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Disciplining handicapped students: legal issues in light of Honig v. Doe.

ABSTRACT: Court decisions interpreting the effect of the Education for All Handicapped Children Act on traditional forms of public school discipline have raised many questions. This article reviews these decisions and confirms that most forms of minor disciplinary remedies remain available to educators so long as they are also used with nonhandicapped students. However, many legal problems arise with expulsion and long-term, or indefinite, suspensions of handicapped students, especially in light of the recent Supreme Court ruling regarding the expulsion of handicapped students.

American public school officials traditionally have enjoyed great discretion in dealing with serious student misconduct, and this discretion has remained relatively unfettered by the courts. Generally, so long as students' constitutional rights are not infringed upon (Tinker v. Des Moines, 1969), and discipline is meted out with appropriate procedural due process (Goss v. Lopez, 1975), school officials' handling of student discipline matters has not been altered through the judicial process.

In the last decade, however, the courts have arrived at different results when dealing with the interplay of serious student misconduct and the statutory rights of handicapped students. For the first time, the nation's courts, including the U.S. Supreme Court, are telling school officials that their discretion in dealing with serious student misconduct may be greatly limited. Student vandalism, assault, insubordination, masturbation, smoking, sexual misconduct, and sale of drugs can no longer be dealt with swiftly and freely when the perpetrator is handicapped. Over a dozen court decisions have dealt with the discipline of special education students, many of whom are labeled behavior or emotionally disabled; and the results of those decisions have left many school officials shaking their heads. Times have changed---but just how drastic is the change?

Recent court decisions indicate that school officials must rely more heavily on special education professionals to deal with handicapped students who misbehave. The Education for All Handicapped Children Act (EAHCA, 1975) requires that schools deal with disruptive and dangerous students who pose a threat to students and staff rather than merely showing them the door (Hindman, 1986). Educators must plan and implement successful programs appropriate to meet the needs of handicapped students who are prone to having discipline problems. HONIG V. DOE The first case to reach the Supreme Court dealing with discipline of special education students was Honig v. Doe (1988). The facts in the case involved the proposed expulsion by the San Francisco School District of two students with emotional disabilities and aggressive tendencies. John Doe (a pseudonym) was a "socially and physically awkward" 17-year-old who had difficulty controlling his impulses and anger. From his earliest years in school, physical abnormalities, speech difficulties, and poor grooming habits resulted in his being the target of teasing and ridicule. One day, in response to taunts from a fellow student at a developmental center for disabled students, he reacted in an explosive manner anticipated by his individualized education program (IEP). He choked the student with enough force to leave abrasions on the boy's neck; afterwards, while being escorted to the principal's office, he kicked out a window. Doe was suspended from school for 5 days, and the principal recommended that he be expelled. Suit was brought, and the federal district court issued a temporary order directing the school to return Doe to his then current educational placement.

The other student, Jack Smith, was identified as an emotionally disturbed child in the second grade. He had been physically and emotionally abused as a child. Despite above-average intelligence, he experienced social and academic problems as a result of extreme hyperactivity and low self-esteem. Smith was placed in several alternative school settings, but by sixth grade was placed back in a special education program in a regular middle school. After experiencing behavior problems, including stealing, extorting money from fellow students, and making sexual comments to fellow classmates, his educational program was reduced to half-days. After Smith made additional lewd comments to female students, he was suspended for 5 days and recommended for expulsion.

Smith's grandparents brought suit on hiSS behalf, and his case was joined with Doe's. The district court found in favor of the students, and the school and state appealed to the Court of Appeals for the Ninth Circuit.

In Doe v. Maher (1986), the Ninth Circuit made several important rulings regarding discipline of special education students and found generally in favor of the students. Bill Honig, California Superintendent of Public Instruction, appealed to the Supreme Court; the Court agreed to hear the case on only two of the several issues decided by the Ninth Circuit. The Court agreed to review the questions of (a) whether school authorities may unilaterally expel special education students for dangerous or disruptive conduct arising out of their disabilities when their parents have filed an appeal of the proposed action and (b) whether a state must provide educational services directly to a disabled student when the local school district refuses or neglects to do so.

