Eliminating or reducing crime in schools, giving school officials greater
disciplinary discretion, and making the rights of disabled students compatible
with the goal of school safety are among the discipline-related issues facing
policymakers.
Terms
FAPE
Free Appropriate Public Education. Federal and parallel state law require
Minnesota to provide disabled students, many of whom have behavioral problems or
are emotionally disturbed, with a free appropriate public K-12 education through
age 21 or until a student completes secondary school, whichever comes first.
IDEA
The Individuals with Disabilities Education Act (20 U.S.C. sec. 1400 et
seq.). A disabled person under this law is one who is mentally retarded, hard
of hearing, deaf, speech impaired, visually handicapped, seriously emotionally
disturbed, orthopedically impaired, or has a health impairment or specific
learning disability that requires special education and related services. IDEA
relies upon procedural safeguards to ensure that a child eligible for special
education services receives the appropriate services.
Section 504 of the Rehabilitation Act of 1973 (29 USC sec. 794)
“Section 504” is a civil rights statute, is
broader and less prescriptive than IDEA, and covers some disabled children not
served under IDEA.
A disabled person under this section is one who has a
physical or mental impairment that substantially limits one or more of the
person’s major life activities; or has a record of or is regarded as having,
such an impairment. The law broadly defines physical and mental impairment.
Major life activities can include learning, walking, breathing, speaking,
working, and caring for oneself, among other things.
Congress intended Section 504 to address employment discrimination by public
entities that refuse to hire disabled persons whose disabilities are unrelated
to the skills the job required.
Student Discipline and FAPE
Disabled students are subject to disciplinary rules and limitations different
from those applicable to nondisabled students to the extent that disciplinary
measures may impact their right to a free appropriate education.
Procedural and Substantive Due Process Protections
Federal constitutional safeguards against arbitrary
government action are known as procedural and substantive due process. Local
school districts may not take disciplinary actions that deny students an
education without adequate due process procedures.
Students are considered to be educationally disabled under the
IDEA if they have a disability covered by IDEA that adversely affects their education.
Section 504 protects disabled students covered by the IDEA, and disabled
students who are not covered by the IDEA but have behavioral disorders,
attention deficit disorders, communicable diseases such as AIDS, or temporary
disabilities.
In Mills v. Board of Education of the District of
Columbia, 348 F.Supp. 866 (D.D.C. 1972), a federal district court held that
the exclusion, suspension, reassignment, or transfer of exceptional students
from public schools without affording them at least a prior hearing or a
periodic review afterwards, was a violation of the federal due process
clause. Congress considered Mills when it adopted the IDEA, which
generated substantial litigation involving the disciplining of disabled
students.
Procedural Due Process
Procedural due process refers to procedural safeguards that
ensure the fairness of disciplinary policies and protect students from being
mistakenly excluded from school. The U.S. Supreme Court in Goss v. Lopez,
419 U.S. 565 (1975), clarified the guidelines for student suspensions:
- Although students are not entitled to a formal hearing
for short-term suspensions of up to ten days, they are entitled to an informal
hearing where they are told of the allegations and allowed to respond to the
evidence;
- Students may be suspended immediately without an
informal hearing if they are a danger to themselves or others or cause a
substantial disruption to the school environment; and
- When students are temporarily removed for disruptive
behavior, they must be given an informal hearing as soon as possible after
being removed, usually within three days.
(A formal hearing, usually held for expulsions, includes notice, an
opportunity to be heard, the chance to present evidence, and a decision on the
record by a fair and impartial third-party decision maker.)
Substantive Due Process
Substantive due process refers to reasonable school rules
that regulate student behavior. Reasonable rules are rational and have a
school-related purpose, and school officials use reasonable means to get
students to comply with them. In Cole v. Greenfield-Central Community
Schools, 657 F. Supp. 56 (1986), a federal district court analyzed four elements in
determining the reasonableness of a school's disciplinary procedures as applied
to a student with an emotional/behavioral disorder:
- Was the teacher authorized to discipline the student who
violated the school rule?
- Did the violated rule fall within the school's
educational purpose?
- Was the violator disciplined?
- Was the discipline proportionate to the violation?
The court, in finding that the school could answer yes to
these questions, ruled that the school's disciplinary procedures were
reasonable.
