Students, Discipline and Disabilities
| Jurisdiction | Kansas,United States |
| Citation | Vol. 68 No. 06 Pg. 44 |
| Pages | 44 |
| Publication year | 1999 |
68 J. Kan. Bar Assn. June/July, 44 (1999). STUDENTS, DISCIPLINE AND DISABILITIES
June/July, 1999
Jonathan Paretsky [FNaa1]
Copyright (c) 1999 by the Kansas Bar Association; Carol Hall, Jonathan Paretsky
Long gone are the dear old golden rule days, when reading and writing and arithmetic could be taught to the tune of a hickory stick. Attorneys stepping into the thicket where school discipline meets special-education law may soon find themselves longing for the simplicity of environmental litigation and 10-dimensional quantum string theory. Student conduct that calls for discipline implicates a myriad of state and federal statutes.
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In 1993, 12 percent of sixth- through twelfth-grade students surveyed reported having been the victims of physical attack, robbery or bullying in school. [FN1] Some 3 percent of students aged 12 to 19 reported carrying a weapon to school. [FN2] These figures, coupled with reports of drug use and acts of violence, have prompted tough legislative and educational policy responses aimed at producing a safe school environment.
Social misconduct among children is often related to certain disabilities. For example, some 40 percent of children diagnosed with Attention Deficit Disorder are arrested by the time they are 18. [FN3] In a recent study of incarcerated male and female juveniles, ADD was identified in 76 percent of the males and 68 percent of the females. [FN4] At the end of 1998, 58,433 students with statutorily recognized disabilities were enrolled in Kansas public schools. [FN5] These students engaged in violent acts against other students at the rate of 5.7 acts per 100 students and against teachers at the rate of nearly one act per 100 students. [FN6]
Both national and state policies mandate special protection for students with disabilities. Other policies, however, strive for stricter school discipline and increased prosecution of juveniles. These policies weave through each other, creating a complex legal fabric that challenges prosecutors and lawyers representing students or schools. Complicating the picture further are differences and inconsistencies between federal mandates and state statutes. [FN7] The law changes and develops quickly in this area. This article sets out the current status of the law in Kansas and identifies areas that remain unresolved by courts or legislatures.
Background
In the early 1970s, several courts found people with disabilities to be a protected class for purposes of equal protection in receiving educational services. [FN8] These cases used constitutional grounds to prevent the total exclusion of handicapped children from public education. In 1973, however, the United States Supreme Court held that education is not a constitutionally protected right. [FN9]
In 1975, on a finding that almost half of the handicapped children in the United States were receiving an inadequate education or none at all, Congress passed the Education of the Handicapped Act (EHA). [FN10] Before the EHA, many children with disabilities suffered under one of two equally ineffective approaches to their educational needs: either they were excluded entirely from public education or they were deposited in regular education classrooms with no assistance, left to fend for themselves in an environment inappropriate for their needs. [FN11]
The EHA, amended in 1990 as the Individuals with Disabilities Education Act (IDEA), established comprehensive guidelines for providing a free appropriate public education (FAPE) to all children with disabilities. The IDEA complements Section 504 of the Rehabilitation Act of 1973. which prohibits discrimination against individuals with handicaps, and K.S.A. 72-961 et seq., the Special Education for Exceptional Children Act. The purpose of these laws is to safeguard the rights of children with disabilities by providing a FAPE and to safeguard the rights of their families by providing procedural rights to participation in the education process. [FN12]
The express goal of the IDEA is "to assure that all children with disabilities have available to them ... a free appropriate public education." [FN13] Key procedural requirements include the identification and evaluation of children with disabilities, [FN14] the annual development of individualized education programs (IEPs) for each student with a disability, [FN15] education in the "least restrictive environment," [FN16] and a due process hearing with the right to sue in court if parents disagree with a school's proposed educational plan or change of educational placement or services. [FN17] On June 4, 1997, President Clinton signed into law amendments to the IDEA that have significant impact on student discipline. [FN18] The amendments clarify some rules and make others more obscure.
Many aspects of school discipline necessarily involve changing educational services or placement. Suspension, expulsion and state juvenile detention disrupt the educational process. To some extent, students with disabilities are protected against disciplinary intervention. These students do not, however, have carte blanche to engage in
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behavior that disrupts educational order or endangers the safety of others.
Special educational services and school discipline
While traditional school discipline often involves changing a student's educational placement, the IDEA's "stay-put" provision effectively limits a school district's ability to remove special education students from the school environment. The stay-put provision is the centerpiece of procedural due process afforded special education students. 20 U.S.C. § 1415(b)(3) provides that whenever a local educational agency proposes to initiate or change the educational placement of a special education student, the child shall remain in the current placement until all proceedings to effect the change have been completed, unless the parents and the educational agency agree otherwise. [FN19] The procedural safeguards include strict notice requirements, opportunities for mediation, impartial due process hearings on the record, the right to appeal to state or federal courts without regard to jurisdictional amount and reimbursement of certain costs and reasonable attorney fees.
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