ABSTRACT: Public Law 94-142 provides for a free appropriate public education for all handicapped children, but does not address the issue of disciplining handicapped students. The result has been confusion and uncertainty, particularly concerning expulsion and suspension. The courts have been forced into this vacuum, acting as arbiters. The Supreme Court's ruling in Honig v. Doe will help to delineate the proper role of educators in the suspension and expulsion of handicapped students. This article examines that role and offers recommendations for school policies regarding the discipline of handicapped students. Fl Public Law 94-142 and regulations implementing the law provide for a free, appropriate public education for handicapped children. However, neither the law nor the regulations address the issue of the discipline of handicapped students. The result has been confusion and uncertainty among special educators and administrators concerning their rights and responsibilities in the area.
The courts have been forced into this vacuum, acting as arbiters, having to balance the rights of the handicapped with the school's duty to maintain order and discipline and to provide an appropriate education for all children. A substantial body of litigation has emerged concerning these issues, especially regarding the suspension and expulsion of handicapped students. In interpreting existing laws and regulations, the courts have fashioned a body of common law (law based on court decisions rather than legislatively enacted law) which has helped to clarify this balance. The issue remains unclear, however, because much of this litigation has been contradictory and the decisions by the courts apply only to their particular jurisdiction (e.g., decisions by the 9th Circuit Court apply only to the ninth circuit). On January 20, 1988, the Supreme Court issued a ruling in Honig v. Doe that should serve to remove the confusions and uncertainty surrounding these issues. Supreme Court rulings become the law of the land; therefore, this ruling is binding on all schools in the United States.
The purpose of this article is to explicate the rights and responsibilities of special educators and administrators in the suspension and expulsion of handicapped students from school. In addition to a discussion of Honig v. Doe, this article presents the common law principles that have been developed in federal litigation. Principles developed in these cases are examined, rather than the cases themselves. Further details can be found in a number of excellent reviews (Bamette & Parker, 1982; HartogRapp, 1985; Leone, 1985; Osbome, 1985, 1987; Ratwick, 1983; Rothenberg, 1986). COMMON LAW PRINCIPLES Common law is defined in Barron's Law Dictionary (Gifis, 1984) as a system of law which is based on judicial precedent rather than statutory laws, which are legislative enactments" (p. 81). It is derived from principles based on judicial reasoning and common sense, rather than rules of law. These principles are determined by social needs and have changed in accordance with changes in these needs. The body of common law dealing with the suspension and expulsion of handicapped students has been developed in a number of federal cases. These cases, citations, and major rulings (including Honig v. Doe) are listed in Table 1.
The common law principles developed from the cases listed in Table I are instructive and can guide the development of school disciplinary policies with handicapped students. These principles retain their significance after Honig v. Doe because the Supreme Court's ruling did not address all pertinent issues. Principle 1. Temporary suspensions are available for use in disciplining handicapped students. Schools have a right and duty to maintain discipline and order. The courts have consistently held that short-term suspensions (of less than 10 days) are neither changes in educational placement nor a cessation of educational services and that these suspensions are therefore available for use with handicapped students. …