Federal Judge's Decision Allows the Suspension of Disabled
School officials may have broader authority, with fewer procedural restraints, to discipline handicapped students than had been widely assumed, a recent federal-court decision suggests.
A U.S. district judge in Peoria, Ill., ruled on Feb. 4 that the Peoria school board was within its rights when it suspended David Buckley, a 17-year-old with a learning disability, for "verbal abuse" of a teacher. The Peoria board gave the student a standard disciplinary hearing--at which the hearing officer ruledthat the misbehavior was not linked to his learning disability--but did not go through the committee procedures required by federal law when a handicapped student's educational placement is changed.
At least three federal courts have ruled that the expulsion of handicapped students constitutes a change of placement, but the Peoria case is believed to be the first to deal with short-term suspension.
The most widely cited federal-court ruling on discipline of handicapped students came last year, when the U.S. Court of Appeals for the Fifth Circuit ruled in S-1 v. Turlington that school districts may exclude handicapped students from school only after a full change-of-placement proceeding; only if the misbehavior is demonstrably unrelated to the disability; and only if some special-education services continue to be provided to the child after he or she leaves school. (See related story below.)
Because David Buckley was threatened with expulsion, the judge should have based his opinion on the standards set forth in S-1, the family's lawyers argued. But Judge Robert D. Morgan of the Central District of Illinois found that the circumstances were different enough that the S-1 principles were largely irrelevant.
While the decision by Judge Morgan does not directly contradict earlier federal-court cases on disciplinary exclusion of handicapped students, it draws a sharp distinction between a five-day suspension meted out "for a flagrant offense" and an expulsion or long-term suspension, classified in earlier court decisions as a change in educational placement subject to elaborate procedural protections under federal law.
Further, Judge Morgan did not accept the contention that the student's outburst might have been precipitated by his learning disability, an assumption frequently made in disciplinary cases involving disabled students.
"There can be no doubt whatsoever that, if there was any justification whatsoever for David being in the 11th grade on any terms, he knew better, and that he desperately needed to be brought up short for saying what he did to his teacher," the judge wrote in Board of Education of the City of Peoria, School District 150 v. Illinois State Board of Education.
"Any theory that some harm of the brief interruption of classroom work could outweigh the educational value of the suspension here can only be recognized as pure imagination, or a feeble attempt at rationalization of a preconceived notion that handicapped students, whatever the handicap, are free of classroom discipline. That is not the law."
Swore at Teacher
The incident that spurred the lawsuit took place on Nov. 17, 1980, when David Buckley, who was receiving special-education services but was partially "mainstreamed," swore at an auto-mechanics teacher who ordered him to stay after school for disrupting the class.
After he was given a five-day suspension--which, his lawyers say, was a precursor to expulsion proceedings--his parents appealed to the state board of education.
Donald G. Gill, Illinois superintendent of education, overturned the suspension and ordered it expunged from the student's record, saying that Peoria school authorities had not proven there was no relationship between the learning disability and the outburst.
"We must, therefore, [assume] that the long-term detrimental impact of the child's handicapping condition in some way affected the child's behavior and emotional outbursts which precipitated disciplinary action," Mr. Gill wrote, basing his order in part on previous court cases. "... It is our opinion that an exceptional child cannot be excluded from special education as a result of such conduct. Further it is our conclusion, consistent with [state] rules, that the exceptional child can be suspended only when he consti-tutes a danger to himself, others, the school faculty, or the school property."
Judge Morgan rejected Mr. Gill's logic as "sophistry" and "fallacious."
"There was neither expulsion here nor termination of educational services," the judge wrote. "Such a brief period of enforced absence, possibly equivalent to that often caused by a common cold, simply cannot reasonably be described as a change in a handicapped child's educational placement or termination of educational services to him."
Both the Buckley family and the state are considering an appeal of Judge Morgan's decision.
"One of the main factors [in deciding whether to appeal] will be what sorts of consequences there are for other people, because this is a relatively untested area," said Paul Madison, a lawyer representing the Buckley family. Mr. Madison is on the staff of the Guardianship and Advocacy Commission, a state agency created in 1979 to protect the rights of the mentally handicapped.
Jacob A. Rose, a Florida lawyer who is representing the plaintiffs in the S-1 case, also contends that a short-term suspension is a change in educational placement and should be subject to review by the student's placement team.
Because it is so difficult to expel disruptive students who are handicapped, some school systems instead mete out a series of suspensions or repeatedly place students in "time-out rooms" with no special-education teachers, he said.
Usually, he said, the punishments are handed out for persistent misbehavior that "indicates something is wrong, that the program is not suited to the child."
"Repeated suspension is the way a lot of handicapped students have been excluded from educational programs," Mr. Rose asserted. "Any short-term suspension or anything that disrupts the child's education is a change in educational placement."