By Del Stover
9/14/04 -- What are school officials to do with a student who uses profanity, disrupts the classroom, threatens teachers, and physically shoves a staff member?
At DeSoto (Kan.) Unified School District 232, the answer should have been simple: Hold the student accountable for his actions by expelling him.
But that's not what happened. Because the student fell under the disciplinary rules of the Individuals with Disabilities Education Act (IDEA), officials could only suspend the student for 10 days. After that, he returned to school while officials worked to overcome the legal hurdles necessary to change the student's placement.
For Joe Vitt, the school system's executive director of special services, the incident highlights a serious flaw in IDEA: The law creates in schools a dual disciplinary system, one that gives special privileges to students with disabilities at the expense of school safety.
Dealing with serious disciplinary issues under IDEA "requires a lot of staff time," Vitt says.
Worse, the school suffers when disruptive students cannot be disciplined properly. "If you're the teacher, and you're worried about keeping that student safe and other students in the room safe . . . that's a whole new level of stress," he says.
That the safety of students and staff can be compromised by IDEA rules is no surprise to Reginald Felton, NSBA's director of federal relations. NSBA has been urging Congress to change the disciplinary rules to ensure the safety of all students.
"It's very serious," Felton says. "Local school districts are responsible for the safety of all students and staff, and they need the authority to take whatever disciplinary measures they deem necessary to ensure that safety."
NSBA is asking Congress to give local school officials the discretion to remove persistently dangerous and disruptive children from the classroom and to make disciplinary decisions on a case-by-case basis.
"We believe local school officials certainly have the wisdom and experience to deal with disciplinary issues," Felton says. "And we believe school officials need more flexibility to ensure the safety and well being of all students and staff in their schools.
School officials often complain about the legal hurdles created by IDEA that make it difficult to respond quickly and appropriately to serious disciplinary measures. In many instances, they say, it's difficult to complete a manifestation hearing within 10 days. Such hearings determine if a student's misbehavior is the result of his or her disability -- a preliminary step in any disciplinary effort.
And, even if the hearing is held, parental opposition to the school's findings can lead to a prolonged and expensive legal battle that delays a final resolution to the problem.
In Haverford Township, Pa., for example, a student with attention deficit disorder and an emotional disability was caught selling prescription drugs at school. The school system suspended the student for 45 days but remains caught up in a prolonged legal dispute over how to deal with the student.
"Each of these cases can drain a tremendous amount of staff time," says William Keilbaugh, an assistant superintendent in the school system. "And these cases can become fraught with litigation."
The legal -- and financial -- hurdles created by IDEA can force school officials to accept compromises they'd prefer to avoid, says Richard S. Boothby, an attorney representing a number of West Virginia school systems. Districts often lack the financial resources to fight parents' opposition to a more restrictive placement.
"Schools literally have to wait until a kid has hurt several people -- a pattern of incidents serious enough to go to a due process hearing," Boothby says. "Now, if you have an incredibly violent incident -- with no weapon involved -- the kid is coming back in 10 days to the place he was, which is unbelievable."
This issue has been debated repeatedly on Capital Hill over the years. In 1997, Congress revised IDEA's disciplinary rules to provide school systems with some flexibility -- such as the right to suspend special education students for 45 days for a gun or drug violation.
During the current reauthorization of IDEA, the House approved legislation that would give schools the right to make disciplinary decisions on a case-by-case basis and eliminate the requirement for manifestation hearings.
A Senate bill retained the manifestation hearings but would give schools the right to put students in an alternative setting pending an appeal of disciplinary measures.
NSBA supports the House bill and hopes Congress will push through final legislation on IDEA before it adjourns this fall, Felton says.
Not everyone agrees that IDEA needs major revision. Some advocates for the disabled argue that current rules protect special education students from the abuses of years ago, when school officials allegedly used behavioral problems as an excuse to get rid of expensive-to-teach students. Advocates argue the burden of proof should stay on the schools.
But that argument overlooks the protections that IDEA still would provide, Felton says. No matter what disciplinary measures are taken, schools still must provide students with an appropriate education -- and parents will still have the right to appeal the school's decision.
"School officials have only the best interests of students at heart," Felton says. "What they want are sensible rules that allow them to take appropriate disciplinary action and ensure student safety."
Mary Ginn, a special education consultant in Laurens, S.C., also dismisses fears that educators would use new rules to rid themselves of troublesome students. Her school system is implementing a new placement program for all students whose behavior results in disciplinary measures, because officials don't want students out of school.
If anything, school officials would like to treat all students equally. In DeSoto, Vitt says, it's been hard to explain to parents why -- in a recent drug case involving both regular and special education students -- school officials expelled some students but only suspended others.
For administrators at the building, "it's been a problem," he says. "Parents find out really quickly [what's going on], and now you've got parents who are upset. They want fairness and rightly so. They want to know why their child is being treated differently."