On the latter issue, the Justices split 4 to 4 and let stand the Ninth Circuit ruling that the state must provide services directly to a handicapped student when the local school district fails to do so. On the former question, the Justices voted 6 to 2 to uphold the Ninth Circuit's ruling that handicapped students could not be expelled pending the outcome of the administrative review process.

The Supreme Court rejected Honig's argument that Congress did not intend the stay-put provision of the EAHCA [20 U.S.C. SS1415(e)(3)] to deny school officials their traditional authority to remove students from school who are dangerous and disruptive to the school environment. It found instead that Congress clearly meant to strip schools of their unilateral authority to exclude disabled students from school pending the outcome of a parent appeal of a proposed expulsion.

The Court concluded that its ruling did not leave educators "hamstrung" in dealing with serious misconduct by handicapped students. It stated that schools are not precluded from using procedures it normally uses with nonhandicapped students, such as the use of "study carrels [apparently meaning isolation], timeouts, detention. . . . restriction of privileges," and short-term suspensions for up to 10 school days. Short-term suspensions allow schools to temporarily remove students who are dangerous and whose parents refuse to agree to a change in placement. The 10-day period gives school officials time to plan alternative placements or to seek court approval for an extended period of removal from school. In instances where schools seek court orders to keep a special education student out of school for more than 10 days, the burden is on the school to establish that the student is likely to injure himself or herself or others if returned to school.

The results of the Honig v. Doe (1988) ruling on the "stay put" provision places tremendous responsibility on the educational professionals dealing with handicapped students who are dangerous to themselves or others. If a program formerly deemed to be appropriate for such a child is not working satisfactorily, as demonstrated by severe inappropriate behavior, school administrators cannot any longer exercise the easy alternative of expulsion. Instead, the staffing team will have to be creative in making adjustments to the existing program, find an appropriate alternative placement, or gather evidence to take before a judge to seek a longer removal from school. Even then, a court's agreement that removal for longer than 10 days is appropriate is only a temporary reprieve for the educators seeking an appropriate alternative placement. At some time, the student will likely be ordered back to school or to an appropriate alternative placement.

Though the Supreme Court has resolved in favor of handicapped students the issue of whether a school may exclude a handicapped student for disciplinary reasons pending the outcome of an administrative appeal, a myriad of other issues related to expulsions and lesser disciplinary approaches remain unresolved. Many of those issues have been addressed by lower courts, but not always with unanimous results. EXPULSION AS A DISCIPLINARY TOOL One of the unanswered questions remaining in the wake of Honig v. Doe (1988) is the importance of the misconduct being a manifestation of the handicap. In Honig, the causal factor between the handicap and the miscounduct were not disputed, and the Court did not expressly address the relatedness issue.

Lower courts have consistently determined that handicapped students may not be expelled if their misconduct is a manifestation of their handicap. This result is arrived at by a matter-of-fact analysis of the EAHCA. Handicapped students' right to educational programs and services is clearly established in statutory law, but there are no statutorily established legal conditions upon which that entitlement may be forfeited for misconduct. In the leading recent decision, reviewed by the Supreme Court on other issues, the Ninth Circuit expressly so ruled and struck down a California statute on student expulsion because it did not exclude handicap-related misconduct (Doe v. Maher, 1986). The court reasoned that denial of special education programs and services cannot be based on circumstances caused by the handicapping condition which initially entitled the student to special education programming. The view that handicapped students may not be expelled if the misbehavior is a manifestation of the handicap has been accepted by the Fourth (School Board v. Malone, 1985) and Sixth (Kaelin v. Grubbs, 1982) Circuits, was accepted by a district court in Indiana (Doe v. Koger, 1979), and was stipulated by the parties in a leading case out of the Fifth Circuit S-1 v. Turlington, 1981).

Court decisions are not in agreement on the issue of expulsion when the misconduct is not a manifestation of the handicap. In Doe v. Maher (1986), the court concluded that a handicapped student could be expelled when it is properly determined that the child's behavior is not a manifestation of his or her handicap. In such situations all educational programs and services may be stopped when a handicapped student is properly expelled. The court found that there is no justification for exempting a student from school rules on expulsion when the misbehavior does not result from a handicapping condition. This view was adopted earlier by a district court in Indiana in Doe v. Koger (1979). The Indiana court expressly ruled that the EAHCA only prohibits expelling children who are disruptive as a result of their handicap. It stated that the primary distinction between handling handicapped and nonhandicapped student expulsion is that it must be determined first whether the handicap "is the cause" of the misconduct. In a case arising in Virginia, the Fourth Circuit has concluded that a child may be expelled when the behavior is not caused by the handicap, but expressly declined to determine whether some level of education services must continue to be provided (School Board v. Malone, 1985).

