Law Professor Lays Out The ABCs For Schools Making Discipline Decisions About Children With Disabilities

FAYETTEVILLE, Ark. - A seventh-grade girl throws a book across the classroom; a fifth-grade boy spills milk on a classmate at lunch for the eighth time this semester; a high school junior assaults a classmate, and school officials find a switchblade in his pocket. If these children have disabilities, do they receive different treatment than their classroom counterparts?

A University of Arkansas law professor explains how school officials could handle each of these situations, if the children involved were disabled, under the 1997 amendments to the Individuals with Disabilities Education Act (IDEA). Her work appears in the current issue of the Arizona Law Review.

IDEA was originally designed to help identify children with disabilities and provide them access to education "so that children don’t end up excluded rather than served," said Terry Seligmann, associate professor of law and director of legal research and writing. At the center of IDEA is an individual education plan (IEP) for each student, administered by a team including school officials, counselors, teachers and parents.

In the 25 years since its inception, IDEA has changed many things about classroom learning for the better, Seligmann said.

"We know so much more about how to help kids learn," she said. "All our kids can get a better education because of the individualized attention to learning styles and teaching approaches modeled by the IDEA."

Recent amendments and regulations under the IDEA address disciplinary situations.

"If a child misbehaves because he or she cannot control behavior, then discipline is not appropriate," Seligmann said. A child with Tourrette’s Syndrome, for instance, should not be punished for shouting out inappropriate words because that behavior is caused by the syndrome and cannot be controlled.

However, in recent years school officials have become concerned about discipline, particularly about issues surrounding suspension and expulsion. Under the original IDEA regulations, a suspension of more than ten days or an expulsion was considered a change of placement. And if a parent contested a change of placement for a disabled child, the child had to remain in the pre-disciplinary classroom setting while the dispute was settled, unless school officials went to court to seek an order based on danger to the child or to others.

Under the amended IDEA regulations, schools have more options for disciplining special needs students, Seligmann said. In her article, she offers officials a blueprint for harmonizing the goals of education and school safety.

"For the most part, this scheme does not leave school officials helpless," she said.

The modified IDEA regulations specifically address issues pertaining to suspension and expulsion. If school officials determine that a child is a danger to himself or to others - if he is violent in the classroom or brings weapons or drugs to school - then school officials can remove the child from that setting until the IEP team members or a state agency official can decide what placement may be appropriate for the child.

If the parent contests this decision, school officials can still appeal and prevent a potentially dangerous child from re-entering the classroom, Seligmann said.

Under the amended IDEA provisions, school systems must provide alternative educational resources for disabled children who have been suspended for more than 10 days or expelled.

Also, if a non-disabled child is suspended, and a parent asks that the child be tested for disabilities, the discipline is still implemented until such testing can be performed, according to the new regulations.

Seligmann emphasized that the number of disabled students suspended or expelled each year is extremely small in proportion to the six million students who received some form of special education services nationwide. Many other, less disputed forms of discipline are implemented long before school officials resort to suspension and expulsion for any student. And alternative school programs increasingly offer a different way to educate students who might otherwise be headed for suspension or expulsion.

The new regulations remain ambiguous about disciplining disabled children who severely disrupt a classroom without creating any physical danger, Seligmann said. If a parent disputes a change in placement for such a child, then the child must remain in the current classroom placement until the dispute is settled.

Disputes of this sort are fairly rare, Seligmann said.

"Most parents will want to try to change things if their kid is not doing well in a classroom," she said. Seligmann proposes some ways to interpret the law to give appropriate relief when there’s no agreement in such a situation.

She offers solutions for each of the classroom situations described above:

The student who threw a book could be disciplined by sending her to the principal’s office, asking to help mend books in the library or sitting at the front of the room. Her treatment would probably be the same regardless of her disability.

The student who has repeatedly disrupted the lunch room may receive detention or a short suspension. If he has not been evaluated for a disability, this may be the time to do it. If he is disabled, the same discipline would apply.

The student who fights and brings a knife to school can be suspended immediately whether or not he has a disability. If he does have a disability and is suspended for an extended period of time, the school must provide alternative educational services. If he is not disabled, the school may continue educational services but is not required to by federal law. Under the new rules, the school can also refer such matters to law enforcement officials.