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Justices Hear Suit on Violent Disabled Boys

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Washington--Members of the U.S. Supreme Court indicated last week that a technicality may prevent them from deciding whether school boards must keep violent and disruptive handicapped students in their current classrooms pending the completion of hearings on their behavior.

During arguments in Honig v. Doe (Case No. 86-728), a suit stemming from attempts by San Francisco school officials to expel two handicapped male students in 1980, a majority of the Justices devoted most of their questions to the issue of whether the case still presents a "live" controversy.

The first student, identified in court records as John Doe, is now 24 years old and is no longer eligible for special-education services. The second, identified as Jack Smith, is 22 and remains eligible for services under California law, but he no longer resides in San Francisco and his lawyer could not say whether or not he plans to return to school.

"So for this case to recur, Smith would have to move back to San Francisco and re-enroll in school, is that right?" Associate Justice Antonin Scalia asked the students' lawyer, Sheila N. Brogna.

"And we'd have to assume," he continued, "that school officials would be foolish enough to place this person with this record of violent behavior back in a situation that they would not be able to handle. Now that isn't very likely, is it?"

Chief Justice William H. Rehnquist and Associate Justices John Paul Stevens, Thurgood Marshall, and Sandra Day O'Connor followed similar lines of questioning. Together with Justice Scalia, they could provide the five votes needed to declare the case moot.

Should that occur, the ruling in the case by the U.S. Court of Appeals for the Ninth Circuit--that interim suspensions of a short, fixed duration are permissible under the federal special-education law, P.L. 94-142, but that those of an indefinite length are not--would be left intact. The ruling, however, would be binding only in the Ninth Circuit, which comprises nine states and two territories.

A decision to declare the case moot would also leave standing the appellate court's ruling that states have a responsibility under the federal law to provide direct services to handicapped children when districts are unable or unwilling to do so.

The Honig case began seven years ago when San Francisco officials suspended and then began proceedings to expel the two emotionally disturbed students. The first student, Mr. Doe, was involved in a fight with another student and broke a window; the other, Mr. Smith, had been involved in "a number of incidents of misbehavior," according to court records, including making sexual advances to a female student and extorting $6 from a male student in a bathroom.

Lawyers for the students have argued that when disruptive behavior is a manifestation of a student's handicap, the special-education law requires districts to keep such students in their current classrooms until administrative hearings are completed or unless the students' parents agree to a change.

They also have contended that states have a responsibility under the law to provide direct services to such students when districts refuse to do so, as in cases in which students are suspended or expelled.

A federal district judge ruled in favor of the two handicapped students in 1984. The Ninth Circuit Court upheld the lower court's ruling in July 1986.

The San Francisco school district decided not to challenge the appellate court's decision and dropped out of the case. The State of California, which was ordered by the district court to provide services directly to the students, appealed the ruling. The Reagan Administration requested and obtained permission to offer arguments in the case on the state's behalf.

"Our position is that you do not abandon or warehouse handicapped children, that you do not refuse to provide them with services," the state's lawyer, Asher Rubin, told the Justices. "What we are saying is that the worst thing in the world you could do is to put a violent child back in a classroom where he assaulted another child and where he may do it again."

"But didn't the Congress say a child must stay put in his current placement?" asked Justice O'Connor. "If we say that there is an exception to this rule, couldn't districts evade their responsibility" to educate handicapped children "by labeling many more of them dangerous?"

"We don't think you would be creating a new exception," Mr. Asher replied. "We think the exception is implicit in the statute."

"Call it what you will," Justice O'Connor responded. "You still want us to read into the statute something that is not there."

Glen D. Nager, the Justice Department lawyer who offered the Administration's arguments, told the Court that the federal government believes the Ninth Circuit Court "misconstrued" the intent of the special-education law.

If the High Court upholds the appellate court's ruling that potentially dangerous handicapped children cannot be removed from their classrooms until the completion of administrative hearings, he said, "many districts will not put them in those classrooms in the first place."

Mr. Nager added that it was incorrect for federal courts to order states to provide services to students when districts default in that responsibility. "It is appropriate for the courts to put the gun to the heads of the districts, and not to the heads of the states," he said.

Ms. Brogna, the students' lawyer, argued that the "bottom line" in the case was that the San Francisco officials wanted "unilateral" authority to make decisions about her clients' educational placements.

"They want to be allowed to select programs themselves without the4input of parents," she said. "Many districts would like to return to the pre-1975 days when they could decide unilaterally how to place handicapped children."

"In this case, the children were turned out of school, were not provided with tutors, and were proposed to be excluded," she continued.

"We need to look at the idea that, in passing this law, Congress was aware of the history of discrimination against the handicapped," she said, adding that "what the state asks for here could result" in the exclusion of handicapped children from public schools again.

If the Court decides to rule on the merits of the case, its decision will probably be handed down by the end of June. If, however, it decides to declare the case moot, its decision could come much sooner.

In other action last week, the Court:

Agreed to review a federal district judge's ruling last April that barred the U.S. Department of Health and Human Services from awarding grants to religious organizations for demonstration programs designed to encourage chastity among teen-agers.

The Reagan Administration had asked the Justices to bypass normal procedures and hear the case, Bowen v. Kendrick (Nos. 87-253, 87-431, and 87-462), without it having first been considered by a federal appeals court. The Court is expected to schedule arguments in the suit for early next year.

The district judge ruled that the provision of federal funds to church groups under the Adolescent Family Life Act of 1981 violated the First Amendment's prohibition against government establishment of religion.

Heard arguments last week in a suit challenging the constitutionality of an Oklahoma law that permits the execution of minors convicted of murder.

Lawyers for William Wayne Thompson, who was 17 in 1984 when he was sentenced to death for the murder of his former brother-in-law, charge that such laws violate the Eighth Amendment's ban on cruel and unusual punishment. There are 30 other death-row inmates nationwide who were convicted of capital offenses while they were still minors.

The Court is expected to hand down its decision in the case, Thompson v. Oklahoma (No. 86-6169), by the end of June.

Declined to review a ruling by the Ohio Supreme Court last March that upheld a state law requiring parents who want to teach their children at home to first obtain approval from local school officials. The parents who filed the suit, Schmidt v. Ohio (No. 87-62), argued that the law violated their First Amendment right to free exercise of religion.

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