LEGAL UPDATE PAPER:ADDRESSING DISCIPLINE AND STUDENTS WITH DISABILITIES

Monica Martin, Dwannal McGahee and

Katherine NuttGeorge Mason University

Legal Context

Although students with disabilities are not exempt from the disciplinary rules of a school, there are specific guidelines required, especially if the discipline involves long term suspensions or even expulsion. “When determining whether or not to use a long-term suspension or expulsion, the school must convene the student’s IEP team and other qualified personnel to determine the relationship between the student’s misbehavior and the disability” (Yell, p.415).

Under IDEA, students with disabilities are afforded additional safeguards in regards to discipline and educators must:

Be aware of all state and local policies in regards to discipline.

Inform parents of school discipline policies. Evaluate on a continuous basis all disciplinary

procedures. Maintain proper documentation. Collect data to determine if behavior procedures

(such as Behavior Intervention Plans) are having the desired effect on the students.

Disciplinary procedures must be reasonable and be for legitimate educational purposes and cannot deny a student FAPE (Yell, 2006).

Legal and Ethical Critique of Cases

A.W., a minor, by his parents and next friends, Debra Wilson and Christopher Wilson, et al., Plaintiffs, v. Fairfax County Public Schools, and Jack D. Dale, I his official capacity as Superintendent of Fairfax County Public Schools, Defendants, Eastern District (4th Cir. 2008)

1:07cv1182(GBL)ISSUE: Did the plaintiffs exhaust the administrative remedies

available under IDEA?

HOLDING: Defendants motion to dismiss was granted due to lack of

subject matter jurisdiction.

A.W. cont.

ANALYSIS: The Plaintiff must exhaust their administrative remedies

afforded by IDEA, including due process hearings before bringing a claim in federal court. Because the plaintiffs had not sought or had a due process hearing, the court does not have subject matter jurisdiction.

LEGAL DOCTORINE: IDEA provision 20 U.S.C. §1415(l)(2) Title 8 of the Virginia Administrative Code. 8 VAC 20-80-

76.SIGNIFICANCE Even if suit is brought under another provision, plaintiffs

must first exhaust all administrative remedies available under the IDEA. 20 U.S.C. §1415(l). Parents may not circumvent the exhaustion requirement of the IDEA simply by filing suit under another statute.

AW, by his parents, Debra D. Wilson and Christopher D. Wilson, Plaintiff-Appellant, v. Fairfax County School

Board, Defendan-Appellee (4th Cir. 2004)

ISSUE: Was the “stay put” provision in IDEA violated?

HOLDING: The court affirmed the judgement.

ANALYSIS: As required by the IDEA, school officials convened a Manifestation Determination Review

("MDR") committee in order to determine the extent to which AW could be disciplined. Under the IDEA, a disabled student may not be disciplined by his school unless an MDR

committee concludes that the student's IEP was appropriate relative to his qualifying disability and that the student's disability did not inhibit his capacity either to appreciate that his behavior was inappropriate or to conform his behavior to expectations. See 20 U.S.C. § 1415(k)(4) (2000).

On the ninth day of AW's suspension, the MDR committee concluded that AW's IEP appropriately compensated for his emotional disability and that AW's disability did not prevent him from either understanding that his actions violated school rules or behaving appropriately.

  

A.W. cont.

This finding opened the door for the FCSB to discipline AW as it would any other student. See 20 U.S.C. § 1415(k)(5) (2000).

The following day, however, a FCSB administrator rejected the expulsion recommendation from the administrators of AW's school and directed instead that AW be transferred to the GT program at another FCSB elementary school for the remainder of the school year.

It is undisputed that AW would continue to receive the one hour per week of special education at this new location.

 LEGAL DOCTORINE: IDEA provision, 20 U.S.C. § 1415(k)(4) (2000).

SIGNIFICANCE The court found that the transfer decision did not violate the

"stay-put" provision because the board's decision to change the location of the student's assignment did not result in a change in educational setting. The court held that the term "educational placement" referred to the overall educational environment rather than the precise location in which the disabled student was educated.

  

Kevin Fitzgerald, et al., Plaintiffs, v. Fairfax County Public School Board, Defendant, Eastern District of Virginia, Alexandria, Division

Civil Action No. 1:07cv1117

ISSUE: Did FCSB violate IDEA’s procedural provisions in

conducting the MDR hearing?HOLDING: The board’s motion was granted and the plaintiffs motion

was denied.ANALYSIS: IDEA § 1415(k) does not name specific individuals who

must make a manifestation determination concerning a disabled child, but instead defines the attendees as "the local education agency, the parent, and relevant members of the IEP Team.”