In a conflicting decision arising in Florida, S-1 v. Turlington (1981), the Court of Appeals for the Fifth Circuit concluded that expulsion is a "proper disciplinary tool" for handicapped children under limited circumstances, but their expulsion could not result completely in an end to special education services. The court did not explain which aspects of an education program could be stopped and which could not or how programs for expelled students would be funded when funding formulas are based on enrollment or attendance. In a case arising in Kentucky, the Sixth Circuit subsequently agreed with the result in S-1. It concluded that only when there is not a complete cessation of educational services during the expulsion period, can handicapped students be expelled for misbehavior that is not a manifestation of the handicap (Kaelin v. Grubbs, 1982).

Because court decisions are in unanimous agreement that a student should not be expelled for misconduct resulting from the handicap, the distinction of handicap-related conduct and conduct unrelated to the handicap is very important. In practice the determination is not an easy one, but the difficulty does not provide the states with an excuse to shirk their duty to educate handicapped students. When states accept federal special education funds and agree to the terms of the EAHCA, they must abide by those terms: "Those who accept the sovereign's pay cannot complain of his terms of acceptance" (Doe v. Maher, 1986, p. 1483). Determining the Relationship of Handicap to Misconduct The courts agree that the staffing team of professionals and parents should decide whether the student's conduct is related to the handicap and whether the child's placement is appropriate or inappropriate. On appeal of disagreements of appropriateness, the determination is first made by an administrative hearing officer and then the courts. Under the U.S. Supreme Court decision in Hendrick v. Rowley (1982), courts were admonished to review only the technical and procedural aspects of the EAHCA and to leave the substantive issues of appropriate educational theories and methodology up to the educators and hearing officers.

In School Board v. Malone (1985), the local school board argued that it should determine whether a student threatened with expulsion was in an appropriate educational placement. The court found that agreement with the board would seriously undermine the purposes of the EAHCA. A school board could circumvent the procedures protecting a handicapped student by simply determining that the student's placement was appropriate, then expelling the student without further review under the EAHCA. The court concluded that a team of educational professionals must make the decision, not the school board.

The burden of establishing whether the student's misconduct is a manifestation of the handicap appears to be on the school officials. In S-1 v. Turlington (I 98 1), the Fifth Circuit concluded it would be unfair to place the burden of establishing whether a relationship exists between misconduct and a student's handicap on the parents. The conclusion was based on the remedial nature of the EAHCA and the fact that most parents "lack the wherewithal" to know or assert their rights under the law.

Only one court has shed light on the specific process to be used by the staffing team in deciding whether a handicap is related to a student's misconduct; and in effect, it is the process of determining appropriateness of programming. In Doe v. Maher (1986), local school officials challenged a federal district court ruling that stated decisions of the staffing team are to be made by majority vote. School officials argued that such decisions are to be made by consensus, and the Ninth Circuit agreed. It noted that under federal regulations (Assistance to States for Education of Handicapped Children, 1987) either side could invite unlimited numbers of persons to the IEP meetings to "stack the deck," and thus the key majority rule prerequisite of a body having a fixed number of members was not present. The court concluded that the proper decision-making medium at a staffing team meeting is consensus of the participants when a consensus is reached. When consensus is not reached, however, the education agency is to formulate an appropriate education plan based on its knowledge and expertise and then afford the parents the opportunity to challenge the plan through a due process hearing.

The courts are not in agreement as to the degree of direct causation that must exist between a student's handicap and his or her misbehavior to be protected from expulsion. The court in Doe v. Maher (1986) concluded that behavior problems of two emotionally handicapped students might be a direct result of their handicap and thus be indistinguishable in principle from the physical incapacities of an orthopedically impaired child. The court reasoned that since Congress expressly included emotionally disturbed in the definition of handicapped children, their handicap-related misbehavior could not result in a halt to educational services. In a footnote to the Maher decision, the Ninth Circuit indicated that for the misconduct to be handicap related it had to significantly impair the child's ability to control behavior. Indirect relationships, such as loss of self-esteem where the child intentionally misbehaves to gain attention, were not considered to be included, because the court felt that such conduct is not unique to handicapped children.

