HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Friday, December 30, 2022

Cutting the IDEA's Gordian Knot: Accepting Entanglements of Disability and Self and Embracing a 'Best Interests' Approach to Disciplining Students with Disabilities

Sarah A. Husk (Independent), Cutting the IDEA's Gordian Knot: Accepting Entanglements of Disability and Self and Embracing a 'Best Interests' Approach to Disciplining Students with Disabilities, 51 J.L. & Educ. 86 (2022):

The Individuals with Disabilities Education Act (IDEA) establishes a procedural right and process to protect students with disabilities from punitive disciplinary action where their misconduct is deemed to have stemmed directly from their disability. The manifestation determination review (MDR), in focusing on disability as a discrete, identifiable cause of student (mis)behavior, is oriented around an inquiry that is problematic, inadequate, and ultimately unworkable as a means of effectuating the aims of the IDEA. A central flaw of this assessment framework is that it is predicated on a faulty assumption that disability is (always) severable from a student’s identity, experience, and, ultimately, their behavior or (mis)conduct. This does a profound disservice to students, particularly those with chronic or life-long disabilities who cannot be “cured,” because this approach does not effectively help students develop the emotional and behavioral toolkits they need and deserve to have, and because it can detrimentally undermine young people’s self-concept and lived experience at a critical moment in their development and identity formation.

As such, it is necessary that the primary inquiry and procedural structure of MDRs and hearings be revised and re-envisioned to better serve the needs of students with disabilities and of society at large. Arguing for a general shift in thinking to a “family law approach” and appropriating (modified) family law frameworks, this Article concludes that a modified “best interests of the child” analysis, reconfigured under a “best interests of the student (with disabilities)” framework, should be adopted because it would more adequately protect students’ rights and produce better student outcomes. The proposed reforms would facilitate a more student-centered approach as well as a more nuanced consideration of linkages not only between a student’s (mis)conduct and their disability, but also of intersectional equity issues. (In other words, it would allow assessors to consider the effects of compounding factors such as a student’s race, socioeconomic status, food or housing insecurity, immigration status, limited English proficiency, trauma history, and other conditions and experiences) and the potentially heightened detrimental effects of harsh or exclusionary disciplinary actions on (certain) disabled students because of their disabilities. The proposed revisions would expand the current inquiry beyond simply the cause(s) of (mis)conduct to consider how a student’s disability might affect their experience of discipline, including whether the student’s disability might compromise the utility or efficacy of the action based on the student’s ability to understand, internalize, or otherwise productively respond to discipline because of their disability.


Finally, this Article describes the benefits and overall suitability of shifting to something more similar to a shared custody co-parenting model as a paradigm shift in this corner of special education law. It broadly advocates reconceiving of the Individualized Education Plan (IEP) team as a kind of “co-parenting team” with respect to discipline and behavior and identifies several specific ways to effectuate these changes. Moving toward a co-parenting framework would not only mitigate the inequitable power imbalance between parents and school staff but it would also be more conducive to helping children and young people with behavioral disabilities (and disabilities generally) learn to manage their behaviors and regulate their emotions by promoting consistency in discipline and behavioral expectations across school and home environments.

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