Any student who punched a teacher in the stomach, knocked a classmate off his chair, and then hit a school secretary with a tennis racquet would likely face severe punishment in the Park Hill school district in suburban Kansas City, Mo.
But after a middle school student in special education engineered that mayhem there several years ago, Park Hill educators were dismayed by legal limits on how they could punish him. The boy had autism, a developmental disorder that can lead to violent outbursts, and it was officially determined that his disability had caused the attacks.
Federal law bars schools from suspending students long term for actions related to their disabilities. It also protects such students from going for long stretches without educational services.
“That’s a double standard there,” Superintendent Gayden Carruth of the 9,350- student Park Hill schools said of the dual systems of discipline for students with and without disabilities. “It is the least fair for a special education student, who gets the notion that because of his disability, he cannot get consequences.”
Stories like the one about the student in Park Hill, anomalous perhaps in its severity but common in its outlines, have many school administrators clamoring for change. Some educators are calling for a more uniform system of discipline for all students. Federal lawmakers have listened, but the debate is far from over.
As Congress prepares to reauthorize the Individuals with Disabilities Education Act—the current name of the landmark 1975 law guaranteeing the nation’s now-6.5 million students with disabilities the right to a free, appropriate public education— to do about the law’s discipline language has become a major point of contention.
Opponents of the push for changes have pushed back, arguing that creation of what some would consider a more “equal” system of punishment would erode the civil rights of students the IDEA was meant to protect.
At its heart, the law does not allow students to be denied a public education because of disabilities. If such students are punished without taking into account those disabilities, many advocates for special education say, that is exactly what will happen.
The last reauthorization of the IDEA, completed in 1997, stretched over three years, mostly because of a bitter debate on just this issue. Before that version of the IDEA became law, the special education statute was mostly silent on discipline.
Some people involved in the 1997 process say that intense negotiation produced a measure that in the end properly balanced the need for schools to punish students with disabilities and the rights of such students. Advocacy groups argued that if students with disabilities missed too much school, their conditions in many cases rendered them particularly ill-equipped to catch up.
Under current law, a school can remove such a student for up to 10 days for any violation of school rules. During those first 10 days of suspension, the school must examine the role of the student’s disability in the misbehavior. Then, if officials determine that the disability was not a factor in the incident, the school may suspend the student for the same length of time as for a student without a disability. But the school must still provide educational services after the tenth day.
On the other hand, if the student’s disability was the cause of the misbehavior, he or she typically returns to school, with educators putting into place new strategies for curbing the student’s bad behavior.
A school can suspend students with disabilities for up to 45 days for such serious infractions as bringing a gun to school, or illegal drug incidents. But alternative educational services still have to be provided after the tenth day.
Many parents, disability- rights advocates, and educators are incensed that members of Congress are trying, in the opponents’ view, to gut those carefully calibrated 1997 provisions. But in the wake of several high-profile school shootings in recent years—not necessarily involving special education students—some administrators and teachers want the freedom to discipline as they see fit to keep their schools safe.
And so the next round in the discipline battle is under way.
The version of IDEA passed by the U.S. House of Representatives April 30 would allow schools to suspend students with disabilities for up to 45 days not only for the most serious infractions, as current law allows, but also for any violation of student codes of conduct. But suspended students would still be guaranteed educational services after 10 days out of school.
Burden of Proof
The new measure would also, in effect, reverse the burden of proof, putting the onus on parents to initiate the investigative process to determine if a disciplinary incident resulted from a disability.
One mother, Megan S. Clugston, of Lansdale, Pa., whose 5-year- old son has autism, said the proposed changes would be unfair to students with disabilities.
“The changes in discipline for children with disabilities are just plain crazy,” she said. “If they had [the same] control over their actions as their typical peers, then they really wouldn’t have the disability, now would they? If the cognition was in place ... then chances are there wouldn’t be different or odd behaviors.”
Opponents of the House bill say they envision that a student with epilepsy, for instance, might be suspended for inadvertently hitting a child during a seizure.
The new measures, they say, would let schools get rid of problem students more easily. In their worst- case scenarios, a changed federal law would enable schools to use infractions as minor as eating in class, or chewing gum, to free themselves of students the schools believe they can’t handle.
In addition, critics say, parents may not be empowered or informed enough to request a review of their child’s punishment.
“The discipline provisions in the House bill strip away all protections for students with disabilities,” said Lynda Van Kuren, a spokeswoman for the Arlington, Va.-based Council for Exceptional Children, an advocacy group for students with disabilities, their parents, and special educators. “At best, they allow schools to give students with disabilities an inadequate education; at worst, they enable schools to get rid of students with disabilities.”
