Today we launch a new feature here at EdLawDaily—Toolbox Tuesday!  As many of you know, I have been conducting all day workshops for over a year now on legal and practical methods of dealing with students who are violent and/or seriously disruptive and in your special education program.  I call it “The Toolbox” because it features ten tools that are available to school administrators under IDEA—our special education law.  For today and the next 10 Tuesdays, we are going to provide a brief intro to each of the ten tools.   I’ll provide some contact information below for those of you who are interested in the Toolbox training.

Today, we offer a little background on why a set of tools is needed in the first place.  So let’s go back to 1975, when Congress first enacted the federal law that we now know as IDEA.

The first version of the law did not directly address student discipline. But it did create a dilemma for school administrators by requiring that schools do two things that are sometimes hard to do at the same time. On the one hand, the law required schools to provide a safe and orderly environment, conducive to learning for all students.  On the other hand, it requires schools to serve all students appropriately, including those with disabilities who commit serious or violent offenses at the school.  Not only does the law require schools to serve all such students, it also requires that services must be provided in the “Least Restrictive Environment” (LRE).

These two duties bump into each other.

This dilemma was squarely presented to the U.S. Supreme Court in Honig v. Doe, the only case involving special education discipline ever decided by the High Court.  In that case, California school officials argued that safety was the overriding concern. Therefore, the argument went, the “stay put” rule did not apply when school officials deemed a student to be dangerous.  Principals and superintendents should be allowed to order the removal, or expulsion of a student who is dangerous.

The Supreme Court flatly rejected that:

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. In so doing. Congress did not leave school administrators powerless to deal with dangerous students; it did, however, deny school officials their former right to “self-help,” and directed that in the future the removal of disabled students could be accomplished only with the permission of the parents, or, as a last resort, the courts. (Emphasis added).

That certainly put it clearly.  Congress “very much meant to strip schools” of the authority they historically enjoyed.  The Court did not think that its decision was leaving school officials powerless.  If the principal believed that a student was dangerous, she could suspend the student for up to 10 school days.  The “stay-put” rule did not apply to such short-term actions.  If a principal believed that a suspension of more than 10 days was called for, he could seek relief from a court.

That was 1988.  Much has happened since then, but the basic tension between two competing duties remains.  Schools must simultaneously maintain a safe and orderly school, while appropriately serving students who may present a risk of danger.

For the most part, this tension is resolved on a case-by-case basis by each student’s IEP Team (ARDC).  The law emphasizes individualized decision making by a group of educators working in collaboration with the parents—the ARD Committee.  The ARDC ultimately has the duty of determining, case-by-case, how to balance the duty to serve in the LRE with the duty to maintain safety.  If educators believe that a student is placed in the wrong setting, they should call for an ARDC meeting and seek a change.  If parents believe that a student is placed in the wrong setting, they should do likewise.

Thus most of the time, this tension will be addressed and resolved through ARDC action.  But in addition, there are things that an individual school administrator—usually the principal of the school—can do to address this tension.

That’s what the Toolbox is all about--ten tools educators can use to simultaneously provide a safe school and a proper placement for each student.

Next Tuesday’s Daily Dawg will be about Tool #1. And we will follow that with the other nine tools over the next nine Tuesdays.

If you are interested in bringing the Toolbox to your district, or your ESC, please contact Haley Armitage at harmitage@wabsa.com.

DAWG BONE:  WHEN DISCIPLINING SPECIAL EDUCATION STUDENTS, IT’S THE “UNILATERAL” POWER THAT IS CURTAILED.