ARTICLES
Balancing the Rights of School Districts in Wake of Shootings
While it is unknown whether the student perpetrators in these massacres were identified as special education students in need of emotional support, public school districts are constrained to abide by federal and state laws limiting their authority to discipline and place students in schools outside the district where they might receive needed therapeutic support.
Regarding discipline, federal special education laws do not permit expulsion of special education students if the conduct leading to the expulsion was a manifestation of the student’s disability. This means that if a student identified as Emotionally Disturbed engages in behavior typical of that student’s profile, the student simply cannot be expelled through typical discipline proceedings as would be a nondisabled student. Rather, the school district is required to complete a behavior assessment and create, or modify, a positive behavior support plan.
While school districts can unilaterally remove students from the school district - for not more than 45 school days- if the school can establish that the student committed serious bodily injury, special education law borrows this definition from the federal crimes code. In other words, threats do not meet the definition, nor does what most parents would consider to be extremely violent conduct. A school district can seek an order from an administrative law judge to change the student’s educational placement, but this process is not a quick one. Additionally, in Pennsylvania, schools are limited in disciplining behavior of all students which occurs off-campus, unless it can show a disruption to the educational environment.
Concerning educational placement of emotionally disturbed students, federal law also requires that all special education students be educated in the least restrictive environment, meaning with non-disabled peers, to the maximum extent appropriate. If the school believes that a therapeutic environment is more appropriate, it must either obtain consent from the parents, or ask an administrative law judge to order the placement, after a lengthy hearing at taxpayer cost.
Such a decision can, however, be appealed through all levels of the court system. Even if a school district obtains parental consent or a favorable ruling, the therapeutic educational environments are free to refuse to accept students, unlike public school districts.
Compounding the problem is that in Pennsylvania, the mental health system is woefully limited in terms of the supports that it can or will provide for children with mental health challenges, both in scope and duration, often throwing the problem back at public school districts once the determination is made that no medical necessity for treatment continues to exist. Conversely, where it is determined that a student’s medical and educational needs are inextricably intertwined, the law places the responsibility of payment for residential therapeutic placements at a taxpayer price tag of hundreds of thousands of dollars per student per year, on school districts.
In light of all this, it is not difficult to appreciate the dilemma public schools face when a student, for example, posts a threat or pictures of guns on social media outside of school, an occurrence which occurs much more frequently than the general public might guess. Protocol is, of course, to immediately report the behavior to law enforcement, but the student still has the right to be educated.
With all of this is mind, perhaps the question should not be what the school district did not do. Perhaps the better questions are these: 1) can our school districts advocate for consistent state and federal funding in order for them to upgrade their capital facilities to make it more difficult for the tragic events to occur; 2) can they advocate for changes in the state and federal law to allow school districts more flexibility in removing a potentially dangerous student, regardless of the root cause of the conduct; and 3) if the public school system is charged, if not by law, but by circumstance and public opinion, with serving as educational provider, mental health provider, law enforcement, and intelligence agency, will the Department of Education assist in lifting that weight from taxpayer shoulders of our individual school districts?
The issues surrounding mental health and the manifestation determination requirement are all unintended consequences of the inclusion movement. As in most areas of state and constitutional law, there is a constant balancing of the rights of certain constituencies.
It is clearly time to begin rethinking that current balancing of rights by school district advocacy for changed legislation and litigation where the school district or districts are plaintiffs. That certainly is what the student plaintiff’s bar and student advocacy groups engage in. Just as it is their right to do so, it is also the right of the school districts to do so. Such advocacy or litigation has to be done thoroughly with a well-constructed plan that has specific goals. That plan has to be created in such a fashion that all of the constituencies understand that school districts are not looking to abdicate their responsibility to educate special needs children, but rather they need assistance, flexibility and guidance on the more complex cases where a specific group of students’ needs are a significant threat to other students, teachers and administration.
About the Author: Gabrielle C. Goham joined Delaware County full-service law Raffaele Puppio in 2010 as a Partner and Chair of the Special Education Department. She represents school districts, charter schools, private schools and intermediate units in special education matters.