Suspension and Expulsion of the Handicapped Student
| Publication year | 1986 |
| Pages | 1394 |
| Citation | Vol. 15 No. 8 Pg. 1394 |
1986, August, Pg. 1394. Suspension and Expulsion of the Handicapped Student
A parent receives an anxious call from the special education teacher at the child's middle school. The teacher says, "While playing at recess, Hank pulled out a knife and began threatening one of the children on the playground. The teacher on duty was able to get the knife away from Hank without anyone being hurt. Hank is in the principal's office now and we are requesting that you pick Hank up and keep him at home for the next three days as he is being suspended for his actions." Stunned, the parent drives to the school and picks up the child. Three days later, the parent is notified that Hank is being expelled for the remainder of the school year.
An uncommon occurrence? Hardly. The issue of suspension or expulsion of a special education student recently has come to the forefront as school officials face increasing incidents of school misconduct. When confronted with students selling drugs, disrupting classes, assaulting teachers or threatening other students, school officials may respond to the immediate situation with little thought to the rights of the handicapped child.
When a handicapped child is sent home from school and is not allowed to return, that child has been expelled from the school.(fn1) Such expulsion constitutes a change in educational placement, which brings into play the procedural protections of the Education for All Handicapped Children Act of 1975 ("Act").(fn2) Under this law, local school officials are prohibited from expelling students whose handicaps cause them to be disruptive. In such cases, school officials may only transfer the disruptive students to an appropriate, possibly more restrictive environment.(fn3)
The burden of proof is on the school district to produce evidence regarding whether or not a student was expelled for behavior due to a handicapping condition.(fn4) A reading of various sections of the Act and its accompanying regulations makes it clear that the Act was intended to limit a school's right to expel handicapped students.
The Act contains a provision that outlines the procedures by which schools receiving federal funds under the Act are to change the placement of handicapped students.(fn5) A school that accepts funds under the Act is prohibited from expelling students whose handicaps cause them to be disruptive. Stated another way,
for an appropriately placed handicapped child, expulsion is just as available as for any other child. Between a handicapped child and any other child, the distinction is that, unlike any other disruptive child, before a disruptive handicapped child can be expelled, it must be determined whether the handicap is the cause of the child's propensity to disrupt.(fn6)
Although expulsion may be a proper disciplinary tool under the Act and § 504 of the Rehabilitation Act of 1973 ("Rehabilitation Act"),(fn7) complete cessation of educational services is not. Before a handicapped student can be expelled, school officials must utilize a team of trained persons to determine whether the student's misconduct bears any relationship to the student's handicapping condition.(fn8)
In the case of S-I v. Turlington,(fn9) several handicapped students were expelled from high school in the early part of the 1977-78 school year for alleged misconduct. The actions upon which the expulsions were based included masturbation, sexual acts against fellow students, willful defiance of authority, insubordination, vandalism and use of profanity. Each of the students was expelled for the remainder of the 1977-78 school year and the entire 1978-79 school year, the maximum time permitted by state law. All of the students were classified as educable mentally retarded or mildly mentally retarded.
Although none of the students requested a hearing to determine whether their misconduct was related to their handicapping condition, the superintendent of schools determined that because S-I was not classified as seriously emotionally disturbed, his misconduct could not, as a matter of law, be a manifestation of his handicap. The relief sought by the plaintiffs centered around permanent injunctive relief compelling state and local officials to provide them with the educational services and procedural rights afforded them by the Act, the Rehabilitation Act and their implementing regulations.
The appellate court in Turlington held that expulsion of a handicapped student must be accompanied by a determination as to whether the student's misconduct bears any relationship to the student's handicap.(fn10) Furthermore, the court struck down the school district's contention that a...
To continue reading
Request your trial