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Local school officials often face a dilemma when dealing with students with disabilities who are disruptive or violent in the school setting.  The law imposes two duties that sometime conflict with each other.

First, there is the duty to maintain a safe and orderly campus.  In the shadow of the shootings in Newtown, Connecticut this concern has moved to the forefront of public consciousness.  Schools are looking at all manner of options.  While there is much disagreement over the “how” to maintain a safe school, there is complete consensus on the goal.  Every student should know that his school is a safe place.  No teacher should be driving to work in the morning, anxious for her personal safety.

The other duty requires schools to serve all students with disabilities appropriately, even those who commit serious or violent offenses at the school.  Not only does the law require schools to serve all such students, it also requires that services must be provided in the “Least Restrictive Environment” (LRE).These two duties bump into each other.



Long ago, public schools simply expelled students who were disruptive or violent.  Prior to 1975, there was no legal requirement to serve every student, and many states ceased to serve students who were too difficult to serve.  There was no legal requirement to serve all students, much less to do so in the “least restrictive environment.”  There was no legal duty to consider how a student’s disability might impact the student’s behavior.  Troublesome kids were just moved out of the way.

That all changed in 1975, with passage of the Education for All Handicapped Children Act.  The original version of the law did not provide specific guidance regarding student discipline.  Consequently, courts had to interpret what the law required in practice.  In 1981, the United States Court of Appeals for the Fifth Circuit decided the case of S-1 v. Turlington, 635 F.2d 342 (5th Cir. 1981).  This case began when several students were expelled from public school in Florida for almost two years, the maximum penalty allowed under state law.  The behavior of the students ranged from the use of profane language, to masturbation, sexual acts against other students, vandalism, and willful defiance of authority.  All of the students were identified as having “mental retardation,” a term now being phased out by the law.  None were identified as having an emotional disturbance.

The parties to the Turlington lawsuit agreed that it would be illegal for the school to expel a student for behavior that directly resulted from the student’s disability.  All parties agreed that an expulsion under such circumstances would amount to discrimination on the basis of a disability.  School officials assured the court that they had taken this factor into account with regard to the one student who had raised the issue, identified as “S-1.”  Both the school superintendent and the school board determined that S-1 did not have an emotional disability, and, therefore, his behavior could not be a result of his disability.

The 5th Circuit found fault with the school’s procedure in the following three respects:

*First, the court held that school officials should have made a determination as to whether or not there was a link between disability and behavior with all of the students, not just the one who had raised it.  In other words, it was the school’s responsibility to consider this issue, whether the parents thought to do so or not.

**Second, the court rejected the idea that the determination hinges on whether or not the student was identified as having an emotional disturbance.  “Seriously emotionally disturbed” is just one of many classifications that may be applied to students with disabilities, and the court found no reason why only that one group would be protected from discrimination.

***Third, the court found fault with this determination being made by the school superintendent and school board.  Instead, the court ruled that a termination of services brought about by an expulsion amounted to a “change in educational placement.”  Thus, it should have been done by a specially trained and knowledgeable group, rather than simply by the superintendent or school board.

The court did not use the term “manifestation determination.”  That came later.  But that was clearly what the court was requiring—an individualized analysis and determination as to whether or not a student’s misconduct in school arose directly from the student’s disability.  The school would have the duty to raise this issue on its own; and would have to present the issue to a specially trained and knowledgeable group—the IEP Team.

The issue of safety came before the U.S. Supreme Court in 1988, when the Court heard Honig v. Doe, 484 U.S. 305 (1988).  This case concerned disciplinary action taken by the San Francisco Unified School District against John Doe and Jack White.  Both boys were identified by the school district as having emotional disabilities. They were both known to be explosive, occasionally violent.  While the behaviors of these two boys were troubling, to say the least, they were also directly related to their disabilities.

What kind of behaviors?  According to the Supreme Court’s opinion in the case, John Doe was a socially and physically awkward 17-year-old.  In today’s parlance, Doe was the target of bullying.  The Court noted that “physical abnormalities, speech difficulties, and poor grooming habits had made him the target of teasing and ridicule as early as the first grade.”  His IEP noted that his social skills had deteriorated and he could tolerate only minor frustration before exploding.

He exploded on November 6, 1980, after being taunted by a fellow student: “he choked the student with sufficient force to leave abrasions on the child’s neck, and kicked out a school window while being escorted to the principal’s office afterwards.”  The school suspended Doe for five days and began expulsion proceedings.

Jack Smith’s conduct was not as violent, but still very disruptive in the school setting.  Like Doe, Smith was identified as having an emotional disturbance.  He had been physically and emotionally abused as a young child and grew up to be an adolescent with average intelligence, extreme hyperactivity, and low self-esteem.  One evaluator noted that he reacted to stress by “attempting to cover his feelings of low self-worth through aggressive behavior…primarily verbal provocations.”  His misconduct included stealing, extortion, and inappropriate sexual comments to girls in school.  The district suspended Jack, and sought his expulsion.

