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Va. Is Ordered To Serve Expelled Spec.-Ed. Students

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Washington

In a closely watched case, a hearing officer for the Education Department has ruled that the state of Virginia must continue to provide educational services to special-education students who are expelled or suspended from school for reasons unrelated to their disabilities.

The initial ruling--which still must be reviewed by the Secretary of Education and could eventually be contested in court--addresses a longstanding dispute between federal and state education officials over the interpretation of the Individuals with Disabilities Education Act.

The law guarantees all disabled children a "free, appropriate public education," and federal officials contend that schools must serve those students--in a public school or an alternative setting--regardless of their behavior.

Virginia officials and other critics argue that the policy sends the message that students with disabilities do not have to face consequences for their actions.

"The issue is fundamental," William C. Bosher Jr., Virginia's superintendent of public instruction, said last week. "We need some consistency in the expectations for all our young people."

The issue has gained a higher profile in recent years as states have enacted laws designed to deter violence in schools. It promises to be a hot-button topic when Congress begins work to reauthorize the I.D.E.A. later this year. (See Education Week, 11/30/94.)

While state officials have complained about the disciplinary policy before, Virginia is the first state to jeopardize its federal funding by challenging it. (See Education Week, 5/11/94.)

Matter of Interpretation

The dispute arose last year, after the state published some new regulations that drew the attention of disability-rights advocates. State officials maintain that the rules merely codified a longstanding policy of allowing school districts to decide the fate of special-education students who are suspended or expelled for disciplinary violations unrelated to their disabilities.

Federal officials threatened to withhold roughly $58 million in federal special-education money because Virginia refused to change that policy. The state filed suit in March 1994 in the U.S. Court of Appeals for the Fourth Circuit, which ruled that the case had to go through administrative appeals before being considered by the courts. This month's ruling, by one of several part-time hearing officers who handle such cases, is part of those proceedings.

The officer, Robert D. Dinerstein, a law professor at American University here, acknowledged in his decision that the I.D.E.A. and its regulations do not explicitly preclude schools from stopping educational services for the students at issue in the case. But he ruled that since the I.D.E.A. also does not include any exceptions to its sweeping mandate, federal officials' interpretation is correct.

The U.S. Supreme Court has not addressed the suspension of services to special-education students whose disciplinary problems do not stem from their disabilities. But in 1988, the Justices ruled in Honig v. Doe that schools cannot suspend for longer than 10 days students whose behavior problems do stem from their disabilities and that their educational services must continue.

Significant Case?

Should Virginia officials appeal to the courts, the case could prove significant, said Perry A. Zirkel, a professor of education and law at Lehigh University.

"School districts are looking at the almost intractable problem of trying to match the nation's zero-tolerance policy for certain behaviors with the zero-reject philosophy of the I.D.E.A.," Mr. Zirkel said.

Bruce Hunter, the senior associate executive director of the American Association of School Administrators, predicted that the ruling will increase the pressure on Congress to amend the I.D.E.A.

"I can't imagine that the Education Department would be able to issue the same ruling in a year from now," he said.

Mr. Bosher, the Virginia schools chief, said he was eager to appeal, but noted that other state officials involved in the case had not made a final decision as of last week.

Over the next few weeks, both sides are allowed to file comments on the hearing officer's decision, which Secretary of Education Richard W. Riley then will decide to uphold or modify, ending the administrative process.

Federal officials released the threatened funding last year, but the hearing officer ruled that it is within the Education Department's authority to withhold future I.D.E.A. money until Virginia complies with the law. According to Steven Y. Winnick, the department's deputy general counsel, the department would not make such a move at least until the Secretary makes the ruling final.

As required by the Fourth Circuit court, the state has assumed responsibility for educating students affected by the case until it is resolved. Estimates of their number range from 126 to 153, according to Mr. Dinerstein's decision.

Judith E. Heumann, the Education Department's assistant secretary for special education and rehabilitative services, said last week only that she was "satisfied" with the ruling.

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