemic violations through strategic litigation

·      Community Members- Support inclusive educational practices and policies

The time for change is now. Michigan’s students with disabilities cannot afford to wait while their rights are violated and their futures compromised. Together, we must build an educational system that truly services all students, honoring both the letter and spirit of the IDEA.

To learn more, contact Attorney Barger by phone 914-902-5918 or by email at info@bargergaines.com.

Join Barger & Gaines March 3 for an Update on Special Education Law

Partner Paul Barger will discuss what’s new in special education law at a March 3 professional networking event for the special education and advocacy community at Rye Grill & Bar.

The gathering, from 6:30 to 8:30 p.m., presents as an opportunity for parents, educators, and consultants to connect with Barger & Gaines to discuss resources for children with diverse learning needs.

It will be hosted by educational consultant Rachel Krisbergh, educational therapist Nicole Taylor, and Dr. Michael Rosenthal, a pediatric neuropsychologist.

With a master’s degree in both Special Education and General Education from New York University, as well as 10 years of experience as a special education teacher in public and private schools in New York City, Rachel Krisbergh understands the obstacles families face when seeking special educational resources and social-emotional support – and she empowers parents with the knowledge and tools they need to make confident decisions about their child’s education. https://www.krisberghconsulting.com/

Nicole Taylor has a bachelor’s degree in Elementary and Special Education and a master’s degree in early, Elementary, and Special Education. She is certified as a special education teacher for students from birth through 6th grade in New York State. After teaching and tutoring for 10 years, Nicole left the classroom to work with students one-on-one as a certified Educational Therapist. Her consultancy is called Taylored Learning. https://www.taylored-learning.com/

Dr. Rosenthal, or “Dr. Mike,” is the founder of Rosenthal and Associates, a pediatric neuropsychology practice based in Rye Brook. His work, a critical component of the special education process, emphasizes understanding a child’s social-emotional and developmental needs alongside their academic challenges to create a road map for success. In addition to his expertise in neuropsychological assessment, his background and training in cognitive-behavioral (CBT), family systems, and psychodynamic/attachment theories enrich his understanding of how and why a child may be struggling and the best ways to intervene. http://www.drmichaelrosenthal.com/

Attorney Barger is the co-founder of Barger & Gaines, which focuses on special education law, helping families navigate legal rights, IEP (Individualized Education Plan) disputes, and student accommodations.

He represents families in a variety of matters involving public schools, and while many of his cases involve securing appropriate services for students with special needs, he also handles bullying cases, residency disputes, disciplinary hearings, and essentially all issues impacting public and private schools.

In addition, he represents students in matters involving colleges, universities and graduate programs – and provides counsel to private schools on a wide range of matters.

Barger & Gaines serves clients nationwide from an office in Irvington, N.Y., (Westchester County) and locations in New Jersey, Connecticut, and Michigan. See our website to learn more https://www.bargergaines.com or call us at (914) 902-5918.

Join Barger & Gaines for Virtual Parent Workshop on IEPs, 504s, and FAPE

Barger & Gaines Senior Counsel Giulia Frasca will lead a Virtual Parent Workshop on Nov. 5 hosted by Huntington Learning Center and offer legal insights on IEPs, 504s, and FAPE.

FAPE stands for Free Appropriate Public Education, a right guaranteed by federal law through the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act. It ensures that students with disabilities have access to a public education that meets their individual needs at no cost to their families. Key components include an Individualized Education Program (IEP) and being educated in the Least Restrictive Environment (LRE).

The Virtual Parent Workshop, taking place from 7 to 8 p.m. is designed to help families understand their rights and explore legal options to ensure their children’s academic and future success.

If your child is struggling in school despite having an IEP or 504 Plan, or you’re unsure if the school is providing the support your child is legally entitled to, join Attorney Frasca in the Virtual Parent Workshop to explore topics including the following:

·      Common struggles families face with school response and interventions

·      The differences between IEPs and 504 Plans

·      FAPE – what it means and how to ensure your child receives it

·      Legal pathways for families to pursue when schools fall short

·       A live Q&A with experienced education advocates

Register to attend the Virtual Parent Workshop

If you would like to view the webinar but can’t attend live, register to attend and a link to a recording will be provided.