The Fifth Circuit took a different view in S-1 v. Turlington (1981). The school officials' argument that mentally disabled students who could understand school rules and tell right from wrong did not experience their handicap being manifested in their misconduct was rejected. It also rejected the school's position that a student's misconduct can never be a symptom of a handicap unless the student is classified as emotionally disturbed. Testimony in the record before the court indicated a connection may have existed between the students' mental disabilities and their misconduct. The record established that children who are lower functioning intellectually and even physically handicapped children may become stressed and may respond aggressively to their environments.

Acceptance of the view of indirect causation in S-1 was also present in School Board v. Malone (1985). The Malone decision involved a high school student with "serious learning disabilities" and "borderline" intelligence who was a go-between among students in the purchase of drugs. The local administrative hearing officer and a state reviewing official concluded that the boy's handicap was sufficiently related to his misconduct to preclude his being considered for expulsion, and the district court agreed. The court concluded that the boy's loss of self-image, desire for peer approval, and emotional problems, which led him to be a "stooge" for his peers, were a result of his learning disability in that he was academically unable to keep pace with his peers. The district court had concluded that even though the boy knew right from wrong, his learning disability prevented him from understanding the consequences of his actions; the reviewing circuit court agreed. The circuit court also rejected a school argument that expelling a handicapped child is prohibited only when placement is determined to be improper. That view had been the basis for a ruling in Doe v. Koger (1979), which stated that expulsion must be preceded by a determination that a student's disruptive activities were not related to an inappropriate placement.

Whether the courts in a specific area require direct or indirect relationship between a handicap an the student misconduct before expulsion is prohibited is an important consideration for educational an administrative handling of student problems. But more important legal issue is whether the court consider a proposed expulsion to be a change i placement. Expulsion as a Change in Placement The courts unanimously interpret expulsion as change in placement," as that phrase is used in the EAHCA. This is true whether or not the misconduct is related to the handicap and whether or not the student may be expelled from all education programs and services. This determination is vitally important because proposing a change in special education placement triggers a number of important parental procedural safeguards.

The Federal District Court in Connecticut was the first to address the issue. The court concluded in Stuart v. Nappi (1978) that expelling handicapped children is a change of placement and is inherently "inconsistent" with the statutory and regulatory procedures established for changing the placement of disruptive handicapped students. The court ruled that the EAHCA established the exclusive process by which changes in the placement of handicapped children, including expulsion, can be made.

In S-1 v. Turlington (1981), the Fifth Circuit determined that the EAHCA, as a remedial statute, was to be broadly applied and liberally construed in favor of the provision of a free appropriate public education to special education students. The Fourth Circuit agreed, concluding that the concept of individualized education planning "would be eviscerated ated if school officials could expel handicapped children using traditional expulsion procedures" (Kaelin v. Grubbs, 1982). In Kaelin, the court rejected a school's argument that the EAHCA established a dual standard of conduct that resulted in handicapped students' going unpunished for disruptive acts for which nonhandicapped students would be punished. It concluded that handicapped children could generally be disciplined in the same manner as nonhandicapped children, only the procedural safeguards would be different.

The conclusions of the courts in S-1 and Kaelin were later adopted by the Ninth Circuit in Doe v. Maher (1986). When the Doe decision was accepted for review by the Supreme Court, it did not agree to review that specific aspect of the case. However, a strong inference that the Supreme Court considered explusion a change in placement arose in a footnote that stated that suspensions in excess of 10 days constituted a change in placement (Honig v. Doe, 1988). A finding that a proposed expulsion is a change in placement has significant procedural implications. Procedures to Be Followed The conclusion that expelling a handicapped student is a "change in placement" under the EAHCA is important because it automatically triggers a number of prescribed procedures that must be adhered to under the act. First, the parents of a child being considered for expulsion must be notified in writing. The notice must be specific and detailed, exceeding the notice elements generally required by common practice and constitutional procedural due process.

