Special Needs, Special Solutions: Using Title II of the ADA and Behavioral Supports To Protect Students With Disabilities From Arrests

Introduction

Students with disabilities are frequently arrested in K–12 public schools for misbehavior that would be better addressed with reasonable accommodations and behavioral support. Title II of the Americans with Disabilities Act (“Title II”) prevents discrimination by requiring that public entities modify procedures to allow individuals with disabilities to benefit from and participate in the entity’s programs, services, and activities. Despite this sweeping protection, some courts have held that Title II does not apply during an arrest. This exception to the Americans with Disabilities Act (“ADA”) protection is particularly problematic when applied to arrests in schools because students with disabilities are at high risk of arrest: 26% of students arrested and 75% of students restrained have a disability. This Article takes the novel position that because arrests in a school setting do not pose the same risks as arrests in a community setting, Title II should apply to arrests in a school setting.

But applying Title II alone will not stop arrests. This Article goes beyond ADA protection and offers proactive solutions to curb misbehavior and prevent arrests. Schools are required by the Individuals with Disabilities Education Act (“IDEA”) to provide students with an Individualized Education Plan reasonably calculated to allow the student to make progress. A student is unable to progress when maladaptive behaviors interfere with learning and lead to arrests. Amendments to the IDEA requiring schools to implement policies and procedures for law enforcement involvement, and behavioral supports when a student’s behavior hinders learning, would reduce misbehavior, eliminate the need for law enforcement involvement, and reduce the number of arrests on school campuses.

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