For more information about Virtual Parent Workshop, contact Carolyn Garafalo at Huntington Learning Center by email at GarafaloC@hlcmail.com.

About Giulia Frasca

Attorney Frasca focuses her practice on special education law and advocacy, general educational law, estate planning, guardianship, disciplinary matters, Child Protective Service and Association for Children’s Services matters, OPWDD appeals, involuntary commitment and assisted outpatient treatment matters in New York, New Jersey, and Connecticut.

She has been successful in litigating against school districts for reimbursement for tuition, compensatory services and appropriate programs for students with special needs when the school districts failed to provide one. She has also represented children with special needs in disciplinary and bullying matters, in guardianship matters, and in matters against the Association for Children’s Services in New York City and Child Protective Services in Westchester County.

An October 2025 Google review praised Attorney Frasca for her professionalism, genuine compassion, and unmatched knowledge of education law in going above and beyond for her clients.

Reach her by phone at (914) 902-5918 x114, or by email at info@bargergaines.com.

See her profile page to learn more.

About Barger & Gaines

At Barger & Gaines, we specialize in education law and are dedicated to ensuring every student has the support they need to succeed. See the firm’s website to learn more and contact us for a consultation at (914) 902-5918, ext. 114.

Barger & Gaines is a 'Hero Sponsor' for the Walkathon to End Bullying

Barger & Gaines is proud to be a Hero sponsor of the Walkathon to End Bullying, hosted by the Teen Kindness Board (TKB) of the Be A Friend Project and taking place from 11 a.m. to 2 p.m. Oct. 18 at the Valhalla Campus of Westchester Community College.

The walkathon, and multiple satellite walks taking place until Oct. 31, supports the efforts of the Be A Friend Project’s national network of student ‘Upstanders’ working to save the lives of their bullied peers and build kinder communities using empathy, education and the arts. The initiative takes place during National Bullying Prevention Month.

So far, $10,917 has been raised toward the goal of $22,000. Go to this page https://givebutter.com/BAFPwalk if you want to register to walk and get a T-shirt for $20, join the BAFP as a peer-to-peer fundraiser and start getting pledges, make a donation to support a team member, or create their own team and start fundraising.

If you want to plan your own satellite walk, go here http://bit.ly/4nUQOvM, and those who would like to join Barger & Gaines as a sponsor may do so here: http://bit.ly/46NJU5g

“After a decade of interviewing parents of our Friend Mail Recipients to learn their children’s stories, we at the BAFP know just how vital a law firm like Barger & Gaines truly is for support, guidance, safety and healing,” the BAFP said in a Facebook post thanking the firm for its Hero sponsorship. “We are honored to walk with their support at our October 18th 3rd annual Walkathon to End Bullying.” http://bit.ly/3Wq3ONT

At Barger & Gaines, we specialize in education law and are dedicated to ensuring every student has the support they need to succeed. See the firm’s website to learn more https://www.bargergaines.com and contact us for a consultation at (914) 902-5918, ext. 114.

The BAFP is a “kids for kids” nonprofit, and the national Teen Kindness Board helps guide new initiatives and programming. Its Friend Mail Program delivers surprise peer support with empathetic words and art to survivors of severe bullying to help them stay strong and know they are not alone – and school and community-based Kindness Clubs celebrate and cultivate acts of bullying prevention and kindness activism. Learn more here: https://www.beafriendproject.org

The Be A Friend Project was founded in 2015 by business partners and playwrights Jennifer Young and January Akselrad (composer), to carry into action the "speak up, reach out and be a friend” message of their 8x Broadway World Award-winning middle school show, "IT'S EASY! The Friend Strong Musical."

Jennifer incorporated the BAFP as a non-profit 501c3 in 2019, guiding the “KIDS FOR KIDS” organization of student bullying prevention & kindness activists to the international presence it has today.