LEGAL DOCTORINE: IDEA provision §1415(k)(1)(E)(i).

Fitzgerald cont.

SIGNIFICANCE Given that no procedural violations occurred, it

follows that the plaintiff was not denied a FAPE based on any of the alleged violations.

The remaining question is whether the IHO's affirmation of the MDR committee's manifestation determination was correct. In this regard, a district court must engage in a modified de novo review, giving due weight to the administrative findings but ultimately making an "independent decision based on the preponderance of the evidence." Doyle v. Arlington County Sch. Bd., 953 F.2d 100, 103 (4th Cir. 1991). The application of this standard compelled the conclusion that the determination of the MDR committee, upheld by the IHO, was correct.

A.P. a minor, individually and by her parents and legal guardians, A.P. & M.S., Plaintiff, v. PEMBERTON TOWNSHIP BOARD OF

EDUCATION, Defendant.Civil No. 05-3780 (RBK)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY2006 U.S. Dist.

ISSUE: IDEA violation- it was argued that the judge who ruled in

favor of returning A.P. to school was improper, since 20 U.S.C. §1415(l)(2) authorizes school districts to suspend students with disabilities for up to 45 days for possession or use of drugs at school, regardless of whether the conduct was related to the student’s disability.

HOLDING: Defendants motion to dismiss was granted due to the

IDEA’s outline of school authority to suspend, expel, or otherwise alter the educational placement of students in receipt of services under the IDEA.

A.P. Cont.

ANALYSIS: Even students with disabilities may be held to the same

disciplinary measures regardless of whether the behavior is determined to be a manifestation of the child’s disability, in cases where a child possesses or uses illegal drugs.

LEGAL DOCTORINE: IDEA provision 20 U.S.C. §1415(l)(2)

SIGNIFICANCE: Students with disabilities will be held accountable for possession

and/or use of illegal drugs in the same manner that non-disabled students.

Even if the MDR is found to have a relationship between the student’s disability and behavior, drug use and possession is to be handled with a zero tolerance policy for all students.

ALEX R., a minor, by and through BETH R., and BETH R., his mother and next friend, Plaintiffs-Appelllants, v. FORRESTVILLE VALLEY COMMUNITY UNIT SCHOOL DISTRICT #221, Defendant-

AppelleeNo. 03-3858

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT375 f.3D 603; 2004 U.S. App.

ISSUE: Was Alex provided an IEP that was sufficient to meet his

needs.

HOLDING: The U.S. Court of Appeals affirmed the judgment of the

district court that the school district provided Alex with adequate IEP’s.

Alex R. Cont.

ANALYSIS: The school district, not only provided the student with

an adequate IEP, but also properly took into account the different aspects of the student’s disability, including his outbursts in the classroom. Frequent monitoring and revisions of the IEP were made in order to meet the student needs, as well as staff training.

LEGAL DOCTORINE: IDEA provision 20 U.S.C.S. §1400 et seq.

SIGNIFICANCE As long as a valid IEP (including an FBA and BIP) is

provided for a student with disabilities and the education of said student is approached in good faith, there is no wrongdoing on the part of the school district.

 WILLIE GRIFFIN, II, DOROTHY GRIFFIN and WILL GRIFFIN, III,

PLAINTIFFS VS. CROSSETT SCHOOL DISTRICT, INCCASE NO. 07-CV-1015

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF ARKANSAS, EL DORADO DIVISION

2008 U.S. Dist.

ISSUE: The plaintiff (Willie Griffin) charged that he was discriminated against

during a disciplinary issue as he is African American and a Caucasian fifth grade student committed a similar offense but had different sanctions held.

 HOLDING: Defendants’ motion to dismiss was granted as there was no evidence

that the school intentionally discriminated against Willie because of his race when he was expelled for bringing a weapon to school.

ANALYSIS: The plaintiff’s were not able to show that Willie was treated differently

from others similarly situated, and did not show that the school district lacked a rational basis for its dissimilar treatment of him.

 

Griffin Cont.

LEGAL DOCTORINE:

IDEA provision 20 U.S.C. §1415(l)(2) SIGNIFICANCE:

The school system followed the appropriate guidelines for disciplining a student with a disability who brought a weapon to school. An MDR was held and found that the student’s behavior did not have a relationship with his disability. The MDR committee acted in good faith.

When a similar incident occurred with a fifth grade Caucasian student, an MDR was also held for him. This committee found that there was a direct relationship between the student’s disability and behavior, so the student was not expelled.

