Page 3: Students Already Identified

Students Not Yet Identified

The most complicated fact pattern arises when the student has a disability that might qualify him or her to receive special education, but the student has not yet been identified by the district as a student who qualifies for special education.

For example, assume that John received good grades through his sixth-grade year, but during seventh and eighth grade he struggled to maintain a "D" average. He has normal intelligence but is having problems in school. In the last two years he had three behavioral referrals for fighting, and he had two more for swearing at his teachers in the classroom. John's parents became concerned about John's anger and outbursts at home. John's teacher and parents shared their mutual concerns about his escalating behavioral problems during parent/teacher conferences. John's parents also took him to see a psychologist, who diagnosed him with anxiety, depression, and a mood disorder, and referred him to a psychiatrist. The psychiatrist prescribed medication for him. John's parents provided all of this information to the school and arranged for school personnel to administer John's medication during the school day. The incident with the "kill list" happened just before John switched to a new medication, which seems to be helping to stabilize his mood.

Under these facts, even though John has not yet been identified as a child with a disability, he may be able to use the protections provided for special education students. A child who has not been found eligible to receive special education nonetheless may assert the protections provided to special education students if the school district had knowledge that the student was a child with a disability before the behavior took place. A district is deemed to have had the requisite knowledge if:

• the child's parent expressed concern in writing to school personnel that the child was in need of special education and related services;
  
  
• the child's behavior or performance demonstrated the need for special education and related services;
  
  
• the child's parent requested a special education evaluation; or
  
  
• the child's teacher or other district personnel expressed concern about the child's behavior or performance to the director of special education or other appropriate district personnel.35

The district will not be deemed to have had knowledge if it conducted an evaluation and concluded that the child was not eligible to receive special education, or if it determined that an evaluation was unnecessary, and it provided notice of its determination to the child's parents.36

Lack of Knowledge. If the district has no basis of knowledge that the student had a disability when the behavior occurred, it may expel the student in the same manner as it would any regular education student.37 If the district asserts lack of knowledge, however, the parents nonetheless may request a special education evaluation to determine the child's eligibility, and the district must conduct an expedited evaluation.38 The "stay put" protection does not apply, so the district may suspend or expel the student without educational services during the evaluation process.39 If, at the conclusion of the evaluation, the child is determined to be eligible for special education, the child is entitled to all of the protections for special education students, including the right to a manifestation determination, educational services, and due process procedures.40 This means that if the child was expelled, the child either must be reinstated if the IEP team determines the behavior was a manifestation of the child's disability, or the child must receive educational services during the term of expulsion if the team determines there was no manifestation of the disability.

John's Case. Although John's parents have orally expressed concerns to teachers, they have not put their concerns in writing or requested a special education evaluation. (This often is the case, as many parents are unaware of their right to request an evaluation or the availability of special services.) Thus, John's parents must rely upon his behavior or performance to show that the district had knowledge that John had a disability before the incident. To prove knowledge based upon the child's behavior, John's attorney must review his records and interview John's parents and possibly John. Information concerning behavior often is in the student's cumulative education file. Documents sent home to parents such as progress reports, homework assignments, or tests may have helpful teacher notations as well. Teachers or administrators also may have made statements to John or his parents regarding their concern about John's behavior and its negative impact on his education.

In John's case, his school records show a decline in grades and a corresponding increase in behavioral referrals for fighting and verbal outbursts. In addition, John's parents and teachers shared information about increased behavioral problems at home and in school.

John's medical records also are relevant, as they should document John's diagnoses of anxiety, depression, and a mood disorder. Importantly, they also may document communications between his doctors and the school that can be used to prove district knowledge.

Based on the information John's school had concerning his behavior at home, his disciplinary record at school, his academic decline, and his medical diagnoses, counsel would have a solid argument that the district had sufficient knowledge to suspect a disability and should have evaluated John for special education. Counsel should raise that issue with the district and request all of the special education protections described above.

If the district lacked knowledge, it could proceed with the expulsion hearing. In that event, counsel immediately should request an expedited evaluation. While the district was conducting the evaluation, it would be entitled to determine John's placement, including expulsion without educational services. If John eventually were found eligible for special education, he would be entitled to all of the procedural protections under special education law, including a manifestation determination and the right to receive educational services even if expelled. If he was found ineligible, the parents would have the right to challenge that finding at a due process hearing.

Conclusion

An attorney's knowledge about the implications of special education law when representing students in school expulsion hearings may be critical to the outcome of the proceeding. In the best-case scenario, an expulsion might be avoided altogether by invoking the protections under special education law. At the very least, however, students with disabilities will receive educational services during the term of their expulsions, a right not afforded all students.