Senior Counsel Robert Tudisco Will Share What It’s Like to Be an Adult Diagnosed with ADHD in a Sept. 30 Webinar

Barger & Gaines Senior Counsel Robert Tudisco

Barger & Gaines Senior Counsel Robert Tudisco will share what it’s like to be an adult diagnosed with ADHD as part of a Sept. 30 webinar entitled A View from the Inside: Attorneys with ADHD, Dyslexia and ASD.

The webinar is being presented by Sped-Net in partnership with Wilton Public Schools and Newtown Sped PTA in Connecticut. Those wishing to attend the 7 to 8 p.m. webinar may learn more and register online: https://spednet.org/inside2025/

Joining Attorney Tudisco will be education and disability rights attorneys Michael Gilberg and Ptahra Jeppe, and together the group will share what it’s like to have ADHD, dyslexia, and Autism Spectrum Disorder (ASD), disabilities commonly seen in special education students.

They will reflect on their experiences growing up and in the education system, and will discuss how being neurodivergent informs their work as special education and disability rights attorneys.

Attorney Tudisco is a nationally recognized author, motivational speaker, and non-profit management consultant. As Senior Counsel to Barger & Gaines, he specializes in matters involving school disciplinary hearings and criminal defense, in addition to general special education advocacy.

He is a member of the American Bar Association’s Commission on Disability Rights. Among other prominent roles, from 2010 through 2013, he was the Executive Director of the Edge Foundation, a non-profit organization that provides specialized coaching for students with ADHD and executive functioning impairment.

See his profile page to learn more or contact him by email at info@bargergaines.com or by phone at (914) 902-5918, ext. 114.

SPED*NET, Special Education Network, Ltd., is a non-profit organization dedicated to helping parents of children with special needs become their children’s best advocates throughout the special services process and the transition to college, employment or other post-secondary pursuits.

Webinar: Tuition Reimbursement and Transportation

Please sign up for a panel presentation including Paul Barger on Tuition Reimbursement & Transportation.

January 15, 2025, 7:00 PM.

Hosted by the Special Education Legal Fund.

Tuition Reimbursement & Transportation Registration, Wed, Jan 15, 2025 at 7:00 PM | Eventbrite

Glossary of Special Education Terms

By Jennifer Swift, Esq.

As parents navigate their child’s educational journey, they may occasionally be confronted with what seem like an alphabet soup of acronyms.

We understand the worlds of education and special education can be challenging, especially when it seems like officials are speaking a different language. To help, we’ve prepared a glossary of sorts to explain some of the most commonly used acronyms. Many of these terms are rooted in the IDEA (Individuals with Disabilities Education Act) but we’ve also included a few that are specific to New York.

1. 1. IDEA: Individuals with Disabilities Education Act. The IDEA is a vital piece of legislation which ensures students with disabilities receive a FAPE (free appropriate public education). The IDEA protects students ages 3 to 21 whose disabilities which impact their ability to learn.

2. 2. 504 Plan: Not an acronym, but still worth a mention. A 504 Plan refers to Section 504 of the Rehabilitation Act of 1973 and aims to provide students with disabilities equal access to education alongside their non-disabled peers.

3. 3. ESY: Extended School Year. Certain students are eligible for an extended school year, also known as a 12-month school year. IEPs will feature a question as to whether the student qualifies for ESY. Most commonly, this is addressed at the student’s annual review.

4. 4. IEP: Individualized Education Program. This is a plan developed by a committee consisting of parents and educators which specifies the special education services, accommodations and modifications a student requires. There are 13 categories of disability in an IEP.

5. 5. IESP: Individualized Education Services Plan. Similar to an IEP, this document is specific to the “services” portion of an IEP. A parent may request an IESP if their child is attending a school outside their home district.

6. 6. CSE: Committee on Special Education. This group comprised of District administrators, educators and staff who identify students eligible for IEPs and create the resulting programs. Parents are also integral members of their child’s CSE.

