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

27 Pages Posted: 14 Feb 2019

See all articles by Hilary Wilkerson

Hilary Wilkerson

Texas Tech University School of Law

Date Written: February 1, 2019

Abstract

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 (ADA) 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 of the ADA does not apply during an arrest. This exception to ADA protection is particularly problematic when considering arrests in schools. Students with disabilities are at high risk: twenty-six percent of students arrested and seventy-five percent 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 of the ADA should apply to arrests in a school setting.

But Applying Title II of the ADA 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.

Keywords: disability, student, arrest, school, law enforcement, behavior supports, autism, ADA, IDEA, Title II

Suggested Citation

Wilkerson, Hilary, Special Needs, Special Solutions: Using Title II of the ADA and Behavioral Supports to Protect Students With Disabilities From Arrest (February 1, 2019). Available at SSRN: https://ssrn.com/abstract=3327586 or http://dx.doi.org/10.2139/ssrn.3327586

Hilary Wilkerson (Contact Author)

Texas Tech University School of Law ( email )

1802 Hartford Avenue
Lubbock, TX 79409
United States

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