Why Schools Don't Dare To Discipline the Disabled
ANDERSON, STUART
Why Schools Don't Dare To Discipline the Disabled By Stuart Anderson In a Virginia school, a gang of five students assaults a lone teenager in the hallway. One of the attackers uses a meat hook....
...Making a Good Law Better" is how the Clinton administration labels its reform proposals for the Individuals with Disabilities Education Act...
...At a congressional hearing, he told one witness that he was glad her state "didn't throw youngsters out on the street" as Virginia did...
...In December 1993, the Clinton Education Department decided that Virginia must pay for and continue alternative special education for expelled special education students, even those who had sold drugs or assaulted other students...
...Sure it does...
...But in the upside-down world of the Individuals with Disabilities Education Act, that was enough to land her right back in class, presumably without the knife...
...After an Orange County Superior Court judge sided with the school and issued a temporary restraining order to remove Jimmy to a special day class, his father's lawyer requested and received a federal court hearing...
...Since federal funding is allocated based on the number of special-education students in a district, schools have an incentive to place children in specialed classes...
...He's basically a disruptive force in that classroom...
...over a two-year period Ocean View has spent $85,000 on the case, though it expects its legal fees to reach at least $150,000...
...The best way to describe it is you had a classroom of 30 [with a teacher], and you had a classroom of one with an instructional aide...
...At the public school in Fairfax County, Va., where one of the six students involved with a 357 Magnum had been labeled "learning disabled" due to weak writing ability, an extensive review found no relationship between poor writing and gunslinging...
...Without the teacher's testimony, the federal judge ruled the school had not demonstrated Jimmy was a danger, so he was returned to class...
...If the parents refuse, the school must allow the child to stay put until a formal hearing is held...
...A lengthy court fight has ensued...
...In fact, Virginia educators testified that not expelling or suspending them can be devastating to the prospects of special education students...
...If the federal law would have given us some flexibility we could have moved him temporarily into another environment, worked with him, and then transitioned him back," says Ronald Wenkart, general counsel for the Orange County Department of Education...
...The administration threatened to withhold $58 million in special education assistance earmarked for the state...
...It is an abuse of process...
...Federal funding for special education, he says, "goes to well-organized and middle class service providers who know how to work the government...
...Another is the over-identification of children as disabled...
...They abuse it...
...Last April 1995, a hearing officer chosen by Secretary of Education Richard Riley ruled against Virginia, arguing that the law needed "to be read broadly to effectuate its purposes...
...He wanted the babysitter, not the teacher, to have the authority to opt Jimmy in or out of any classroom activity...
...He was doing things independently everywhere in the classroom-physically, emotionally, and mentally...
...He wanted unlimited class visitation for himself but would not allow any other parents to visit the classroom...
...A special education student who wielded a knife, on the other hand, would not be affected under these "tighter" procedures, since the disciplinary provisions of the 1994 reform apply only to guns...
...The 1994 Improving America's Schools Act pushed that to 45 days...
...However, the program's biggest defender, Sen...
...It is an open question whether horror stories from across the country will persuade Congress to change the Individuals with Disabilities Education Act this year...
...I don't think they contemplated there would be discipline problems or they wouldn't have written it the way they did...
...Three of the gang are kicked out of school but the other two-because they are in special education-are not...
...Any time we tried to change [special education policy] we would be overwhelmed," says Michael Horowitz, a senior fellow at the Hudson Institute and general counsel at the Office of Management and Budget from 1981-86...
...However, under the U.S...
...Before the school could enforce the suspension, the boy's family hired a lawyer, who asserted that the school could not suspend him because he had a disability...
...In the spring of 1994, the Ocean View School District told Jimmy's father that the boy, who was becoming disruptive and had hit other students, needed to be removed from his kindergarten class and placed temporarily in a special day class where he could be observed by a special education teacher...
...Passed in 1975 to guarantee a "free appropriate public education" for children with disabilities, IDEA, in part due to the Clinton administration's interpretation of it, has also helped keep lawyers active and made schools more dangerous...
...I think that's nonsensical," says John Cafferky, a Fairfax, Va., attorney who serves as outside counsel to several Virginia school districts...