7. 7. CPSE: Committee on Preschool Special Education. Similar to a CSE, this committee is focused on children ages 3 to 5.

8. 8. BIP: Behavior Intervention Plan. A BIP is created for students experiencing behavioral challenges. The plan identifies strategies and interventions to address those struggles.

9. 9. FBA: Functional Behavioral Assessment. This precedes the BIP. An FBA is the assessment and data collecting process used to identify the student’s behaviors and the reasons behind those behaviors.

10. 10. LRE: Least Restrictive Environment. This mandate under the IDEA requires that students with disabilities are educated alongside their non-disabled peers to the greatest extent possible.

11. 11. OHI: Other Health Impairment. OHI is one of the 13 categories of classification in an IEP. OHI is often a catch-all category for students with health-related disabilities that impact their ability to learn.

12. 12. ED: Emotional Disability (formerly Emotional Disturbance). A category of disability for students with emotional or behavioral struggles which significantly affect their educational performance.

13. 13. ID: Intellectual Disability: A category of disability for students with significant limitations in intellectual functioning and adaptive behavior, which impacts their educational performance.

14. 14. LD: Learning Disability. A category of disability for students with disabilities impacting their ability to read, write, listen, speak, reason, or perform mathematical calculations.

15. 15. FAPE: Free Appropriate Public Education. The legal requirement mandating Districts provide students with disabilities an education specific to their individual needs at no cost to the family.

16. 16. IEE: Independent Educational Evaluation. This is an evaluation usually requested by parents which is conducted by a third-party. IEEs are most often requested after parents disagree with, or have concerns with the District testing.

17. 17. ICT: Integrated Co-Teaching. A model of teaching which provides students with IEPs individualized instruction within a classroom that includes both general education and students with disabilities.

THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE CONSIDERED LEGAL ADVICE.

Post Mahanoy Free Speech

By Gideon Porter, Esq.

In the age of social media and in an ever more connected world, the issue of student free speech outside the school is at the top of many parents’ minds. Parents want to shield their children from school discipline due to posts on Instagram and other social media apps but often are not exactly sure how to.

Historically, the debate over student free speech has focused on words and actions at school. In the foundational Supreme Court case Tinker v. Des Moines Independent Community School District, decided in 1969, the majority opinion famously declared students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

But when do students cross the line from protected speech to unprotected speech? And how is speech regulated differently in school vs. outside of school?  In other words, when can schools restrict student speech? Tinker articulated a standard that has long served as the framework: student speech can be restricted only if it “would substantially interfere with the work or impinge upon the rights of other students.”

Tinker further articulated that schools could restrict speech if it “might reasonably [lead] authorities to forecast substantial disruption or material interference” or hinders “with the rights of other students to be secure and to be alone.”

Years later, in Hazelwood v. Kuhlmeier, the Supreme Court held that schools “need not tolerate student speech that is inconsistent with its basic educational mission.” Put another way, students are subject to school discipline when they interfere with the education of other children.

As a result, this area of first amendment law has examined whether student speech at school creates a substantial disruption and interferes with a school’s basic educational mission.

Before social media, instances where student speech outside of school created a substantial disruption were often easy to analyze. A student on a Saturday night leaving a message on the school’s answering machine announcing a threat to the school or another student? That speech would be deemed unprotected, and that student would be rightfully disciplined.

But the world has changed. Instagram, Snapchat, Facebook, and smart phones allow students, off campus and on campus, to narrowly tailor their messages and speech to a select audience.

Questions about student speech are now more complicated. Sentiments that may have previously been verbally expressed among friends are now posted online.

But what constitutes a substantial disruption on Instagram? What powers should schools possess regarding the digital lives of their students?

Consequently, courts have had to grapple with student speech in the age of the iPhone.

In 2021, the Supreme Court finally addressed this changed world in Mahanoy Area School District v. B.L. The facts of the case are simple: a high school student tried out for the varsity cheerleading team but only made junior varsity. That weekend the student, B.L., on Snapchat, posted a picture of herself and a friend raising a certain finger with a caption cursing out the school and the cheerleading program. She made another post as well expressing her disagreement with being left off the varsity teams. B.L.’s posts were visible to around 250 people, including fellow students and cheerleaders.