Because contentions that the 1997 amendments set up an unfair system of discipline weighed so heavily on lawmakers at the time, Congress authorized a study to explore the consequences of the new regulatory regime. The resulting 2001 federal report found that students with disabilities who were involved in violence or other serious incidents at school were being punished in the same way, by and large, as other students who committed comparable acts.
About two-thirds of all students who engaged in serious misconduct—which includes acts of violence or incidents involving drugs, firearms, or other weapons—were given out-of-school suspensions, regardless of whether they were in special education programs or not, said the report by the U.S. General Accounting Office, the investigative arm of Congress. (“IDEA Doesn’t Hinder Discipline, Survey Finds,” Feb. 7, 2001.)
But some administrators, like Ms. Carruth, the chairwoman of the American Association of School Administrators’ federal policy and legislative committee, say having two systems of discipline sends the wrong message.
“As part of the instructional process, students need to learn that there are consequences for their conduct,” she said.
“There is a double standard,” she continued. “Given that you aren’t going to see services to students with disabilities stopped during suspensions, I don’t know why the consequence can’t be the same ... even if it is related to their disability.”
That view assumes, other observers say, that all students in special education would have the capacity to understand what they did wrong and learn lessons from the consequences.
Those who disagree say a student’s disability must be a factor in determining punishment. And among those disagreeing, it seems, is President Bush.
When the House passed its version of the IDEA in April, President Bush’s response was mostly supportive, with one notable exception. In a “statement of administration policy” issued April 30, a written reaction to the bill, the president said schools should consider students’ disabilities when disciplining students who violate school codes of conduct.
The Senate version of the IDEA unveiled last week and supported by the Republican and Democratic education committee leaders, maintains the requirement for schools to examine the role of students’ disabilities in their behavior. (“Senate’s IDEA Bill Absent House’s Discipline, IEP Changes,” this issue.)
While the debate continues on Capitol Hill, the discussion on discipline echoes in schools as well.
Some teachers believe the existing system of discipline for students with disabilities is fair, while others do not, said Patti Ralabate, the professional associate for special needs for the National Education Association, the nation’s largest teachers’ union.
“In some cases, the discipline protections are unfairly applied,” Ms. Ralabate said. “You have high school kids saying to teachers, ‘You can’t do anything to me, I am in special education.’ You have some cases where two kids strike another kid; one is in special education and was back in the classroom the next day. And the other student, he or she was out if they were not [in special education].
“These situations lend themselves to people feeling like it is not fair.” Still, she said, the NEA believes the House version goes too far.
Under current law, schools are required to investigate disciplinary incidents in a process known as “manifestation determination” to establish whether students’ misbehavior was due to their disabilities. The process includes a review of how school officials are meeting students’ needs.
Bruce Hunter, a lobbyist for the Arlington, Va.-based American Association of School Administrators, said those costly and time-consuming reviews are not always necessary, yet schools under the law must conduct them.
Ms. Carruth, the Park Hill superintendent, said that in the case of the middle school student who attacked school personnel and a fellow student, it took educators about nine hours after each of the three incidents to come to the same conclusion: His disability was responsible.
In the eyes of school administrators, Mr. Hunter said, the law assumes that the bad acts of a child in special education are related to a disability until proven otherwise.
“Now schools must prove that there is no connection between disability and behavior,” he said. “It puts us at a tremendous disadvantage. ... If it comes back, it would not be a good thing.”
If a deaf student brings drugs to school, in one “for instance” administrators point to, why should the school go through a review process to determine if he or she acted out of his or her disability?
But others say the process of “manifestation determination” is about more than the role of disability in a student’s behavior. It is about the role of the school.
In each case, the review panel must answer difficult questions. Is the student’s individualized education plan—required for every student with a disability— being handled appropriately? Does the student have the ability to control his or her behavior? And finally, was the discipline incident a manifestation of his or her disability?
Dan Losen, the legal and policy research associate for the Harvard-based Civil Rights Project, said that if the manifestation- determination process ceases to exist, so will school accountability.
“Schools won’t ask themselves if they provided support and services,” Mr. Losen said. “That question is off the table. It is the question of whether the school failed.”
The proposed changes to the law are shortsighted, Mr. Losen argued. The most effective changes could be handled from the front lines of education, he said. Teachers should receive better training, for example, in strategies to handle disruptive students, he added.
Ms. Ralabate said the NEA hopes Congress will craft changes to the IDEA that will simplify the discipline process along with the task of determining whether a student’s disability played a part in misbehavior. But she offered no specific ideas on how federal lawmakers—or school officials—can strike the perfect balance.
“It’s very complicated for educators,” Ms. Ralabate said. “It’s hard to divide out what is a result of disability and what is just misbehavior.”