Special-ed rules still in dispute

Posted: Monday, July 24, 2000

An emotionally disturbed student who threw a keyboard, hitting a teacher in the mouth, couldn't be removed from the classroom for long because of federal rules, says one former Alaska school administrator.

Some special education students can be a danger to themselves and others, ``and often our hands are tied in responding in a swift manner,'' said Darroll Hargraves, a former schools superintendent in Alaska who now directs the Alaska Council of School Administrators.

Some members of Congress now want to make it easier to suspend or expel special ed students, and to not provide them with schooling when that happens.

On the other hand, children's advocates say special education students are unreasonably swept up in schools' zero-tolerance policies for weapons and violence.

Steven Essley, an attorney in Anchorage with the Disability Law Center of Alaska, said he sees middle school special ed students facing expulsion for verbal threats.

``Often, what would be an expected behavior based upon their disability is being seen as an extreme behavior that leads to the possibility of expulsion, due to the zero-tolerance rule,'' said Faye Nieto, executive director of Anchorage-based Parents Inc., which trains parents of children with disabilities.

School officials are looking for ways to get rid of students, instead of ways to change their behavior as the special ed law requires, Nieto said.

Special education includes students with sensory and other health impairments, brain damage, mental retardation, emotional disturbances, attention deficit and hyperactivity disorders, autism, and learning disabilities.

The state is now taking public comment on adopting the federal discipline rules, published last year, for the Individuals with Disabilities Education Act of 1997. It's a formality, but it comes during growing controversy over the rules.

``There are some people who won't do it until they see it in their own state regs,'' said PJ Ford Slack, the outgoing state director of special education. Some Alaska schools have not complied with the rules because of staff turnover or lack of understanding, she said.

The rules were designed to keep special ed students in school when possible, and to continue their education even when they're expelled or suspended for 10 days or more.

``The intent of the regs is to not provide an incentive for school districts to force someone else to deal with the problems,'' said Bob Briggs, a Juneau attorney with the Disability Law Center of Alaska.

When Congress first passed a special ed law in 1975, it found that half of children with disabilities weren't getting a public education that met their needs, and one million of them were excluded from schools entirely.

Under the rules, schools can't expel or suspend students for long periods if the disability caused the inappropriate behavior. But schools can remove students for weapon and drug offenses in 45-day periods that can be repeated. Schools have to go to a hearing officer to expel or suspend dangerous students for a long time.

Changing the law is a matter of fairness, said Bruce Hunter, director of public policy for the Arlington, Va.,-based American Association of School Administrators.

``If two kids are equally capable, and they commit the same offense, unless there's an extreme mitigating circumstance they ought to be treated the same way,'' he said.

Under the rules, students can stay in their current school setting, which is often the regular classroom, while their parents dispute a proposed suspension or expulsion, unless it's for weapons, drugs or dangerous behavior. Schools can ask for a quick hearing or a court order.

It's the gap between the request and the order to remove the child that worries some administrators, such as Michael Melear, the director of student support services at the Mat-Su Borough School District.

It can take days to get a hearing officer, and judges are looking for insurmountable evidence before they grant an order for a dangerous student, he said.

Schools also are concerned about the expense of providing other places to teach suspended and expelled kids. The Mat-Su school district staffs an off-campus program for up to 14 students with a teacher, two tutors and a counselor, Melear said.

Those settings often help students calm down, children's advocate Nieto said. But parents are worried about their quality, given the state's new academic standards and high school exit exam.

And attorney Briggs is concerned the expense of following the rules may provoke school districts to refer more special ed kids to the criminal justice system. It may be easier to land children in jail than to expel them, he said.

Some advocates and administrators are fairly satisfied with the law and its implementation. The Juneau School District has been able to remove students who may be a danger, said Ron DeLay, director of student services.

Jan Guertin, the Juneau advocate for Parents Inc., said she hasn't seen schools' zero-tolerance policies conflict with the special ed rules.

But the National Council on Disability, a federal advisory agency, said suspensions and expulsions are increasing nationwide, citing a New Jersey middle school student who was kicked out for throwing an object and tipping over a chair.

The only comprehensive statistics available for special ed discipline are for the 1998-1999 school year, and there's nothing to compare them with. Alaska reported that 270 separate special ed children were expelled or suspended for 10 days or more. That's out of about 17,771 special ed children statewide, some of whom aren't school-age yet.

There were 176 special ed students removed from school for a drug or weapon offense. Federal law defines any object that can cause serious harm as a weapon. Only nine students were removed for being a danger.

Written comments on the state's adoption of the federal rules must be received by Aug. 25 at the Alaska Department of Education, Regulations Review, 801 10th St., Suite 200, Juneau, Alaska 99801-1894.

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