Second, a meeting of the staffing team, including parents and educators, must be held to determine whether the student's misconduct is related to the handicap and whether the current educational placement is appropriate. Alternative forms of decision making have been rejected by the courts. A school board's argument that it should determine whether the placement was appropriate was rejected in one circuit as contrary to the EAHCA (School Board v. Malone, 1985). Another circuit court concluded that a superintendent's independent determination that a student's misconduct was not a manifestation of his handicap was inadequate under the EAHCA S-1 v. Turlington, 1981). No timelines appear to be established for conducting meetings to consider expulsion issues. One circuit court reversed a district court determination that the staffing team must meet within 5 days of a decision to consider expulsion (Doe v. Maher, 1986).

Third, because expulsion constitutes a "significant" change in placement, an evaluation of the student's educational needs must be compiled. The evaluation may be conducted by an independent third party at public expense. Fourth, the parents must be informed of their right under the EAHCA to demand an impartial administrative hearing and subsequent judicial review of an adverse hearing decision. And last, but perhaps most important, unless the parents and school officials agree otherwise, the student must be allowed to remain in the present educational placement pending administrative and judicial review.

The court in Doe v. Maher (1986) determined that the absence of these five procedural protections in California student discipline statutes made the statutes inapplicable and invalid as applied to handicapped students. The Sixth Circuit was in agreement and concluded that allowing the staffing team to address the issues struck an appropriate balance between a child's special education needs and the need of the school officials to discipline disruptive children (Kaelin v. Grubbs, 1982). In Stuart v. Nappi (1978), the court concluded that the IEP process required under the EAHCA was an adequate long-term method of dealing with children who exhibit behavioral problems.

An interesting situation involving the "stay put" provision arose in the case of Doe v. Rockingham (1987), An 8-year-old boy was suspended for 35 days pending school board review for disruptive incidents, including physical attacks on teachers and other students. During the suspension, the boy's parents had him evaluated by a psychologist, who determined he had a learning disability. The parents met with school officials to inform them of the finding and requested his return to school. The request was refused, and the parents brought suit in federal court. In court, the school claimed that it handled the situation properly and that the boy should remain in his then current placement, enrolled in school but under suspension, pending the outcome of the dispute. The court disagreed, ruling that when the school learned of the boy's possible disability, its refusal to reinstate him gave rise to the due process remedies of the EAHCA and established jurisdiction in the federal courts to enforce the law.

When exclusion from school is for reasons other than misconduct, the courts also require that EAHCA procedures be followed. In Sherry v. New York State (1979), a 14-year-old blind and deaf student with an emotional disorder was suspended indefinitely from a specialized school for the blind for engaging in self-abusive behavior. The court concluded that an earlier short-term temporary removal may have been appropriate as an emergency response. However, because removal was for an indefinite period, the suspension required a procedural response by school officials, including an opportunity for appeal and hearing and maintenance of the program status quo. Implications for Special Educators The role of the special educator as an evaluator, planner, program or service provider, and staffing team member takes on additional significance in light of the legal issues surrounding expulsion of special education students. Special educators must be especially diligent in determining the relationship of handicap to a student's misconduct and providing appropriate due process procedures. In those parts of the country where courts interpret the law to allow exclusion of handicapped students for misconduct unrelated to their handicap, it is only the professional expertise and judgment of special educators that stand between a handicapped student and an appropriate education. Instead of closing the school door to the disruptive, and sometimes dangerous handicapped student, educators are faced with finding or creating a program that meets both the needs of the individual student and the school community as a whole. SUSPENSION AS A DISCIPLINARY TOOL In dealing with the discipline of handicapped children, the aspect of expulsion that offends the EAHCA is simply that it terminates a mandated free appropriate public education FAPE) and may be effected only through specified procedures. Other forms of discipline may be administered by school officials with little apparent legal problem under the EAHCA, so long as they do not deprive the child of a FAPE or result in such a substantial change of program so as to be considered a change in placement (Doe v. Maher, 1986). Short, fixed-term suspensions of disruptive students from school appear to be especially useful in dealing with emergency situations. Such suspensions allow the child to remain in the special education placement but not necessarily to be in school. A short, fixed-term suspension of 5 days was likened by one court to a week of school missed due to a common cold. The court reasoned that neither a cold nor a 5-day suspension was a change in educational placement (Board of Education v. Illinois, 1982). Suspensions also allow school officials time to consider their options for additional evaluation and alternative placements (Doe v. Maher, 1986; Kaelin v. Grubbs, 1982).