Parents of both students sued, seeking to stop the expulsion proceedings until the proper “change of placement” procedures were handled.  In support, they cited the “stay put” provision in the law, which guarantees that a student is to stay in the current placement while disputes over that placement are being resolved.

Mr. Honig, the California Commissioner of Education, argued that the “stay put” rule was not intended to apply in a case like this, where student and staff safety were at risk.  Surely, Honig asserted, Congress did not intend to take away the authority of local school officials to maintain safety.  The Supreme Court flatly rejected the school’s argument, and the opinion is worth quoting at length:

The language of 1415(e)(3) is unequivocal.  It states plainly that during the pendency of any proceedings initiated under the Act, unless the state or local educational agency and the parents or guardian of a disabled child otherwise agree, “the child shall remain in the then current educational placement.”  1415(e)(3) (emphasis added [by Supreme Court]).  Faced with this clear directive, petitioner asks us to read a “dangerousness” exception into the stay-put provision on the basis of either of two essentially inconsistent assumptions: first, that Congress thought the residual authority of school officials to exclude dangerous students from the classroom too obvious for comment; or second, that Congress inadvertently failed to provide such authority and this Court must therefore remedy the oversight.  Because we cannot accept either premise, we decline petitioner’s invitation to re-write the statute.

[Mr. Hong’s] arguments proceed, he suggests, from a simple, common-sense proposition: Congress could  not have intended the stay-put provision to be read literally, for such a construction leads to the clearly unintended, and untenable, result that school districts must return violent or dangerous students to school while the often lengthy EHA proceedings run their course.  We think it clear, however, that Congress very much meant to strip schools of the unilateral authority they had traditionally employed to exclude disabled students, particularly emotionally disturbed students, from school.  In so doing, Congress did not leave school administrators powerless to deal with dangerous students; it did, however, deny school officials their former right to “self-help,” and directed that in the future the removal of disabled students could be accomplished only with the permission of the parents, or, as a last resort, the courts.

That certainly put it clearly.  Congress “very much meant to strip schools” of the authority they historically enjoyed.  The Court did not think that its decision was leaving school officials powerless.  If the principal believed that a student was dangerous, she could suspend the student for up to 10 school days.  The “stay-put” rule did not apply to such short-term actions. If a principal believed that a suspension of more than 10 days was called for, he could seek relief from a court.

That was 1988.  Much has happened since then, but the basic tension between two competing duties remains. Schools must simultaneously maintain a safe and orderly school, while appropriately serving students like John Doe and Jack White in the least restrictive environment.

For the most part, this tension is resolved on a case-by-case basis by each student’s Admission Review and Dismissal Committee (ARDC).  The law emphasizes individualized decision making by a group of educators working in collaboration with the parents—the ARD Committee.  The ARDC ultimately has the duty of determining, case-by-case, how to balance the duty to serve in the LRE with the duty to maintain safety.  If educators believe that a student is placed in the wrong setting, they should call for an ARDC meeting and seek a change.  If parents believe that a student is placed in the wrong setting, they should do likewise.

Thus most of the time, this tension will be addressed and resolved through ARD Committee action.  But, in addition, there are things that an individual school administrator—usually the principal of the school—can do to address this tension.

The Principal

The starting point in this situation is based on the principal’s preliminary assessment of whether or not the behavior of the student is a manifestation of a disability.  Of course the manifestation determination is ultimately not the principal’s decision—it is the province of the ARD Committee.  But principals have to make a preliminary assessment of the situation to figure out which way to go: do we seek to make an educational change of placement?  Or, do we seek a disciplinary removal?

Sometimes it is obvious that the student’s behaviors are arising directly from the disability.  If that is the case, there is no point in seeking a disciplinary removal.  If the principal knows from the get-go that the ARD Committee is going to find that the behavior is a manifestation of the student’s disability, then it is a waste of everyone’s time to seek a disciplinary removal.  Of course, principals retain the authority to order short-term removals, but the situation we are talking about calls for a long-term solution.  So the starting point is the principal’s assessment of the connection between disability and behavior.  Whether the principal initiates a disciplinary removal or an educational change of placement, the matter will soon come to the ARD Committee.

The ARD Committee

Let’s consider what happens when our situation comes before the student’s ARD Committee.  Consider three cases:

In Abel’s case, the principal recommended a disciplinary removal, and the ARD Committee agreed with the principal that Abel’s behavior was not a manifestation of disability.

