Overview
Over the years, courts of law have
consistently held that public school officials and
administrators possess the authority to do what is necessary to
establish and maintain a positive and productive learning
environment where “teachers can teach and students may learn.”
Vacca and Bosher (2003) To enable this important task, statutes
in the various states grant local school boards considerable
discretion in setting policies and regulations controlling
student conduct. For example, the Code of Virginia
enables local school boards to adopt bylaws and regulations for
the management of official business and for the supervision of
schools, “including but not limited to the proper discipline of
students, including their conduct going to and returning from
school.” Code of Virginia, 22.1-78 (2003)
In Loco Parentis. The authority to
discipline students in public schools is deeply rooted in the
age-worn doctrine of in loco parentis. In its traditional
form and meaning, in loco parentis was viewed as a
delegation of unlimited parental authority to school personnel (i.e.,
acting as a temporary guardian of a child, in place of the
parent) to do what is necessary to restrain and correct
misbehaving children. Thus, in the early years of American
public education, courts of law consistently applied in loco
parentis and were reluctant to interfere with the student
disciplinary authority of local school boards, administrators,
and classroom teachers. While the doctrine has not entirely
disappeared from today’s legal scene, Hamilton v Unionville-Chadds
Ford School District (1998), in loco parentis
has, however, undergone considerable modification.
The Era of Student Rights. Beginning
in the late1960’s (In Re Gault [1967], Tinker v
DesMoines [1969]) through the mid-1970’s (Wood v
Strickland [1975], Goss v Lopez [1975]), the
once unlimited disciplinary authority of school officials and
administrators was balanced against the emerging legal and
constitutional rights of students.
While court decisions of the 1960’s and
1970’s launched a “modern era of student rights,” local school
boards and administrators never lost their disciplinary
authority. The key question asked in deciding the outcome of
student disciplinary cases was whether educational officials
provided students with adequate procedural due process
protections.” Russo (2004)
Courts do not insist that students be
provided with the same procedural requirements available in a
court of law. For example, students involved in school
disciplinary matters are not entitled, as a matter of right, to
a Miranda-type warning Boynton v Casey (1982).
What is more, a student is not entitled to a Miranda-type
warning when questioned by a public school administrator in a
situation where a school resource officer is present during the
questioning. J.D. v Commonwealth (Va. App. 2004) Nor are
students automatically entitled to the names of their accusers
and an opportunity to cross-examine the administrators who
investigated the incident that led to the disciplinary action
being taken. Newsome v Batavia (6th Cir. 1988)
It was during the 1980’s that more than
half the States passed statutes to forbid the use of corporal
punishment as a disciplinary option in public schools. Vacca and
Bosher (2003) In Virginia, however, the corporal punishment ban
did not prevent the use of incidental, minor, or reasonable
physical contact, or reasonable and necessary force to maintain
order and control, quell a disturbance, remove a disruptive
student or a student who threatens harm to himself/herself or
others, or to obtain possession of weapons or controlled
substances, or as a means of self-defense. Code of Virginia,
22.1-279.1 (1988)
Student Discipline and Basic Fairness.
It remains a basic tenet of public education law that school
officials “may exclude from school, class, or any school
activity any student whose conduct disrupts the educational
environment, or who willfully defies school board policy of
school rules, or who poses a threat of harm to himself /herself
or to others or who defaces or destroys school property.” Vacca
and Bosher (2003) No student is immune from school disciplinary
policies, regulations, and rules. Bernstein v Menard (E.D. Va
1982) However, it is well established that, “[a]t the very
least, when students are subject to the imposition of
significant disciplinary penalties, they are entitled to notice
and an opportunity to respond to a fair and impartial third
party decision-maker.” Russo (2004) As a general rule, judges
are reluctant to substitute their judgment for those of school
officials and teachers where (1) students have been afforded
basic procedural due process and (2) disciplinary actions are
based on substantive evidence. Johnson v Collins (N.H. 2002)
In recent years, the United States Supreme
Court itself has expressed a reluctance to interfere with state
and local student disciplinary authority. In such decisions as
United States v Lopez (1995) regarding the
authority to control of weapons on public school grounds, and
Board of Education v Earls (2002) where the Court held that
the privacy interests of students are “limited in a public
school environment where the state is responsible for
maintaining discipline, health, and safety…. Securing order in
the school environment sometimes requires that students be
subjected to greater controls than those appropriate to adults.”
Discipline and Special Education Law.