In Honig v. Doe (1988), the Supreme Court clearly agreed that school officials may suspend handicapped students for up to 10 school days for misconduct when the same procedure would also be used with nonhandicapped students. However, it overturned the lower court's upholding of 20- and 30-day suspensions. The Court noted that the Department of Education had interpreted suspensions longer than 10 days to be changes in placement requiring a staffing team decision and due process protections. It concurred with the Department and found suspensions longer than 10 days in violation of the EAHCA.

The ruling in Honig did not expressly address the issue of whether accumulated suspensions exceeding 10 days is equivalent to a change in program, but rulings of the Department of Education have so stated (Thomas to Nail, 1985). Given the favorable stance taken by the Supreme Court on the Department's position on suspensions generally, it may be advisable to give deference to the Department's position that an accumulation of suspensions totaling more than 10 days is a change in placement.

Suspensions of indefinite duration create problems. The court in Doe v. Maher (1986) reasoned that fixed-term suspensions create an environment conducive to resolving disputes over disciplinary problems that indefinite suspensions do not. Suspensions of indefinite length would allow school officials to ignore EAHCA provisions by suspending a handicapped child indefinitely when he or she threatened to disrupt the school environment. Fixed-term suspensions were approved by the court because they provide school officials with a deadline in solving a handicapped student's behavior problem. The Supreme Court in Honig v. Doe (1988) impliedly concurred and concluded that "the power to impose fixed suspensions of short duration do not carry the potential for total exclusions that Congress found so objectionable."

In Sherry v. New York State (1979), a short-term suspension of a self-abusive child was found to be appropriate. The appropriateness of the action was called into question when the original suspension was extended indefinitely. The court considered the change from a fixed, short-term suspension to an indefinite suspension to be a change in placement within the meaning of federal law.

In a Virginia decision predating Honig v. Doe (1988), a school argued that the federal court did not have jurisdiction to intervene in the 35-day suspension of an 8-year-old boy for serious misconduct (Doe v. Rockingham, 1987). During the suspension, the boy was determined through private evaluation to be learning disabled, yet the school refused to reinstate him. The court concluded that while suspension may be proper in some instances, it was improper when not designed to be of educational benefit to the boy and none of the formal due process procedures were provided. Refusal to reinstate the boy and lack of opportunity to file an appeal violated the EAHCA.

All of the foregoing on suspensions presupposes that the student's misconduct is a manisfestation of a handicap or that a determination of such has not been made. If the misconduct is not a manifestation of the handicap, then the child may be treated as a typical student so long as the FAPE and change in placement provisions of the EAHCA are not violated (Doe v. Maher, 1986).

Traditional short, fixed-term suspensions are treated by the courts differently than expulsions. Other lesser forms of student punishment are treated in a manner similar to suspensions. OTHER FORMS OF DISCIPLINE Although issues involving handicapped student expulsion have received considerable judicial attention, and to a lesser extent so has suspension, there is a noticeable lack of court decisions on other types of student punishment. In Doe v. Maher (1986), the Ninth Circuit upheld short, fixed-term suspensions and stated that they are not the only disciplinary punishments permissible under the law:

Informal and reasonable disciplinary measures that

are less substantial---the sort that teachers and

principals have traditionally used to maintain order

in the classroom---are similarly inoffensive under

the EAHCA. (p. 1484)

In a discussion of the "stay put" or "status quo" provision of the EAHCA, the court in Doe v. Maher (I 986) noted that by taking away the ability of schools to expel or suspend students indefinitely, the EAHCA did not leave educators helpless to handle disruptive handicapped students:

They have recourse to the gamut of lesser

disciplinary measures and program variations that

do not rise to the level of changes in placement.

Moreover, educational agencies in extraordinary

circumstances may seek judicial relief should

existing procedures prove inadequate to cope with

truly exigent circumstances. (p. 1486)

One can only speculate what the court included in the "gamut of lesser disciplinary measures" and "informal and reasonable disciplinary measures," but certainly detention after school, in-school suspension, and corporal punishment come to mind. After all, the Supreme Court referenced corporal punishment as a traditional educational tool in Ingraham v. Wright (1977).

in reviewing the Doe v. Maher (1986) suspension issue, the Supreme Court in Honig v. Doe (1988) agreed that schools are not precluded from using their customary minor disciplinary procedures with handicapped students. The Court made no reference to determinations of misbehavior caused by the handicap. The inference to be drawn is that it makes no difference.

