Academic journal article
By Osborne, Allan G., Jr.
Fordham Urban Law Journal , Vol. 29, No. 2
In 1975, Congress passed the Education for All Handicapped Children Act. (1) The Act was passed based on findings that the special-education needs of over half of the children in the United States with disabilities were not being fully met. (2) Specifically, Congress found that one million children with disabilities were entirely excluded from the public school system while others were allowed to participate but did not realize the full benefits of an education because their disabilities went undetected. (3) Thus, by mandating a Free Appropriate Public Education ("FAPE") (4) for all students with disabilities (5) in the Least Restrictive Environment ("LRE") (6) possible, Congress effectively required schools to fully incorporate students with disabilities into the public education system. The landmark legislation also gave students with disabilities and their parents unprecedented due process rights. (7) The law included a requirement that school officials and parents jointly design an Individualized Education Program ("IEP") (8) for each student requiring special-education. (9) Since 1975, Congress has amended the statute several times. One of those amendments, enacted in 1990, gave the law a new name: the Individuals with Disabilities Education Act ("IDEA"). (10)
Prior to the enactment of the IDEA, some students with disabilities were being totally excluded from the public schools, while others were not able to succeed in their educational programs. (11) The purpose of the IDEA is to ensure that students with disabilities have access to an appropriate education. (12) The IDEA includes a number of provisions to ensure that the rights of students with disabilities are protected. For example, a student's educational placement may not be arbitrarily changed by school officials. Rather, the IDEA specifies that a change in educational placement may occur only after the child's parents have been provided with written notice of the contemplated change. (13) If the parents object to the proposed change in placement, they may request a due process hearing. Depending on the state law, the due process hearing may be conducted by either the state or local education agency. (14) The hearing must be presided over by an impartial hearing officer who is not an employee of the state or local education agency. (15) If the hearing is held at the local level, the losing party may appeal to a state level hearing. (16) Eventually, unfavorable hearing decisions may be appealed to the state or federal courts. (17)
As indicated above, a student with disabilities must be educated in the LRE. For most students the LRE is the regular classroom and they are removed from the class only to the extent necessary to receive needed special-education services. Some students, however, may require a more restrictive placement. This could include a substantially separate special-education classroom in a public school, or a placement in a private day school, or a residential school.
The law, as initially enacted and amended, was silent on the subject of discipline. Many of its provisions, however, had implications for a school's efforts to discipline students with disabilities. (18) Since penalties like expulsion or long-term suspension would deprive a student of educational opportunity, courts found such discipline to deprive students of their due process rights guaranteed under the Fourteenth Amendment. (19) In 1997, Congress passed the most comprehensive amendments to the IDEA to date. (20) The amendments included provisions on the discipline of students with disabilities. (21) Many of those provisions simply codified existing case law; others, however, helped clarify formerly opaque areas. (22)
This article will analyze the requirements for disciplining a student with disabilities. It begins with a historical overview of the case law prior to the 1997 amendments to the IDEA. (23) This review will help the reader understand why many of IDEA's current disciplinary provisions developed. …