Due Process Hearing DecisionDistrict of Columbia v. Jane Doe, Next Best Friend of John

Doe (2008) No. 04-1451

ISSUE: Did the third Level I infraction amounting to a Level II infraction

constitutes a denial of a free appropriate public education (FAPE).

Was the student’s behavior a manifestation of his disability? HOLDING: No, if the student’s Level I infraction was changed to a Level II

infraction; the student would have been suspended for eleven to forth-five days or two semesters. This would not have had an impact on the student receiving free appropriate public education.

The student’s conduct was not a manifestation of his disability, but tantamount to being a nuisance. The student was entitled to be discipline as a non-disable student.

 ANALYSIS: The mother was notified of the meeting but did not attend. The Discipline Hearing Officer invoked a “Stay-Put” provision to

prevent the student from being transfer to an alternative placement pending a decision in the case.

Jane Doe Cont.Although, the student’s behavior should have been classified as a Level II

infraction and not a Level I. The Discipline Hearing Officer concluded that the behavior did not warrant a forty-five day suspension, and reduce it to ten days.

There was no evidence that the student was a danger to himself or others, which warrant a change in placement.

  LEGAL DOCTORINE: IDEA-FAPE provision, 20 U.S.C. § 1415 SIGNIFICANCE: Under the Article III of the Constitution mootness requires an

existence of a Case or Controversy before permitting judicial action (District of Columbia v. Jane Doe, Next Best Friend of John Doe (2008). However, the controversy virtually ended, because the superintendent challenge was base on a Hearing Officer’s Decision and not moot. In addition, the school year ended and the student no longer attended the Janney Elementary School or any District of Columbia Public Schools.

The superintended makes the final decision with respects to non-disable students, but the hearing officer can override the assistant superintendent.

The District summary for judgment was granted and the parents were denied.

Due Process HearingNo. 04-113

Virginia Department of Education, 2004

ISSUE: Does the hearing officer have authority to review the school

board’s expulsion decision? Was the student’s disability associated to her selling illegal

drugs on school property? Did the school provide a free appropriate public education during

the student’s expulsion?  HOLDING: In the state of Virginia and other jurisdictions, the expulsion

review is conducted by the school superintendent. The student disability was not a manifestation of her illegal drug

activity. FAPE was being provided by the counselor and special education

teacher, who monitor and provide appropriate study aid to the student.

Due Process Hearing, Cont.

ANALYSIS: In the state of Virginia and other jurisdiction, the hearing

officer do not the authority to review school board’s expulsion decision.

The decision of the hearing officer is final and binding, unless appeal.

The parents can file an appeal regarding the identification, and evaluation of educational placement to the circuit court for review of the school board action.

 LEGAL DOCTORINE: IDEA-FAPE provision SIGNIFICANCE: Not controlling, as in a due process hearing. All parties can appeal in the state circuit court within one

year of the decision or in federal district court.

Lewisville Independent District School v. Charles W (5th Cir. 2003)

81 Fed. Appx. 843

ISSUE: Did the issues surrounding a highly functioning autistic student

with significant behavioral problems result in being denied a free appropriate public education mandated by IDEA?

Did the least restrictive environments academically have an impact on the student’s behavior?

Did the implementation of the behavioral plan improve the student’s behavior?

 ANALYSIS: No, evidence presented by the school indicated that the student

was denied FAPE. No, the student lease restrictive environment allowed him to be

mainstreamed with his peers, but the ADHD attribute to his behavior.

  

Lewinsville, Cont.

The implementation of the Behavioral Intervention Plan prevented the student from being expelled.

The school provided the parents with social skill report, intervention, incidents due to student disability, and non-disability behavior.

 LEGAL DOCTORINE: IDEA-FAPE provision, 20 U.S.C. § 1414(d)(1)(B) (2000) SIGNIFICANCE: The court rule that the school program was reason calculated

to enable the student to receive some educational benefits, and the charges against the school was erroneous.

The results of the IEP team effectiveness were manifest in fewer in-school suspensions, improved behavior and a positive academic and non-academic environment for the student.

 

Implications on Practice and Implementation of Strategies

The nine cases reviewed send a very clear message as to dealing with disciplinary issues for students with disabilities. It is crucial that schools follow the specific guidelines and safeguards outlined by IDEA for discipline. In addition, holding MDR’s in a timely fashion when students are suspended for ten days or more and frequent review of Behavior Intervention Plans (BIP’s) will go a long way in making sure that students are receiving FAPE in the LRE, while providing a safe and orderly learning environment for all students.