In Cole v. Greenfield (1986), school officials successfully defended their minor disciplinary actions against a hyperactive and emotionally disturbed student who was extraordinarily troublesome and disruptive in the classroom. Specific disciplinary techniques involved included paddling, isolated seating in the classroom and cafeteria, refusing to allow the student to participate in a class field trip, and taping the boy's mouth shut during class. The court emphasized the taping incidents were not extreme under the circumstances, and the desirability of efforts to mainstream students allowed such action. The court noted that the teacher's duty to provide an adequate educational experience extended to all the students in the class, not only the troublesome student. As long as handicapped students are disciplined like nonhandicapped students, they are not entitled to any special or unique exemptions or privileges.

In a recent ruling, the Federal District Court in Kansas held that in-school suspension for up to 5 days was not a change in placement and did not offend the EAHCA. This was true even though suspension time was spent in a 3 ft. by 5 ft. "time-out" room (Hayes v. Unified School, 1987).

Some of the court interpretations on minor disciplinary techniques run contrary to interpretations of the Department of Education's Office for Civil Rights. The Office for Civil Rights maintains that corporal punishment of handicapped students should not occur if the misconduct is a result of the handicap and that trained educational personnel must determine whether corporal punishment is appropriate (Thomas to Reeves, 1985; Thomas to Stroud, 1985). The Office for Civil Rights has also determined that a suspension from school bus transportation totaling 90 days was a significant change in placement which required due process rights and a determination of whether the misconduct was related to the handicap. These departmental interpretations run counter to some of the inferences raised by Honig v. Doe (1988). For instance, if a school does not need to find an absence of relationship between a handicap and misconduct for purposes of suspensions, detentions, timeout, and restrictions of privileges, why would paddling be treated differently? Changes in Program Whereas the Ninth Circuit in Doe v. Maher (1986) stated that changes in program that do not rise to the level of a "change in placement" are appropriate disciplinary measures, it did not delineate when specific changes in program equate to changes in placement. The court did conclude that reducing a full-time program to a half-time program for misconduct was a change in placement requiring full procedural rights. This also appears to be the view in the Fourth Circuit School Board v. Malone, 1985). Obviously, reducing or changing a program for disciplinary reasons is appropriate so long as the correct change of placement procedures are followed.

An Ohio court has ruled that an involuntary transfer from a classroom to a homebound program for reasons of discipline is a "change in placement" which gives rise to EAHCA procedures. In Lamont X. v. Quisenberry (I 984), the court reviewed changes in placement to homebound settings which had not been approved by the guardians of 12- and 15-year-old boys and had not yet been reviewed in the appeal process. Both boys were severely behaviorally handicapped students whose programs were changed because of destructive tendencies and uncontrolled outbursts of disruptive and violent behavior. The court noted that an indefinite home-study program was not a disciplinary procedure used for nonhandicapped students, so it could not be used for handicapped students unless it was developed as part of the IEP. The court concluded that school officials faced by an "emergency " situation involving handicapped children could respond only through use of " normal procedures. "

Two courts have ruled that schools cannot abdicate the responsibility to problem students by dropping them from the school rolls. One court ruled that dropping a student from the rolls and denying him educational services while he was enrolled in a hospital school after attempting suicide was a defecto expulsion without the required due process (Howard S. v. Friendswood, 1978). Another court ruled that a student's voluntary withdrawal from school does not necessarily negate his entitlement to due process procedures when the school denies his readmittance to school for disciplinary reasons S-1 v. Turlington, 1981). CONCLUSION America's court system is struggling under the weight of litigation involving handicapped students. Many of those cases have involved student discipline and have resulted in decisions contrary to traditionally accepted education practice. It has, therefore, become increasingly important for educators and their attorneys to become familiar with the court rulings involving handicapped student discipline and the implications they hold for the educational community. The following is a summary of those rulings: Expulsion as a Proper Disciplinary Tool Court decisions clearly indicate that a student may not be expelled from school for misconduct that is related to his or her handicap. The courts are divided, however, on the issue of removal from education programs when the conduct and handicap are not related. Several court rulings indicate that special education students may be expelled when student misconduct is not related to the handicap, but others say that even after expulsion students must continue to be provided special education programs and services. The courts do not agree on how direct the relationship must be before expulsion is precluded as a disciplinary option. Several have concluded that indirect causes, such as actions based on frustration from low academic achievement, may be sufficiently connected to prohibit the use of expulsion as a disciplinary tool. Other courts require a more direct causation. Determinations of whether misconduct is a manifestation of the handicap are to be made by the special education staffing team, not traditional decision makers such as school administrators or board members. The burden of proving that the misconduct is not a manifestation of the handicap is on school officials.

