Recent Eighth Circuit Case Law: A Lesson in What Not to Do in Disciplining Disabled Students – By: Alefia Mithaiwala

Published by MARE, January 2010

Consider this: a high school principal suspends a disabled student on September 8 for fighting and bringing a pocket knife to school.  He tells the student and his parent that the suspension is “until a hearing before the school board can be arranged.” Problem number 1.  Then, because the student is disabled, the district’s special education director convenes a multidisciplinary team to conduct a manifestation determination on September 13.  Problem number 2.  The team finds that the student’s misconduct is unrelated to his educational disability (learning disabled). The team also agrees to change his educational placement to an after school alternative school, where he would receive only a portion of the educational services he received at the district’s high school.  The special education director then informs the principal that, as of September 13, the student was “no longer suspended” because the IEP team changed his educational placement. Problem number 3.

The student remains in the alternative placement for 38 days until his IEP team changes his placement back to full time at the high school.  In the meantime, the parent demands the hearing before the school board that the principal promised.  The district responds that the student and parent are not entitled to such a hearing before the school board because there was no long term suspension.   The parent then files suit in federal court, claiming that the alternative after school placement was a “constructive long term suspension” and triggered the district’s obligation to afford the parent and the student a hearing before the school board.

These are the facts of a recent Eighth Circuit[1] decision, Doe v. Todd Co. Sch. Dist.  Though the case involves a Minnesota School District, it is certainly feasible that a similar situation could land a Missouri school district in the same type of litigation.  To avoid such a situation, certain precautions should be taken.

The first and most crucial mistake in the Doe case is that the high school principal issued a suspension for an indefinite and open-ended length of time.   In Missouri, pursuant to RSMo. § 167.171, principals may only issue a suspension of 10 or less school days (commonly referred to as a short term suspension).  Pursuant to the 1975 Supreme Court case of Goss v. Lopez, such short term suspensions require only minimal due process, and do not require a hearing before a district’s board of education.  In Missouri, and also pursuant to RSMo. §167.171, only a district’s superintendent may issue any suspension longer than 10 school days (commonly referred to as a long term suspension), and only students issued a long term suspension are entitled to a hearing before the board of education.

If a Missouri principal issued an indefinite suspension similar to the one issued by the Doe principal, that suspension would be outside the bounds of his statutory authority.    In addition, any promise of a board of education hearing, such as that promised in Doe, would be premature, unless and until the district’s superintendent issued a long term suspension.

The second issue in the Doe case involves the improper timing of a manifestation determination under the Individuals with Disabilities Education Act (“IDEA”). Under the IDEA, disabled students are entitled to a manifestation determination only when there is a decision to change placement through discipline.  A disciplinary change of placement occurs in only one of three situations in Missouri: 1) a superintendent issues a long term suspension, 2) a board decides, after a hearing, to expel, or 3) after a series of short term suspensions, the district administratively determines that such short term suspensions have resulted in a pattern of removals.  The  Doe case does not indicate a pattern of removal. In fact, the court’s analysis clearly indicates that the manifestation determination was held because of the anticipated (although not yet issued) long term suspension.  Unfortunately, holding a manifestation determination before it is legally required (i.e. before a decision for a disciplinary change of placement has been made) can have real consequences under the IDEA.  If a premature manifestation determination is held and a student challenges the results by filing an IDEA due process request, the district will be unable to implement an after-imposed long term suspension and the student will return to his regular educational placement pending the due process hearing, pursuant to the IDEA’s “stay-put” provision. On the other hand, if the manifestation determination is properly held after the long-term suspension has been issued and the student challenges the results through due process, his stay-put placement will be the long-term suspension.  Lesson learned:  a principal should issue a short term suspension; the superintendent should quickly decide on and issue a long term suspension; and finally, within ten school days of the superintendent’s decision, the manifestation determination should be held.

The third critical issue raised by the Doe case involves a misunderstanding of the separate and distinct roles of the IEP team and the district’s administration in the discipline of disabled students. An IEP team has no authority to discipline.  When a disciplinary change of placement has occurred, it is the responsibility of relevant members of the IEP team only to determine whether the misconduct is a manifestation of the student’s disability. If the team decides that it is not a manifestation, as the team did in Doe, the long-term suspension can and should be implemented.  The IEP team’s role at that juncture is only to determine what services are necessary to enable the student to continue to receive a free appropriate public education, so as to enable the child to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the student’s educational goals.  If the team determines that a change in placement is necessary, that decision does not “cancel” any long term suspension already issued.

In addition and in sum, the Doe case is a good reminder that educational changes of placement, as determined by a student’s IEP team, stand separate and apart from disciplinary changes of placement imposed by a district’s administration.  In that same vein, the Doe case also gives good reason to examine your district’s practices to ensure that IEP teams are not prematurely conducting manifestation determinations or improperly making discipline decisions.  

[1] The Eighth Circuit encompasses Missouri as well as Arkansas, Iowa, Minnesota, Nebraska, North Dakota and South Dakota.

© 2010 Mickes Goldman O’Toole, LLC

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