Some students screenshotted the posts and expressed concern to the cheerleading coach. The coach concluded B.L. violated both school and cheerleading team rules. She was suspended from the junior varsity team for the year.

She sued the school alleging, among other things, that her suspension from the junior varsity team violated her First Amendment rights.

Eventually the case made its way to the highest court in the land. To the delight of free speech advocates, the Court ruled in B.L.’s favor.

As it often does today, the Supreme Court did not articulate a bright line rule explaining how student off campus free speech rights differ from on campus free speech rights. Nor did the Court provide a bright line rule articulating a standard stating how student first amendment rights should be balanced with a school’s legitimate interest in preventing substantial disruptions.

Instead, the Mahanoy decision states there are three unique features of off-campus speech. Specifically the Court explained that (1.) schools rarely stand in loco parentis (in the place of a parent) when a student speaks outside the school setting; (2) regulating off campus speech, in combination with regulating on campus speech, means that student speech is regulated around the clock so there should be a general skepticism in regulating off campus speech and; (3) schools have an interest in protecting unpopular expression because public schools are “the nurseries of democracy.”

The Court held “these three features of much off-campus speech mean that the leeway the First Amendment grants to schools in light of their special characteristics is diminished.”

Regarding B.L.’s actions the Court stressed that B.L.’s speech was outside of the school day; it did not identify the school itself nor did it target any member of the school with crude or abusive language; and that she transmitted the speech via Snapchat to a selected audience.

The Court held that B.L.’s posts did not amount to a substantial disruption simply because some students were upset. Moreover, the Court held that because her speech was conducted off campus meant that her school at the time was not standing in loco parentis.

Due to the lack of bright line rules in Mahanoy it has been fascinating to see how lower courts interpret and apply the decision.

Two of the most scrutinized post Mahanoy decisions are Chen v. Albany Unified School District (a Ninth Circuit case) and CI.G v. Siegfried (a Tenth Circuit case). These decisions stand out because each uses Mahanoy to arrive at different outcomes: the former held that disciplining a student for off campus speech was not a violation of students’ first amendment rights and the later held that a student’s First Amendment rights were violated when he was disciplined for off campus speech.

In Chen v. Albany Unified School District, the Ninth Circuit relied on the Mahanoy decision to hold there was enough of a connection to the school and a student’s off campus speech that his speech could be regulated. The facts of the case were deeply disturbing: a student created a private Instagram account (separate from his public account) which was accessible to only thirteen students. The student posted racist pictures and captions directly involving other students in the school. It was undisputed that the student sought to keep his posts and account private.  But while the student sought privacy, the Ninth Circuit reasoned that it should still be examined whether it was reasonably foreseeable that the Instagram posts would reach the broader school community and create a substantial disruption. Due to the easily accessible posts and the rapid nature in which such posts can spread (and in fact did so across the student body) the Ninth Circuit held that such disruption was foreseeable and that the off-campus speech should be regulated. Of note, is that the Ninth Circuit observed that if the District did not intervene it would have created a racially hostile environment at the school.

The Tenth Circuit decision in CI.G v. Siegfried relies on Mahanoy to arrive at a very different conclusion. The facts in this case, also deeply disturbing, involve a student who posted a picture on Snapchat (on his private story, viewable for 24 hours) of himself in military garb with the caption “Me and the boys bout to exterminate the Jews.” Later he posted on his private story that “I’m sorry for the picture it was meant [sic] to be a joke.” The student was expelled after a parent complained. He brought legal action and eventually the Tenth Circuit found in favor of the student. The opinion held that it was not reasonable to predict a substantial disruption from the post and that in fact there was not an actual disruption.

Clearly there is a lot to learn from these decisions. Here in the tristate area, it will be fascinating to see how one of our high courts rules on an off campus free speech case when implementing Mahanoy.

THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE CONSIDERED LEGAL ADVICE.