Suspension, Exclusion, and Expulsion
When a child with an (IEP) is suspended from school for misbehavior that is unrelated to the pupil’s disabilities, the
district must provide the child with special education and related services. A
district must begin reviewing a child’s IEP and the relationship between the
child’s disability and behavior and determine the appropriateness of the child’s
education plan before expelling or excluding the child.
Procedures for Disciplining Disabled Students
In Honig v. Doe, the U.S. Supreme Court ruled that
an indefinite suspension was a change of placement in violation of the IDEA's
"stay-put" provision and that IDEA did not provide for a "dangerousness" exception.
The "stay-put" provision of the IDEA mandates that a child
with a disability remain in his then-current placement pending any proceedings
to change the placement. The purpose of the provision was to prohibit a school
from unilaterally excluding a disabled child from a classroom for dangerous or
disruptive behavior caused by the disability.
The Court reasoned that, because the IDEA did not include
an emergency exception for dangerous students, Congress wanted to deny school
officials their unilateral authority to exclude students with emotional
disabilities.
The Court in Honig pointed out that educators could continue to use
normal disciplinary procedures when dealing with students who endangered
themselves or others: study carrels, time out, detention, the restriction of
privileges, and short-term suspensions of up to ten days. Educators could not
use disciplinary procedures that might result in a unilateral decision for
change in placement. The decision provided a cooling off period during which
educators could initiate individual education plan (IEP) reviews or negotiate
changes of placement with students' parents. Finally, schools could ask a court
to change the placement of a student who presents a real threat to himself or
others.
Permissible and Impermissible Disciplinary Procedures
Disciplinary procedures may be divided into three
categories: permitted procedures, controlled procedures, and prohibited
procedures.
Permitted disciplinary procedures include disciplinary procedures that are part of a
school district's student discipline policy and are commonly used with disabled
and nondisabled students.
Controlled disciplinary procedures include removing a student from a class or an
activity, putting the student in a separate room, or suspending the student
in-school or out-of-school for up to ten school days.
Prohibited disciplinary procedures include expulsions and indefinite suspensions of more than ten
school days that result in a unilateral decision to change a disabled student's
placement. (The U.S. Supreme Court in Honig v. Doe declared that
excluding a disabled student from school for more than ten days constituted a
change in placement, which could only be accomplished by parents agreeing to the
change or a court ordering the change.)
Firearms or Illegal Drugs in School; Alternative Placements
A district may unilaterally place a disabled child in an
alternative setting for up to 45 days if the child: carries a dangerous weapon to school or
a school function; uses, possesses, sells, or solicits illegal drugs at school
or a school function; or inflicts serious bodily injury upon another person at school or a school function. Also, a court may order a change of placement.
IEP (Individualized Education Program)
IDEA requires all children who are eligible for special education to have an individualized education program. The IEP describes a child's current level
of educational performance and an individualized plan of instruction that includes the child's educational goals, the services the child will receive, the staff who will
provide the services, the measures and timelines for evaluating the student's progress, and the extent to which the child will participate in the LRE.
The child's parents and special education professionals working with the child will develop, review, and revise the IEP.
Inclusion/LRE
Children with disabilities must be educated in the least restrictive environment (LRE) to the maximum extent appropriate. School districts bear the burden of showing
that a disabled child should not participate in the regular education program. Criteria for determining whether the regular classroom is the LRE include the potential benefits
to the child, potential disruption to the classroom, and the cost of aids and services.
Related Services
A district must provide children with related services, which encompass supportive services that "may be required to assist a child with a disability to benefit from
special education." Services provided by a physician (other than for diagnostic and evaluation purposes) are subject to the medical services exclusion, but services that
can be provided by a nurse or qualified layperson are not. Cedar Rapids Cmty. Sch. Dist. v. Garret F., 526 U.S. 66, 119 S. Ct. 992 (1999); Irving Indep. Sch. Dist. v. Tatro,
468 U.S. 883, 104 S. Ct. 3371 (1984). A school district may be obligated to pay for a residential treatment setting as a related service in order to ensure that an emotionally
disturbed child receives the educational benefit to which the child is entitled under IDEA. Wayzata Indep. Sch. Dist. No. 284 v. A.C. 258 F.3d 769 (8th Cir. 2001).
October 2014