Beginning in the mid-1970’s, a new set of student disciplinary
issues began to emerge, as more and more students with
educational disabilities were included in public school systems
across the country. As Boyle and Weishaar remind us, prior to
the passage of the Education for All Handicapped Children Act
(EHCA, 1975), “More than one-half of the children with
disabilities in the United States did not receive appropriate
educational services….” And, “One million of the children with
disabilities in the United States were excluded from the public
school system and did not go through the educational process
with their peers.” Boyle and Wisher (2001) In the 1980’s and
1990’s this situation drastically changed as a philosophy of
“mainstreaming” students with educational disabilities with
their general education peers in all classrooms and school
activities grew in popularity and gained judicial support.
Oberti v Board of Education (3rd Cir. 1993)
Emerging Issues and Case Law
This commentary is limited to emerging
issues involving the Individuals with Disabilities
Education Act (IDEA). The discussion that follows does not
include issues involving Section 504 of The Rehabilitation
Act of 1973.
As the population of students with
educational disabilities in the general education grew public
school boards and administrators were faced with the following
question: “Are students covered by special education law subject
to the same disciplinary policies, regulations, rules, and
punishments (e.g., suspension or expulsion from school)
as are their age appropriate peers? This question had no clear
answer because student discipline did not appear in federal
statutory law until 1997. IDEA Amendments of 1997, 20
U.S.C. 1415, et seq. Thus, during the late 1970’s and
the 1980’s public school policy-makers and administrators had to
rely on court decisions (involving misbehaving special education
students) for direction. Stuart v Nappi (D. Conn.
1978), Doe v Koger (N.D. Ind. 1979), S-1 v
Turlington (5th Cir. 1982), et al.
The Supreme Court Speaks on “Stay Put”
and “Causal Connection.” In 1988 the United States Supreme
Court decided a Ninth Circuit case involving the indefinite
suspensions and proposed expulsions of two emotionally disturbed
students. Both students had exhibited violent and disruptive
behavior. Calling the students’ behavior “dangerous,” school
officials immediately suspended them from school. The high court
held in Honig v Doe (1988), that the “stay put” provision
of the Education for All Handicapped Children Act of 1975
prohibits state or local education agencies from unilaterally
excluding students with disabilities from classes or from school
for disruptive conduct growing out of their disability (causal
connection), while a review of their situation is pending.
However, school officials have options available to them (e.g.,
study carrels, time outs, detention). Moreover, in situations
where students endanger themselves or pose an immediate threat
to others the Court said that a temporary suspension from school
for up to 10 school days was reasonable.
Special Education Discipline 1988-1997.
In addition to interpreting the “stay put” provision and the
critical need to explore the possibility of a causal connection
existing between a student’s disability and his/her misbehavior,
the Honig decision is important for two other reasons.
First, it did not negate the prerogative of school officials to
immediately remove from classes or school students with
disabilities who engage in disruptive or dangerous behavior
(especially where weapons or drugs are present). Second, it set
a ten-day window in place within which a student with
disabilities is subject to the same disciplinary rules and
procedures as are all other students. The opinion stressed that
excluding a student from a class, activity, or from school for
longer than 10 school days should be treated as a change of
placement. In such situations the procedural requirements of
federal and state law must be followed. How many 10-day
suspensions could be applied to the same student in the same
year remained an unanswered question.
Student Discipline Post-Honig. While
the United States Supreme Court’s decision in Honig v Doe
(1988) served as student disciplinary guide to be followed
by public school system policy-makers and school administrators
for almost a decade, legal issues continued to emerge. One such
issue involved the possibility of discontinuing all services to
a student who had been either long-term suspended or expelled
from school. Virginia D.O.E. v Riley 4th Cir.
1994) It was not until 1997 that Congress amended and
reauthorized the Individuals With Disabilities
Education Act (IDEA) to include specific provisions covering
school discipline that this issue was addressed. Whatever the
disciplinary penalty, at no time shall a student’s services be
terminated. 20 U.S.C. 1415, et seq.
The new IDEA provisions stress a need to:
(1) conduct a manifestation determination, (2) review the
existing IEP, (3) create behavioral management plans, (4)
implement intervention strategies, (5) mitigate existing
problems, and (6) prevent future disciplinary infractions.
Finally, legal scholars stress the importance of determining
whether or not the student’s disability impaired his/her
“ability to understand the impact and consequences of their
misbehavior along with whether it limited their ability to
control their behavior.” Russo (2004)
In 1997, the disciplinary aspects of IDEA
were extended to students who have not yet been formally
declared eligible under the law, where school officials have
“prior knowledge” that a particular student might have a
disability. 34 C.F.R. 3000.527 (a) In this writer’s
opinion the prior knowledge should be more than mere
speculation. It should be interpreted to mean “actual
knowledge” that a particular student should be in special
education.
