Discipline of special-education students under the Individuals with Disabilities Education Act.

• Author: Osborne, Allan G., Jr.

In 1975, Congress passed the Education for All Handicapped Children Act. (1) The Act was passed based on findings that the special-education needs of over half of the children in the United States with disabilities were not being fully met. (2) Specifically, Congress found that one million children with disabilities were entirely excluded from the public school system while others were allowed to participate but did not realize the full benefits of an education because their disabilities went undetected. (3) Thus, by mandating a Free Appropriate Public Education ("FAPE") (4) for all students with disabilities (5) in the Least Restrictive Environment ("LRE") (6) possible, Congress effectively required schools to fully incorporate students with disabilities into the public education system. The landmark legislation also gave students with disabilities and their parents unprecedented due process rights. (7) The law included a requirement that school officials and parents jointly design an Individualized Education Program ("IEP") (8) for each student requiring special-education. (9) Since 1975, Congress has amended the statute several times. One of those amendments, enacted in 1990, gave the law a new name: the Individuals with Disabilities Education Act ("IDEA"). (10)

Prior to the enactment of the IDEA, some students with disabilities were being totally excluded from the public schools, while others were not able to succeed in their educational programs. (11) The purpose of the IDEA is to ensure that students with disabilities have access to an appropriate education. (12) The IDEA includes a number of provisions to ensure that the rights of students with disabilities are protected. For example, a student's educational placement may not be arbitrarily changed by school officials. Rather, the IDEA specifies that a change in educational placement may occur only after the child's parents have been provided with written notice of the contemplated change. (13) If the parents object to the proposed change in placement, they may request a due process hearing. Depending on the state law, the due process hearing may be conducted by either the state or local education agency. (14) The hearing must be presided over by an impartial hearing officer who is not an employee of the state or local education agency. (15) If the hearing is held at the local level, the losing party may appeal to a state level hearing. (16) Eventually, unfavorable hearing decisions may be appealed to the state or federal courts. (17)

As indicated above, a student with disabilities must be educated in the LRE. For most students the LRE is the regular classroom and they are removed from the class only to the extent necessary to receive needed special-education services. Some students, however, may require a more restrictive placement. This could include a substantially separate special-education classroom in a public school, or a placement in a private day school, or a residential school.

The law, as initially enacted and amended, was silent on the subject of discipline. Many of its provisions, however, had implications for a school's efforts to discipline students with disabilities. (18) Since penalties like expulsion or long-term suspension would deprive a student of educational opportunity, courts found such discipline to deprive students of their due process rights guaranteed under the Fourteenth Amendment. (19) In 1997, Congress passed the most comprehensive amendments to the IDEA to date. (20) The amendments included provisions on the discipline of students with disabilities. (21) Many of those provisions simply codified existing case law; others, however, helped clarify formerly opaque areas. (22)

This article will analyze the requirements for disciplining a student with disabilities. It begins with a historical overview of the case law prior to the 1997 amendments to the IDEA. (23) This review will help the reader understand why many of IDEA's current disciplinary provisions developed. Next, the article will review the specific requirements of the 1997 amendments and post-amendment case law. (24) The article concludes with some practical recommendations for educators. (25)

1. THE EVOLUTION OF CASE LAW

   As indicated above, the IDEA did not initially contain any provisions directly addressing discipline. Courts, however, were frequently asked to settle disputes arising out of disciplinary actions. A large body of case law developed from these lawsuits. (26)

   1. Early Lower Court Decisions

      The first court case decided under the IDEA involved discipline. In Stuart v. Nappi, (27) the public school district in Danbury, Connecticut tried to expel a third-year student with a complex learning disability who had been involved in several school-wide disturbances and had a history of behavioral problems. (28) The student's attorney requested a due process hearing under the IDEA. (29) The attorney also obtained a temporary restraining order from a federal district court enjoining the school board from conducting a hearing to expel the student. (30) The court held that an expulsion was a change in placement inconsistent with the IDEA's procedures. (31) The court did rule, however, that school officials could temporarily suspend a disruptive special-education student (32) or change the student's placement to a more restrictive one by following the Act's given procedures. (33)

      In Doe v. Koger, (34) a federal district court in Indiana overturned the Board of Education of the City of Mishawaka's expulsion of a mildly mentally disabled student. The court stated that schools could not expel disabled students whose disruptive conduct is caused by their disability. (35) This rule became known as the manifestation-of-the-disability doctrine. (36) The doctrine implies, of course, that schools can expel a disabled student if the student's misconduct is not related to the student's disability. The court also ruled that schools could transfer a disruptive special-education student to a more restrictive placement as long as proper change in placement procedures were followed under the IDEA. (37) Seven years later, another federal court in Indiana ruled that a school's use of moderate corporal punishment, as allowed by state law, did not infringe on the rights of a student with an emotional handicap. (38) The court noted that the school gave the student the same punishment it would have given any other pupil engaging in similar conduct. (39)

      In S-1 v. Turlington, (40) decided in 1981, the Fifth Circuit extended the manifestation of the disability doctrine. Seven mentally retarded (41) high school students had been expelled for a variety of acts of misconduct. (42) One student requested a manifestation hearing to determine if the student's behavior was related to his disability. (43) The school superintendent determined that since the student was not classified as emotionally disturbed, the misconduct was not a manifestation of his disability. (44) In overturning the expulsion, the Fifth Circuit ruled that the manifestation decision must be made by a specialized and knowledgeable group of persons. (45) If such a group found no relationship between the student's misconduct and disability, (46) and the school expelled the student in accordance with the IDEA's procedures, (47) expulsion was permissible but there still could not be a complete cessation of services. (48)

      A 1985 Fourth Circuit decision illustrated that courts would sometimes stretch to tie a student's misconduct to the student's disability. In School Board v. Malone, (49) a fourteen-year-old male student with a language-related learning disability took part in several drug deals. (50) A committee of special-education professionals met and decided that the youth's disability did not cause him to participate in the drug deals. (51) The school subsequently expelled the student. (52) A district court, however, found that the disability was, indeed, responsible for the youth's behavior. (53) The court found that the student's learning disability resulted in poor self-esteem leading him to seek peer approval by partaking in drug deals. (54) Furthermore, the court found that the boy's learning disability prevented him from understanding the long-term consequences of his actions. (55) The Fourth Circuit affirmed the decision. (56)

      Courts did permit schools to exclude students who posed a danger to others as long as the IDEA's due process procedures were followed. In Jackson v. Franklin County School Board, (57) the Fifth Circuit upheld a Mississippi school district's exclusion of a seventeen-year-old student diagnosed with a psycho-sexual disorder. (58) A youth court had committed the student to a state hospital for treatment. (59) When he tried to return to school upon release from the hospital, school officials refused to admit him and instead offered to pay for an alternative placement. (60) The court upheld the school's right to exclude a student it determined to be dangerous. (61) Almost two years later, however, the Fifth Circuit admonished school authorities for failing to convene a conference when the student was released from the hospital as required under the EHA. (62)

   2. U.S. Supreme Court Decision

      In 1988, the U.S. Supreme Court gave its first ruling on a case involving the discipline of a student with disabilities. Honig v. Doe (63 involved two special-education students, sixteen-year-old John Doe and twelve-year-old Jack Smith. (64) Doe was an emotionally disturbed student in San Francisco who had difficulty controlling his "impulses and anger." (65) Under his IEP, he attended a developmental center for disabled students. (66) Shortly after being placed in the center, he assaulted another student and broke a school window. (67) The center suspended the student for five days and referred the matter to the school district's Student Placement Committee ("SPC"), which, in turn, indefinitely suspended...