Baker’s case began the same way—the principal recommended a disciplinary removal.  But this time the ARD Committee balked.  The Committee concluded that Baker’s behavior was a manifestation of disability.

Charlie’s behavior was obviously a manifestation of disability, so the principal did not initiate a disciplinary removal, but brought the matter to the ARD Committee to consider a change of placement.

What happens?  Abel is subject to disciplinary action pursuant to the student code of conduct.  The penalty for his misconduct can be for the same duration as would be applied to a non-disabled student who engaged in the same behavior, so long as the school continues to provide appropriate services.  Students like Abel are usually served in the district’s disciplinary alternative education program (DAEP).

It is more complicated for Baker and Charlie.  Since the ARD Committee has concluded that their behaviors are manifestations of disability, they are not subject to the disciplinary provisions to the same extent as their non-disabled peers.  But, there are some options for the ARD to consider, some tools in the toolbox.

Essential Tools

There are four “tools” in the school’s “toolbox” that could be used to address this situation.  First, there is the “special circumstances” tool.  IDEA gives schools the authority to remove students to an alternative setting if they commit one of three “special circumstances” offenses.  So, if the conduct of Baker or Charlie involved (1) drugs, (2) weapons or (3) the infliction of “serious bodily injury,” the school can order a removal of up to 45 school days, even if the ARD Committee concludes that the behavior is a manifestation of disability.

Second, the school can use the tool of an educational change of placement with parental agreement.  Since Baker’s behavior is a manifestation of his disability, he must remain in the current placement unless (1) you have “special circumstances” or (2) you have an agreement with the parents to change the placement as part of a modification of the student’s behavior plan.  Two words of caution are appropriate in connection with this tool.  First, the “agreement” with the Bakers should be clear, genuine, well-understood, and well-documented.  Second, the “change of placement” should be to a program that is better equipped to provide appropriate services to Baker.

The third available tool is an educational change of placement without parental agreement.  The school can seek a change of placement for Charlie, even though his parents will not agree.  Again, this should not be done simply as a way to remove a difficult student from a mainstream setting.  It should be used only when the school has a better setting to offer to Charlie.  This tool contemplates non-consensus at the ARD meeting.  Since Charlie’s parents do not agree, the school must be willing to defend its proposal at a due process hearing.

The fourth tool is rarely used.  It is an expedited hearing.  Let’s consider a fourth student: Dudley.  The ARD Committee agrees that Dudley’s behavior is a manifestation of disability; Dudley did not commit a “special circumstances” offense, nor will his parents agree to any change of placement.  The law says that Dudley remains in the current setting.  But Dudley assaulted an aide last week and the principal fears that Dudley will hurt someone else if he is allowed to stay in his current placement. The school can file for an expedited due process hearing.  The hearing officer has the authority to order the student to be removed for a period of time. 

The Most Important Tool

All of these tools are reactive, responding to student misconduct.  But there is one proactive tool in the educator’s toolbox, and it is the most important tool of all–a Behavior Intervention Plan (BIP).  Abel, Baker, Charlie, and Dudley are all engaging in behaviors that impede the learning of themselves and/or others.  The first and most important thing for the school district to do is to identify the problematic behaviors and intervene in an effective way.

A BIP is not an alternative, individualized code of conduct.  It is a description of positive behavioral interventions and services designed to teach, encourage, and reinforce appropriate behaviors.  If the BIP works, there is no need for the reactive tools.  So, educators should focus their efforts on crafting and implementing effective behavior plans for students who need them.

Think of it this way: when we write and enforce the Code of Conduct, we are telling students what is expected of them, and what the school will do to them if they violate the Code.  Thus, the Code of Conduct is reactive, negative, and applied to all students.  A BIP, on the other hand, is a description of what we will do for the student.  It is proactive, positive, and individualized.

The Toolbox

Our federal special education law calls on campus administrators to do two things with regard to students who are disruptive, dangerous, or violent.  You must maintain safety, discipline, and order on campus for the benefit of all students and staff.  But you must also provide an appropriate education in the least restrictive environment to the student who is causing the disruption.  It was that basic dilemma that led me to create what I now call The Toolbox for campus administrators.

This article gives you a very brief overview of some of the ten tools in The Toolbox.  Next fall, I will be providing an introduction to The Toolbox as part of TSALD’s annual Back to School program which I will conduct at 11 locations from August 29 to September 30.  For more information on the Back to School program, go to

To follow up on that, I will be offering intensive, hands-on, two-day workshops for campus administrators and special education staff on how and when to use the tools in The Toolbox.  These programs will be limited to no more than 40 participants so that we cannot only learn about the tools, but practice using them in a variety of hypothetical situations.

If you are interested in booking a Toolbox Workshop, contact Haley Armitage at the Walsh Anderson firm: Call 800-252-3405, or email