...He notes that expulsion typically means ceasing educational services...
...A fourth grade girl, also in Washington, carried a knife in her backpack that she used to extort lunch money from other students...
...They get very good information and there's absolutely nothing wrong with that, except that there are many parents who are not as honest as others, and they choose to use a rule or a law that's designed to protect youngsters with special needs...
...The principal does not expel him "because he was in special education...
...A special education student once risked no more than 10 days' removal from a classroom for carrying a gun in a public school...
...In one California case, the parents of a student caught selling drugs accused school officials of "missing" his disability and wanted him placed in special ed...
...Undisciplined, not held accountable for their acts, the students will fail to learn community values and expectations...
...Parents of other kindergarten children picketed the school to protest Jimmy's return...
...Virginia has appealed the Education Department's ruling in federal court...
...In Jimmy's case, school officials believed going to court was their only choice...
...She pulled it out on at least one occasion...
...The network among special education people is extremely good," says Sargent, "among parents, among advocates, among attorneys...
...Last June, in testimony before the House Early Childhood, Youth and Families Subcommittee, Rebecca Sargent, president-elect of the California School Boards Association, noted that the state has seen a doubling in cases where parents and their attorneys seek referrals to special education only after a student is about to be expelled...
...Yet in light of federal policy the student was not kicked out and "later bragged to teachers and students at the school that he could not be expelled," according to a deposition filed with the state by Fairfax County school officials...
...In Washington state, a first grader carried a large screwdriver to school, held it to the throat of a classmate, and threatened to plunge it in...
...Virginia contested this action, noting that its expulsion policy had gone unchallenged during the Bush and Reagan years...
...It has resulted in situations where the students who committed the violent acts are returned to sit in the same classroom with those who were victims of their behavior...
...However, the classroom teacher whom Jimmy bit refused to appear at the hearing...
...Last February, a senior at El Capitan High School in San Diego County brought a gun to school and was suspended...
...What we state is that if the child is expelled from school they cannot cease educational services...
...He wanted the school to buy Jimmy two computers, one for home and another for school, each with a color monitor...
...The discipline provisions are only one problem with the law, they say...
...This has been the practical consequence of the premise that has guided implementation and enforcement of the law- namely, that without federal intervention, public schools would try to exclude kids with disabilities...
...The administration is a booster of the law, as are disability-rights activists and a number of lawmakers in both parties...
...Meanwhile, the school district and the father wrangled in court...
...The case of 7-year-old Jimmy Peters in Huntington Beach, Calif, illustrates how the myriad federal rules and regulations on special education can tie the hands of teachers and school administrators...
...Rep...
...Efforts to toughen IDEA's disciplinary rules have produced only minimal reform...
...Does it affect student behavior...
...Few lawmakers want to court accusations that they have an animus against disabled children...
...Parents of 12 of his classmates removed their kids from school...
...This time, the school felt it had to act...
...But the restrictions on discipline have become the most controversial aspect of IDEA...
...In that type of setting, psychologically it has an effect upon the children seeing the teacher and the aide being hit or bit," says Jim Hemsley, West Orange County director for special education...
...Robert Scott, a Virginia Democrat, opposes his state's stance on special education and discipline...
...The initial intention of the law was to keep the children in school," says Wenkart...
...The 17-year-old later tells the principal that he was just "playing around...
...Although some say the case does not set a precedent, a judge in Tennessee even ruled that a high school overstepped its authority when it called police to arrest a special education student...
...In New Hampshire, a 17-year-old pushes a fellow student up against the wall outside the school cafeteria, presses a starter pistol into the boy's stomach, and says, "I'm going to kill you...
...Tom Harkin, says he would "stand in front of the schoolhouse door" to block reforms relating to discipline...
...He wanted Jimmy in a regular classroom and asked that the school hire his son's babysitter as a classroom aide...
...Department of Education's] Office of Special Education Programs, has literally been trying to pull apart this school district," says Hemsley...
...Yet without the father's permission, administrators' hands were tied...
...But state officials say this is a caricature of their position...
