What Are the Rules About
Suspending and Expelling Children with Disabilities?

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The Question

My son, who has a learning disability, is in trouble at school. It seems that one boy brought a bottle of root beer to school and shared it with my son and another boy. The student who brought the bottle to school mentioned that root beer may contain alcohol.

After hearing that root beer may contain alcohol, my son notified school officials during lunch, about two hours after this incident.

During the investigation, it was alleged that my son had a drink of root beer. The school expelled all three boys. The school is now trying to expel the boys for an entire semester.

We requested a Manifestation hearing and appeal. Because of this, my son has remained in school.

I read your notes in the discipline section of USC 1415 which seems to say that the school cannot punish my son as they plan to do.

I have consulted with an attorney who has experience with other types of special education law, but not with discipline. Can you cite cases or other administrative findings that support your comments? If I have solid information to take to the school heaing, I may be able to put an end to this episode.

This incident occurred less than two weeks after my son entered high school. For any student, such severe punishment is uncalled for. For a child with serious learning disabilities, this type of "discipline" may cause him to drop out and end his chances for an education.

The Answer

Zero Tolerance Policies: Defining Deviancy Down

The situation you describe is absurd and can have tragic consequences for children like your son. Recently, Pam read an article by former New York Senator Daniel Moynihan about "defining deviancy down." This concept applies to the "zero tolerance" policies that many school administrators have embraced.

Schools administrators are supposed to maintain a safe school environment - and keep guns out of schools. But because they have "defined deviancy down," they are suspending and expel kids for bringing plastic knives in lunchboxes, water pistols in backpacks, tiny plastic toy guns from gumball machines - and for drinking root beer.

Weapons and Illegal Drugs

Did your son bring a weapon to school? No.

Did your son bring illegal drugs to school? (Not aspirin, not alka selzer, not medicine prescribed by his doctor) No.

Bringing a weapon or illegal drugs to school is the basis for placing a child in an alternative placement for up to 45 days. During the 45 day alternative placement, schools must continue to provide IDEA children with a free appropriate education. The law is very clear about this.

Discipline is a hot topic. In the discipline article you read, I added comments to the "plain language" of the statute.

https://www.wrightslaw.com/law/code_regs/discipline.html

Caselaw About Discipline

In 1988, the U. S. Supreme Court issued a strong decision on behalf of children with disabilities who were being suspended and expelled from school in Honig v. Doe, 484 U. S. 305 (1988).

URL: https://www.wrightslaw.com/law/caselaw/ussupct.honig.doe.htm

Game Plan

1. Get a copy of our book, Wrightslaw: Special Education Law. The book includes a more comprehensive discussion of discipline issues. Wrightslaw: Special Education Law also includes a casebook of decisions from the U. S. Supreme Court, including Honig v. Doe. You may want to order two copies - one for yourself and one for your attorney.

3. Get an independent evaluation of your son by a private sector expert - child psychologist. (Ask around to see who has a good reputation for doing quality evaluations on kids.)

Does your son have other problems, i.e., ADHD? Is the school teaching your son the skills he will need as an adult?

A good private sector expert can be an effective advocate for your son, and get you "out of the loop". This person can explain why your son's behavior (drinking root beer) did not violate school rules. Or, if your son did violate school rules (i.e., brought alcoholic beverages to school), the private sector expert can link his behavior to his disability (LD and/or ADHD).

3. Try to find a copy of "Discipline in the School" by Eric Hartwig and Gary Ruesch, was published in 1994 by LRP Publications. This the best book I've read about this area of law and will be very helpful to you and your attorney.

The chapter on "Positive Educational Alternatives to Traditional Discipline" begins with this statement:

"Regrettably, the strongest force against developing alternatives to traditional discipline is inertia, since everything that is done now is based on what was done in the past."

(We wanted to add "Discipline in the School" to the Advocate's Bookstore but it seems to be out of print.) If you call LRP (800-341-7874), they may have a few extra copies available.

Good luck!

 Pete