From what is clear and not so clear, school officials would be well advised not to consider expulsion a viable solution to a student's discipline problem. Even in states where handicapped students cannot be expelled or where they cannot be expelled when the misconduct is a manifestation of their handicaps, school officials do not have to maintain students in their education placements indefinitely. When severe misconduct evidences a questionable placement, the IEP change of placement procedures can be used for making appropriate changes in educational placement. The IEP team can take a student's discipline problems into consideration when making decisions on appropriate placement. Expulsion as a Change in Placement The courts are unanimous in ruling that an expulsion is a change in placement which requires the provision of parental procedural safeguards. These safeguards include a detailed written notice of the proposed change, a right to an appeal, and maintenance of the existing education program until the dispute is resolved. If maintenance in programs jeopardize the safety of the student or others, the student may be suspended for up to 10 days while the school seeks parental cooperation, or the aid of the courts in delaying the student's return to school. Suspensions Suspensions for fixed, short-term periods of 10 days or less do not equate to a change in placement nor deprive students of a FAPE. Therefore, such suspensions may be used even when the misconduct is a manifestation of the handicap. However, indefinite suspensions, suspensions exceeding 10 days, or combining several short-term suspensions for a total of over 10 days may constitute an improper change in placement and deprivation of a FAPE. Other Discipline Several court decisions indicate that disciplinary approaches that are less severe than expulsion and suspension are appropriate without EAHCA implications, provided the disciplinary techniques are reasonable under the circumstances and nonhandicapped students are subjected to the same treatment. Minor modifications in special education programming may be made in an effort to manage behavior change without EAHCA procedural implications, so long as they do not constitute a significant change in placement.

In light of the foregoing summary, Peter Leone's (1985) recommendation that special educators take a more active role in reviewing local discipline policies and practices remains sound. All educators would be well advised to review local and state policies and procedures for disciplining handicapped students. Limited financial resources will be better spent on providing instructional programs and services for handicapped students than on attorney fees defending questionable policies and practices.

The expertise and professional judgment of the special education educator have never been so important to the maintenance of a positive school environment as they now are. Issues involving behavior management of individual students are nothing new to those professionals. Prevention can come in part in the form of professional assurance of appropriate programming designed to head off common discipline problems associated with improper programming and attempting to get special education students more involved in the school scene Leone, 1985). Special educators also play crucial roles in making determinations of handicap relationship to misconduct. If a relationship exists or if an appeal is filed in a proposed expulsion where it doesn't, the special educators must be able to fashion a new or adjusted program that works. No longer do school administrators have the easy vehicle of expulsion to eliminate the most problemsome special education students. They must instead rely on the special educators to determine and provide workable solutions to handicapped students' discipline problems.

Such an approach is appropriate. The court system has generally shown a healthy respect for such professional judgment. Continuation of a search for a sound theoretical and research base to support those judgments is also important (Lehr & Haubrich, 1986).

The failure of special educators to successfully carry out their professional roles in regard to handicapped student discipline has important implications that reach beyond what is best for the individual student. At stake are expectations of a safe educational environment, parental and community support of public schools, and the support of colleagues who do not teach the handicapped. Failure to recognize and meet the challenge will have a big impact on whether a school is effective.
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Title Annotation:interpretation of the Education of All Handicapped Children Act and effect on school discipline
Author:Bartlett, Larry
Publication:Exceptional Children
Date:Jan 1, 1989
Previous Article:Review of comparative studies in the interaction of students with moderate and severe handicaps.
Next Article:Making Regular School Special.

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