Cullman City Schools has filed a criminal harassment charge against a student diagnosed with Asperger’s, a move that may be in violation of federal law.

Earlier this month, Melanie Roberts, the defendant’s mother, received a summons saying her son, a senior at Cullman High School, was being charged with criminal harassment for a comment he made in October about his school’s administration, a misdemeanor punishable by up to 90 days in jail.

While schools commonly work with law enforcement to handle possible safety and security issues, it’s not clear how common it is to start a criminal complaint against a student in Alabama. Nationwide, schools refer tens of thousands of students to law enforcement every year according to the Center for Public Integrity, with Black students and students with disabilities “getting the brunt of it.”

In a hearing held Thursday morning at the Cullman County Courthouse, Roberts and her family sat in disbelief as they awaited the judge.

“I didn’t sleep at all last night,” said Roberts. “Instead of being at school, we’re here.”

Principal Allison Tuggle is listed as the plaintiff on the summons; she was not present at the hearing.

“My son has the right to face his accuser,” said Roberts, who kept an eye on the door throughout the hearing.

Roberts said high school staff have not given her son required behavioral support services, have pushed him into virtual learning and have overreacted to inappropriate comments at school, culminating in the unusual circumstance of a principal filing a criminal charge.

According to Roberts, the school initially removed the student from campus in October after he said he “would just love to kill administration.” The criminal charge came three months later.

Roberts said her son did not mean to be threatening.

“This year a new administration was hired and they’d call me every other day to tell me that my son had said something inappropriate. Eventually, they started following him around the school, asking him wouldn’t he rather be in virtual school, until he had a meltdown,” said Roberts. “He’s never been violent – he just doesn’t have a filter and that’s because of his Asperger’s.”

Cullman City Schools Superintendent Kallhoff said in a statement to AL.com:

“Federal law prevents us from talking about any particular student. State law prevents us from talking about particular juvenile proceedings.

“Since you have asked for a statement, without referring to any student, the Cullman City Schools point out that we strive to provide a safe school environment, free of violent acts. We take any threat to kill people very seriously. We follow Alabama law and our policies, which require that we report acts of violence accompanied by threats to kill employees. We appreciate the support of the Cullman Police Department and the SROs on our campuses daily.”

Roberts says her son’s individualized education plan calls for the school to provide him with a counselor for behavioral support to help with his comments. But she says the school has failed to do so.

“They were supposed to have provided counseling since the ninth grade, but they said they could never keep a contract with a counselor, and so he didn’t get the counseling that he needed and there are a lot of other services that he was supposed to get that he did not get,” said Roberts.

Schools are required by federal law to provide services listed on a student’s IEP. If they are unable to do so, they must then provide compensatory services, which are educational services needed to make up for skills or learning that have been lost when services described in an IEP are not provided.

The failure to do so violates federal law as well as a student’s right to a Free Appropriate Public Education (FAPE).

The school transitioned the defendant to virtual learning in October, which Roberts says has been a difficult way for her son to learn.

“He’s always been on track to graduate this year but now with virtual school he’s falling behind.”

Cullman City had a counselor do an evaluation on the defendant in November, according to Roberts, and the counselor determined he did not pose a threat and his outburst was due to his disability.

The student has still not been allowed to return to campus, and according to Roberts, he has not been formally suspended or expelled, which is called informal exclusion.

New guidance on disciplining students with disabilities released by the US Department of Education in July called for schools to first determine if a student’s behavior was caused by their disability prior to disciplining them in an effort to eradicate the disparities facing students with disabilities, who represent 13% of the student population nationwide but experienced 23% of expulsions, according to data from the federal agency.

Research has shown that students with disabilities are not only more likely to face school discipline, but are also disproportionately represented in juvenile detention.

A 2014 study found that “youthful offenders with learning disabilities, when compared with nondisabled youthful offenders, were more likely to be suspended from school, were adjudicated delinquent at younger ages, and were more frequently held in detention centers.”

The guidance states that if a student’s behavior is determined to be caused by their disability by the student’s 504 team – which includes parents, the principal, classroom teachers, and other school personnel such as a nurse or counselor – a school cannot proceed with disciplinary action.

According to Roberts, no meeting with the 504 team has been held.

Informal exclusions from school are still subject to the same process.

The department of education’s guidance goes on to say that “a school’s lack of appropriate record-keeping regarding informal exclusions may cause the school to violate Section 504′s FAPE requirements and procedural safeguards.”

When asked what disciplinary protocols were taken and whether any behavioral supports were provided to students with disabilities given they are disproportionately disciplined, Kallhoff responded:

“We do not believe, and disagree strongly with your statement that, ‘students with disabilities … are often disproportionately disciplined compared to their peers.’ We also regret the bias against those students demonstrated by such a statement.”

Follow-up questions to determine whether the school district adhered to the US Department of Education’s new guidance in their disciplinary protocols were not responded to.

Following the hearing, the judge called for another mental health evaluation for the defendant to take place this month before any further hearings are scheduled.

If you have a student with a disability in Alabama schools or have experience with the special education system and want to discuss your experience, please contact reporter Savannah [email protected].