Serious Disciplinary Problems. It
is important to note that the following two options for dealing
with special education students involved in serious disciplinary
situations currently exist: (1) assigning a student to an
interim alternative education setting (IAES) for such offenses
as weapons and drugs, and (2) seeking a court order “to remove a
student with a disability from school or to change the student’s
current educational placement if the school district believes
that maintaining the student in the current educational
placement is substantially likely to result in injury to the
student or to others.” Federal Laws and Regulations
(LexisNexis, 2004) Finally, IDEA does not prevent school
officials from reporting special education students who engage
in criminal activities to law enforcement agencies.
Commonwealth v Nathaniel N (Mass. 2002)
Policy Implications
The policy implications present when
dealing with the naturally complex area of special education
discipline are several. While confusion still exists over the
exact meaning of statutory language and procedural requirements,
it is possible to glean helpful information from past court
decisions and the body of professional literature. In reviewing
existing school system policies and in drafting new ones, school
policy-makers are encouraged to consider the following
suggestions. Local school boards must make it clear that:
·
Student discipline is a necessary element in
establishing and maintaining a positive, safe, and productive
learning environment.
·
Disciplinary policies, regulations, and rules
apply to all students.
·
The school system’s Code of Student Conduct
clearly and accurately spells out all expectations for student
conduct and the disciplinary procedures and alternatives that
attach to disciplinary infractions.
·
Students who are dangerous to themselves or to
others, or who pose an actual threat to themselves or to others,
or who materially disrupt the learning environment will be dealt
with immediately.
·
Basic procedural due process will be followed in
every disciplinary matter.
·
All principals, teachers, and other staff members
are duty bound to carry out and enforce student disciplinary
policies, regulations, and rules.
·
All parents will be promptly informed of and
involved in disciplinary matters involving their child.
·
All parents will be afforded an opportunity to
inspect, review, and challenge the accuracy of disciplinary
records regarding their child.
·
Confidentiality and security of all information
will be protected.
·
Every student disciplinary matter will be looked
at for its potential ramifications in special education law.
·
Where students are already covered by special
education law, or are in the process of being evaluated for
eligibility, or are suspected of having educational
disabilities, the substantive and procedural requirements of
federal and state law (e.g., the ten-day rule, stay-put,
manifestation determination, behavioral interventions, 45-day
alternative setting, expedited hearings, mediation, etc.) will
be strictly followed, and at no time will services to eligible
special education students be terminated.
·
Law enforcement agencies will be immediately
contacted in every student disciplinary matter where criminal
activity is involved.
Resources Cited
Bernstein v Menard, 557 F.Supp. 90 (E.D. Va
1982)
Board of Education v Earls, 122 S.Ct. 2559
(2002)
Boynton v Casey, 543 F.Supp. 995 (D.Me
1982)
Code of Virginia, 22.1-78 and 22.1-279.1
(2003)
Commonwealth v Nathaniel N., 764 N.E.2d 883
(Mass. App. Ct. 2002)
Doe v Koger, 480 F.Supp. 225 (N.D. Ind
1979)
Education for All Children Act, 20 U.S.C.
1401, et seq. (1976)
FEDERAL LAWS AND REGULATIONS (LexisNexis,
2004)
Goss v Lopez, 419 U.S. 565 (1975)
Hamilton v Unionville-Chads Ford, 714 A.2d
1012 (Pa. 1998)
Honig v Doe, 108 S.Ct 592 (1988)
Individuals With Disabilities Education
Act, 20 U.S.C. 1400 et seq. (1997)
In Re Gault, 387 U.S. 1 (1967)
J.D. v Commonwealth, 591 S.E.2d 721 (Va.
App. Ct 2004)
Johnson v Collins, 233 F.Supp.2d 241 (D.N.H.
2002)
Newsome v Batavia, 842 F.2d 920 (6th
Cir. 1988)
Oberti v Board of Education, 995 F.2d 1204
(3rd Cir. 1993)
Rehabilitation Act, Sec. 504, 29 U.S.C. 794
(1973)
Russo, Charles, REUTTER’S THE LAW OF PUBLIC
EDUCATION, Fifth Edition (Foundation Press 2004)
S-1 v Turlington, 635 F.2d 342 (5th
Cir. 1982), cert. denied, 454 U.S. 1030 (1982)
Stuart v Nappi, 434 F.Supp. 1235 (D. Conn.
1978)
Tinker v Des Moines, 393 U.S. 503 (1969)
United States v Lopez, 115 S.Ct. 1624
(1995)
Vacca, Richard S. and Bosher, William C.,
Jr., LAW AND EDUCATION: CONTEMPORARY ISSUES AND COURT DECISIONS,
Sixth Edition (LexisNexis 2003)
Virginia Department of Education v Riley,
23 F.3d 80 (4th Cir. 1994)
Wood v Strickland, 420 U.S. 308 (1975)
Richard S. Vacca
Senior Fellow CEPI
Note: The views expressed in this
commentary are those of the author. |
