Shift on Special Education Snarling Expulsion Policies

A fifth-grader slaps his teacher and bites another student. A high school junior steals money from a teacher and is suspected of several other campus thefts. A middle-school teen pulls a prank on a teacher by offering chocolate that is actually a laxative bar.

In all three cases, school officials want the students expelled. But the youngsters’ parents are challenging them with this defense: Their children should have been in special-education programs long ago, and the failure of school districts to place them there contributed to their behavior.

Bolstered by recent changes in a federal law, an increasing number of students in regular education classes are trying to avoid expulsion by declaring that the system has failed them. School officials, however, say the rules for assigning students to special-education programs are being overused and misapplied.

“The way Congress has written this law has made it very easy for people to abuse it,” said Ron Wenkart, an attorney for the Orange County Department of Education. “It creates a gigantic loophole for parents to try to delay the expulsion process or to defeat the expulsion.”

Last June, President Clinton signed an updated version of the landmark 1975 legislation that guaranteed public education to children with disabilities. The revised Individuals with Disabilities Education Act, or IDEA, includes provisions that allow able-bodied students to contest disciplinary actions by arguing that an offense committed on campus was related to an emotional or physical condition that went undetected.

School officials say the new provisions make schools more vulnerable to unfounded claims and force education systems to spend exorbitant sums to fight them. The state Department of Education spent $2 million in the 1996-97 school year on attorney fees for special-education hearings.

On the other hand, parents and special-education advocates say that the needs of students with learning and emotional disabilities go undetected too often.

“The majority of kids who get in trouble are those who are not succeeding in school,” said Garden Grove educational psychologist Jackie Shohet, who is also a parent advocate in special-education disputes.

“This is where we’re getting a lot of behavioral problems. Should those children be responsible for their lack of learning? If a person doesn’t do well in school, the last thing they need is someone to say they are a problem kid and kick them out.”

The IDEA included a provision called “stay put,” which allows special-education children facing expulsion to remain in their classrooms until hearings are conducted and the issue is resolved. If the child’s actions are proved to have been caused by or related to a disability, that could exonerate him or her.

The recent changes to the IDEA give all students the opportunity to invoke the “stay put” rule. Under the new provisions, if the school staff had any knowledge that a student in a regular class might suffer from a disability, the special-education rules may be applied in the case of disciplinary action.

The school might learn of a disability in several ways: notification by parents of a child’s condition, the student’s behavior or performance, a parent’s request for a special-education evaluation, or expression of concern by a teacher or other school staff member to special-education officials about a child’s behavior or performance.

In the case of the fifth-grader who hit a teacher and bit a classmate, his mother said the boy’s condition had been diagnosed in the first grade as attention deficit disorder.

A private physician’s report at that time indicated that the boy was “easily frustrated, quite distracted and shows serious explosiveness,” she said.

The mother, who asked that she and her son not be identified, said she never knew that his condition might have qualified him for special-education testing.

“Since the first grade, he’s had outbursts and kept having problems of hyperactivity,” she said. “The school kept telling us something was wrong with him instead of saying, ‘Something needs to be done to help him.’ ”

The attack against the teacher and classmate resulted from the frustration of a child whose needs were not being met, she said.

The state official assigned to hear the boy’s appeal upheld his expulsion. But a positive result, his mother said, is that the boy is now being evaluated for special education.

“It’s been a battle trying to find a place for him to get a proper education,” she said. “My hope is that more districts will pay attention to these children.”

Wenkart, who argued the school’s case at the hearing, said the boy was expelled to ensure safety for other students. Furthermore, he said, exceptions to disciplinary rules should not be made, even for special-education students.

“The law reflects the philosophy that no [special-education] child should be punished,” Wenkart said. “This is a disservice to a lot of kids.”

Special-education students may be expelled for breaking the rules if the infringement is not related to their disabilities.

In the case of the teen who gave a teacher a laxative bar, the student was denied exoneration under the stay-put rule.

The case of the high school student who stole money from a teacher is still pending.

Some parents contend that such drawn-out proceedings could be avoided if schools were more willing and better equipped to identify children with learning and emotional disabilities. They say that school administrators are often uncooperative and overlook children’s needs.

Costa Mesa parent Joyce Riley said she knew when her son was only 6 years old that he had a learning disability, but his school never evaluated him despite her requests for testing.

Fourteen years would pass before a private evaluation determined that her son has an “inability to revisualize in two dimensions,” a brain disorder that makes it difficult for him to remember how to form capital and lower-case letters, or to write them on paper, Riley said.

Her son struggled with writing and was 16 before he mastered the skill. But after he learned to use a keyboard and work by computer, he found a way around his disorder, she said, and is now in graduate school.

“Learning disability is the invisible disease,” said Riley, co-president of the Santa Ana-based Orange County Learning Disabilities Assn. “We spend a tremendous amount of tax dollars on welfare and prisons when we could probably reduce those costs if we paid more attention to identifying children with learning problems and disabilities.”

Advocates say they will continue to challenge the system until teachers are better trained to recognize learning and behavioral disabilities and schools are better equipped to address them.

The number of hearings to appeal placements of children in special-education classes has risen dramatically during this decade, nearly tripling from 548 in 1990 to 1,548 statewide in 1996. Education officials attribute the sharp increase to greater public knowledge of learning disabilities, increased sensitivity to the rights of parents and students, and changes in state and federal laws that give parents more opportunities to appeal decisions affecting their children.

“We’re seeing an increase in complaints,” said Vincent Madden, the state official responsible for assistance and evaluation for special-education students.

Special-education cases rarely go to court. Most are resolved through mediation, and more complicated situations may go through a hearing process similar to court proceedings.

The McGeorge School of Law in Sacramento has contracted with the Department of Education for the past eight years to handle special-education hearings.

Ed Villmoare, McGeorge’s chief hearing officer, said his staff in the past has usually denied the appeals of able-bodied students who invoke the “stay put” rule. But the recent changes in the IDEA complicate the hearing process because they are not consistent with state laws.

“The new federal law appears to grant such students not yet eligible for special education much greater protection,” Villmoare said. “State laws don’t. So now we have two bodies of law. These cases have always been complex before, but now the new law makes the matter much more complicated.”

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Special Sessions

Due-process hearings involving special education students have increased almost 200% since 1990. Education officials attribute the rise to a greater awareness of learning disabilities, the rights of children and parents, and changes to federal and state laws that afford parents more opportunities to challenge decisions of school districts. Hearings trend:

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Source: McGeorge School of Law

Researched by TINA NGUYEN / Los Angeles Times