Throwback Thursday! Let’s talk about IDEA and special education discipline

Early in my legal career I frequently told a lame joke:  (some of you may be thinking: nothing has changed!)  The joke goes like this:

How many educators does it take to change a light bulb? And the answer is: One—unless the light bulb has a disability. Then you need an entire Committee.

The point of the joke, of course, was to emphasize that decision making about students with disabilities is not to be made by a single individual, but rather, by the student’s ARD Committee.

This is true with regard to student discipline as well.  The Supreme Court has decided only one case involving the discipline of students with disabilities, so it’s pretty easy to identify our Golden Oldie with regard to special education and discipline: Honig v. Doe.   In that case, the school officials argued that their responsibility for safety was an overriding concern, and thus, when a student was deemed dangerous, they should have the authority to remove that student from school, no questions asked.  The Supreme Court emphatically rejected that argument:

We think it clear, however, that Congress very much meant to strip schools of the unilateral authority they had traditionally employed to exclude disabled students, particularly emotionally disturbed students, from school.

That’s a quote from the Supreme Court’s opinion, which goes back to 1988.  Notice the word “unilaterally.” The Court pointed out that its decision was not going to leave assistant principals powerless.  There were certain things that still could be done “unilaterally” such as a short term removal of the student. Thus a three-day suspension, for example, was still an option that could be done “unilaterally.”  In fact, later in the same opinion, the Court gave its approval to what we now call The FAPE-Free Zone, meaning the ten cumulative days during a school year when campus administrators can unilaterally remove students with disabilities from the placement called for in the IEP.  Beyond those ten days, “unilateral” action is restricted, even when the student is dangerous.

That was 1988. Since then, Congress has changed the law to add some situations in which you can order a student’s removal unilaterally. These situations are usually referred to as the “special circumstances” offenses of drugs, weapons and the infliction of serious bodily injury.  While the principal can order the immediate removal of a student under these circumstances, she still needs to convene an ARDC meeting as well. The ARDC is required to conduct a manifestation determination and make sure that the student continues to receive an appropriate education.