...Although the law did not specifically address discipline, in effect it has enshrined into federal law a double standard for discipline that defies common sense and leaves children, particularly other special education students, to face dangerous peers who are above the law...
...Expulsion is often a wake-up call for both students and parents, who must pay for private schooling...
...When the school tried to take action against the girl, her parents said that she had been in special education at a previous school, though there were no records to support this...
...Slade Gorton of Washington and conservative House Republicans such as Duke Cunningham of California...
...She had begun receiving workers compensation for stress and declined to testify, based on her doctor's recommendation...
...At another Virginia school, six students show up with a loaded 357 Magnum...
...Among its critics are GOP Sen...
...The Iowa Democrat says he fears "unintended consequences...
...It's pretty clear that, by gaming the legal rules, parents can effectively hamstring school officials under IDEA," says Michael Heise, an assistant professor at the Indiana University School of Law...
...The student had no history of disability, nor had the parents ever requested that he be evaluated...
...The school refused to settle...
...Do the kids know someone got away with something...
...The school district's most recent federal complaint is pending...
...Congress and the Clinton administration have proposals to amend and reauthorize the Individuals with Disabilities Education Act this year...
...This was the first the school had heard of it...
...After one day, Jimmy's father pulled him out of the school to be taught at home...
...Under IDEA, the kid was returned to class...
...Virginia state officials argued that the Department of Education could not produce any studies to support its contention that expulsion or long-term suspension creates "severe" and "long-term" consequences for special education students...
...Jimmy's father offered to settle the case if a series of demands was met by the district...
...Judith Heumann, the Clinton administration's assistant secretary for special education and rehabilitative services, insists that "there is nothing that precludes a principal from expelling a child from school if there is an appropriate reason for doing that under IDEA...
...But while the administration recommends expanding the discipline procedures to include weapons other than guns and would allow hearing officers instead of judges to rule in some discipline cases, it has not ceased insisting that states provide an appropriate education to special education students who are expelled for disciplinary reasons...
...Such are the perverse results of a federal law known as the Individuals with Disabilities Education Act (IDEA...
...Stuart Anderson is a visiting policy analyst at the Cato Institute...
...But the Department of Education still requires school districts to give gun-toting special education students an alternative placement during the 45-day suspension...
...This effectively foreclosed police involvement...
...I wouldn't call it a scam...
...five are suspended but the sixth, thanks to a "writing disability," gets to stay in school...
...What's known as the "stay-put" provision therefore prevents school districts from removing a disabled child without parental or court approval...
...Department of Education's rules, a school needs a court order to transfer a special education student for more than 10 days without the parents' consent...
...Jimmy's father has never permitted the school district to assess the boy, so the exact nature of Jimmy's disability has never been agreed on...
...The judge, while ruling that the school had to readmit the young man, allowed that IDEA "can be used as a manipulative tool to undercut a school's ability to discipline students and, frankly, I think that these are the kind of situations that can cause [other] parents, if they have any money whatsoever, to remove their children from a public school...
...Yes, they sure do...
...When a school cannot expel a student who was centrally involved with a loaded 357 Magnum short of getting the school system involved in a federal lawsuit . . . and when the student crows about it later, this is where the rubber meets the road in terms of federal policy...
...And to be fair, Jimmy was accused only of biting a teacher and attempting to hit another student with a chair...
...And the Education Department has fought states, most prominently Virginia, that stray from this permissive regime...
...Claiming a son or daughter needs to be placed in special education has proved to be an effective tactic to delay or prevent expulsions and suspensions...
...The disciplinary loophole of the disability law is now commonly exploited by creative parents and their dangerous children...
...A short time later, Jimmy hit a classroom aide and bit the teacher, and in a final incident, he attempted to hit another child with a chair...
...Current federal policy, the state argues, not only creates a double standard, it "promotes an anti-community 'badge of honor' (misbehavior without consequences) that inner city schools are fighting to eliminate...
...This one father, because of the way IDEA has been interpreted in the courts, and at the [U.S...
...In the meantime, Jimmy Peters's father is still pressing his case...
...Even when parents do not abuse the system, IDEA forces schools to make bizarre distinctions in meting out punishment...
Vol. 1 • February 1996 • No. 22
