Not a Bad IDEA: Discipline and Due Process Get a Fair Hearing
By Stephen Rosenbaum
In the Individuals with Disabilities Education Act of 1997 (IDEA), Congress has combined educational common sense with due process protection. The great public debate that pitted school administrators against students and families was over procedures for suspending and expelling kids labeled as "dangerous" or "disruptive." In zealous pursuit of policies proclaiming "zero tolerance" of weapons and drugs, many school leaders had lost sight of their mission as educators. In the end, the congressional reauthorization of IDEA strikes a balance between maintaining safe schools and safeguarding the education of students with learning disabilities, emotional disturbances, mental retardation, and other disabilities (20 U.S.C. § 1415(k)). In an exhaustive rulemaking process, the U.S. Department of Education spent almost two years reviewing public comments on discipline and other aspects of IDEA. A final rule was issued in March 1999 (64 Fed. Reg. 12,406).
Too many of these disabled youngsters are being shifted from classrooms to juvenile courtrooms, moving further and further from the "least restrictive environment" that is the cornerstone of special education pedagogy and law. The right of access to a free and appropriate public education is meaningless for children with behavior problems if that access is not accompanied by a program for managing their behavior. The IDEA amendments highlight the duty of school authorities to address problem behavior as both an educational matter and a strategy for preventing discipline. Research has shown, says the Office of Special Education Programs, the Education Department’s disability programs office, that if teachers and aides have the knowledge and expertise to apply appropriate behavioral interventions, future behavior problems can be greatly reduced if not altogether avoided.
For the first time, the revised statute and regulations set out strict procedures for removing special education students from schools and ensuring that any discipline is for conduct unrelated to a student’s disability. In this, the legal scheme reflects earlier Supreme Court law on the due process rights of special education students ( Honig v. Doe, 484 U.S. 305 (1988)) and administrative interpretations by the federal education department on the need for continued schooling for expelled students.
The amendments define an array of disciplinary actions that constitute a "change in placement." It is this change in placement that sets into motion the student’s right to notice, counsel, and a hearing. A placement change may range from an entirely new setting to an interim alternative to suspensions of ten days or less. When the placement change is for more than ten days, a meeting of the individual educational plan team is to be held. School officials must make a meaningful attempt to involve parents in the process of determining a new setting where a student can continue his or her education, after reviewing alternatives and data used to evaluate various alternatives.
Before selecting a new placement, however, the team must make a "manifest determination," of whether the youngster’s misconduct is a manifestation of his or her disability? If the behavior is determined to be a manifestation of disability, the student can be neither suspended for more than ten days nor expelled, but may be assigned a new educational placement. Where disability plays no role in the misconduct, the student stands in the shoes of a nondisabled peer and is subject to the usual disciplinary consequences.
The team’s determination is no easy matter, as it must sift through evaluation and diagnostic results, information furnished by the parents, and the young person’s observations. The team must make a finding of disability manifestation if the student’s disability impaired his or her ability to control behavior or understand the impact and consequences of that behavior. Significantly, the team must also find manifestation where behavior intervention strategies were not properly implemented or where the student’s educational plan or placement was inappropriate vis-à-vis his or her behavior. A youngster not previously identified as eligible for special education may also be afforded these procedural protections if the school had knowledge before the misconduct of possible eligibility for services under IDEA.
Where misconduct involves dangerous weapons or illegal drugs, administrators have more liberty to remove students if there is a risk to public safety and no effective means of minimizing that risk in the current educational setting. In instances of other dangerous behavior—whether disability-related or not—school authorities can petition an administrative hearing officer for a time-limited alternative placement. Again, the interim placement may be ordered only where there is a risk of injury to the child or others, and where the district has attempted to minimize that risk. As the Office of Special Education Programs has observed, these formal processes come into play only where schools and parents are unable to reach an agreement about how to respond to a student’s behavior.
These procedures reflect not only the due process protections that have become a fixture of the schoolhouse in recent decades, but a strong incentive for educators to use behavioral intervention strategies and other "supplementary aids and services" before kicking kids outside the schoolhouse gate.
Strengthening and clarifying educational and legislative objectives is only the first step in implementing a refurbished IDEA. Keeping young people in school will require the vigilance of parents, teachers, lawyers, and other advocates.
Stephen Rosenbaum is a staff attorney with Protection & Advocacy, Inc. in Oakland, California, a nonprofit law office representing persons with disabilities. The father of a teen with developmental disabilities, Mr. Rosenbaum serves on a special education advisory committee of his local school district and is an adjunct professor at the University of California, Berkeley.