The U.S. Supreme Court has heard only one case that involved the discipline of students with disabilities—Honig v. Doe, decided in 1988. The Court held that Congress had intentionally stripped school officials of the “unilateral” authority to exclude students with disabilities from school. School officials could, according to the Court, suspend kids for up to ten days (cumulatively) during the school year. But anything above that number would require another party to approve the exclusion, usually the IEP Team (ARD). If the school needed immediate assistance in dealing with a dangerous student, it could seek assistance from the local state or federal court.
The Wayne-Westland Community Schools in Michigan did just that, and the case is instructive as to what kind of evidence a school would need to justify the immediate exclusion of a student from the IEP placement. Wayne-Westland got a TRO (Temporary Restraining Order) on October 9, 2014, followed by a Temporary Injunction on October 16. The Injunction will keep the student away from any school facility until the IEP Team can meet and discuss a change of placement. Even if the parent challenges a change of placement and invokes the “stay put” rule, the Injunction will keep the student out of school for awhile.
So what kind of evidence did the school present? In a case like this, the school faces a heavy burden of proof. It must show that maintaining the current placement is substantially likely to result in injury to students or staff. To convince a judge of that, you usually need evidence that the student has already injured someone.
Wayne-Westland had that evidence. The evidence showed that the student was a big kid—6 feet tall, 250 pounds. In one month in the spring of 2014 he 1) physically attacked a student and several staff members, spitting at and kicking them; 2) “menaced” two staff members with a pen held in a stabbing position and refusing to put it down when told to do so; 3) punched a student; 4) punched the principal; 5) threatened to rape a female staff member; 6) punched another staff member in the face. Later in the semester, the student attacked a security liaison. He was told to leave the building. When he attempted to return, four staff members held the door closed to keep him out. Since the student would not leave the school grounds, the entire school was placed on lockdown.
When school resumed in the fall of 2014, the student 1) threatened to bring guns to school to kill staff members; 2) made racist comments toward African American staff members; and 3) punched the director of special education in the face.
That was enough to convince the court that maintaining the student in the current placement posed an imminent threat. The school had plans to continue the boy’s education through Virtual Academy, with a staff member available to help him and answer questions by phone or email. The court found that plan to be sufficient.
Prior to 1988 a student like this one would probably have been expelled from school. That is no longer an option. The school has a continuing duty to provide a FAPE—Free Appropriate Public Education. But as this case indicates, the school can seek immediate assistance from a court to move a dangerous student off campus.
The case is Wayne-Westland Community Schools v. V.S., decided by the U.S. District Court for the Eastern District of Michigan on October 16, 2014. We found it at 64 IDELR 139.
DAWG BONE: IF YOU NEED IMMEDIATE RELIEF, YOU MAY NEED TO GO TO COURT.