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Expelling Violent Handicapped Students Curbed

January 21, 1988|DAVID G. SAVAGE | Times Staff Writer

WASHINGTON — The Supreme Court ruled Wednesday that public school officials may not unilaterally expel handicapped children, even if they are violent or disruptive.

The child's parents, "or, as a last resort, the courts," must agree before a disabled or retarded student may be removed from his school, the high court declared.

The 6-2 decision limits the discretion of public schools at a time when emotionally and physically handicapped youths are increasingly being "mainstreamed" into regular classes rather than being housed in institutions or special schools.

The ruling was a defeat for California school authorities, who had argued, in connection with a San Francisco case, that they should be able to act quickly and unilaterally when they believe that a handicapped child poses a danger to others.

School authorities may suspend a disruptive handicapped child for up to 10 days, the court said, but, after that, they must return him to his classroom unless they obtain approval from the parents or a court.

Censorship Powers

Just last week, the high court gave public school officials broad powers to censor student newspapers, ruling that the Constitution's guarantee of freedom of the press does not extend to school-sponsored papers.

But, in this case, the justices were faced with the strictly worded Education for All Handicapped Children Act of 1975, which says that the parents of a disabled child must have a voice in deciding where and under what conditions their child is educated.

Congress said at the time that millions of disabled and retarded children were either excluded from schooling entirely or were "warehoused" in special schools for the handicapped. Those children would benefit from being in standard public schools, Congress said, and it gave parents strong legal rights to represent the interests of their children.

According to the law, once parents and school officials decide on a particular educational plan, "the child shall remain in the then-current educational placement" until parents approve a change.

School officials in San Francisco, later joined by California school Supt. Bill Honig, argued that it "simply doesn't make sense" to insist on returning a violent child to a classroom, and they urged the high court to create an exception for dangerous and disruptive students.

Choked Another Student

In 1980, the San Francisco school district expelled an emotionally disturbed 17-year-old who tried to choke another student and kicked out a window. U.S. District Judge Marilyn H. Patel of San Francisco later ruled that the school district had exceeded its authority and violated the law.

"We decline (Honig's) invitation to rewrite the statute," said Justice William J. Brennan Jr. for the high court. "We think it clear that Congress very much meant to strip schools of the unilateral authority that had traditionally been employed to exclude disabled students, particularly emotionally disturbed students, from school."

The law does not "leave school administrators powerless to deal with dangerous students," Brennan added. Officials can use the 10-day "cooling-down period" to meet with parents and persuade them to agree to placing their child in another type of classroom, he said.

"In those cases in which the parents of a truly dangerous child adamantly refuse to permit any change in placement," school authorities may seek relief from a federal court, Brennan said. But, even then, he noted, the law "effectively creates a presumption in favor of the child's current educational placement."

Risk of Injury Cited

A change should be permitted only when school officials can show that keeping the student in his class "is substantially likely to result in injury either to himself or herself, or to others," Brennan wrote in the case (Honig vs. Doe, 86-728).

Justices Antonin Scalia and Sandra Day O'Connor dissented from the opinion only because they believed the case was moot. The 17-year-old who was the subject of the first ruling is now 24 and no longer eligible for public schooling, Scalia said.

In reaction, Honig said he "could live with the decision. At least it gives us some clarity about what districts can and can't do."

He said that, in cases in which a student is considered dangerous, school officials will not hesitate to go to court for authorization for expulsion.

"We think the safety of the other children should be a paramount concern, too," Honig said.

Sheila Brogna, an attorney for Legal Services for Children of San Francisco, said that she was delighted with the ruling.

'Mayhem in Hallways'

The California school authorities portrayed this as "a case of murder and mayhem in the hallways. I'm very grateful the justices saw through that," said Brogna, who since 1980 has been fighting on behalf of two disturbed students who were expelled from school.

She said that a principal may remove a violent student from school whenever necessary but "no child remains out of control for five or 10 days." Expelling students entirely from school was "simply an insidious attempt to undercut the very purpose of the Education for All Handicapped Children Act," she said.

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