It is becoming increasingly clear that students with disabilities are both disproportionately vulnerable to accusations of sexual misconduct and disproportionately vulnerable to sexual misconduct.
On the Friday before Thanksgiving week, the Office for Civil Rights of the US Department of Education issued proposed rules governing Title IX, the federal law that prohibits discrimination on the basis of sex in education. The law applies to both K-12 and institutions of higher education that receive federal funding. This is, practically speaking, almost every school in the United States.
Unfortunately, the new rules do not address the intersection of Title IX with disability law such as Section 504 of the Rehabilitation Act, the Individuals with Disabilities Education Act, or the Americans with Disabilities Act.
Students with disabilities such as Autism Spectrum Disorder or ADHD may succeed spectacularly in academic settings. They may even need no accommodations for academic work. But, once accused of sexual assault or if targeted for a sexual assault, these students are swiftly drawn into investigations and campus proceedings under Title IX.
No matter how well adapted or “mainstreamed” the student is, nothing will have prepared them for this.
They will likely face quasi-judicial proceedings before administrators with little training or concern for disability rights. Certain manifestations of mental disabilities may come across as indications that the student is insincere, not credible, evading questions, or misrepresenting facts. Requests for accommodations may also be taken as stalling or as an evasion of the investigation itself.
Furthermore, the reasonable accommodations that students need to cope with investigations and hearings are different from the standard menu for academic work (like “time and a half” for tests, note takers, etc.). A few schools have developed policies that expressly provide for disability accommodations in Title IX proceedings or other disciplinary investigations. Most do not.
The norm in most colleges and universities, for example, is to have a Disabilities Service Office that is separate from the school’s Title IX Coordinator. Disability rights and accommodations are handled by separate administrators. A separate grievance process applies. There is no requirement that the Title IX office consult with the Disability Services Office. The student remains protected by the prohibition against disability discrimination under the ADA or Section 504. But it is usually left to the student to assert such rights in the Title IX office.
The new proposed rules only provide that “emergency removals (e.g. temporary suspensions) shall not be construed to modify any rights under” IDEA, Section 504, or the ADA. The rules do not address procedural protections for students with disabilities or accommodations.
Experienced counsel can help students with disabilities demand their rights in Title IX proceedings. Counsel with experience in Title IX can also work with counsel who assist with PPTs, IEPs, and transition services. Whether you wish to report sexual misconduct or whether you are accused of sexual misconduct, you will need help navigating Title IX. This could mean the difference between having your side of the story taken seriously or being ignored.