Endnotes

1 School Discipline - Expulsions, Education at a Glance (State of Wisconsin, Department of Public Instruction) April 1999, available at <http://www.dpi.state.wi.us>.

2 Wis. Stat. § 120.13 (1999-2000).

3 Wis. Stat. § 120.13(1)(c)1 (1999-2000).

4 Wis. Stat. § 120.13(1)(c)2 (1999-2000).

5 Wis. Stat. § 120.13(1)(b)2 (1999-2000).

6 Id.

7 Wis. Stat. § 120.13(1)(c)4 (1999-2000). For purposes of this article, it is assumed that the student is a minor.

8 Wis. Stat. § 120.13(1)(c)3 (1999-2000).

9 Wis. Stat. § 120.13(1)(c)3 (1999-2000).

10 Racine Unified Sch. Dist. v. Thompson, 107 Wis. 2d 657, 667, 321 N.W.2d 334, 339 (Ct. App. 1982). The language limiting the superintendent's review to ensuring that procedural mandates were followed was actually dicta. Despite that fact, however, subsequent state superintendents have cited that dicta as defining their scope of review. In addition, the limitation on the superintendent's power of review has survived subsequent legislative changes. Thus, in 1995 the court of appeals declared that the "Racine dicta is embedded in Wisconsin school law." Madison Metro. Sch. Dist. v. Wis. Dep't of Pub. Instruction, 199 Wis. 2d 1, 17, 543 N.W.2d 843, 849 (Ct. App. 1995).

11 Racine Unified Sch. Dist, 107 Wis. 2d at 664, 321 N.W.2d at 337-38.

12 Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986).

13 Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 214 (3d Cir. 2001).

14 Wis. Stat. § 120.13(1)(f) (1999-2000).

15 20 U.S.C. §§ 1400-1487 (1994 & Supp. V 1999).

16 34 C.F.R. § 300.519 (2000).

17 20 U.S.C. § 1415(k)(1)(B)(1994 & Supp. V 1999); 34 C.F.R. § 300.520(b)(1) (2000).

18 20 U.S.C. § 1415(k)(4) (1994 & Supp. V 1999); 34 C.F.R. § 300.523(a) (2000).

19 20 U.S.C. § 1415(k)(4)(A) (1994 & Supp. V 1999); 34 C.F.R. § 300.523(a)(2) (2000).

20 20 U.S.C. § 1415(k)(5) (1994 & Supp. V 1999); 34 C.F.R. § 300.524(a) (2000).

21 20 U.S.C. § 1415(k)(4)(C) (1994 & Supp. V 1999); 34 C.F.R. § 300.523(c), (d) (2000).

22 34 C.F.R. § 300.523(d) (2000).

23 34 C.F.R. § 300.523(f) (2000).

24 20 U.S.C. § 1415(k)(5)(A) (1994 & Supp. V 1999); 34 C.F.R. § 300.524(a) (2000).

25 20 U.S.C. § 1415(k)(6)(A)(i) (1994 & Supp. V 1999); 34 C.F.R. § 300.525(a) (2000).

26 20 U.S.C. § 1415(k)(6)(A)(ii) (1994 & Supp. V 1999); 34 C.F.R. § 300.525(a)(2) (2000).

27 20 U.S.C. § 1415(k)(6)(B)(i) (1994 & Supp. V 1999); 34 C.F.R. § 300.525(b)(1) (2000); see also [Student] v. Richland Sch. Dist., DHA Case No. LEA-00-007 (Wis. Div. Hearings & Appeals, March 3, 2000) (DPI).

28 34 C.F.R. §§ 300.514, 300.524(c) (2000).

29 20 U.S.C. § 1415(k)(1)(A)(ii) (1994 & Supp. V 1999); 34 C.F.R. § 300.520(a)(2) (2000).

30 20 U.S.C. § 1415(k)(2) (1994 & Supp. V 1999); 34 C.F.R. § 300.521 (2000).

31 34 C.F.R. § 300.520(a)(1)(ii) (2000).

32 34 C.F.R. § 300.121(d)(3)(ii) (2000).

33 See id.

34 [Student] v. Richland Sch. Dist., DHA Case No. LEA-00-007 (Wis. Div. Hearings & Appeals, March 3, 2000) (DPI).

35 20 U.S.C. § 1415(k)(8)(A), (B) (1994 & Supp. V 1999); 34 C.F.R. § 300.527(a), (b) (2000).

36 34 C.F.R. § 300.527(c) (2000).

37 20 U.S.C. § 1415(k)(8)(C)(i) (1994 & Supp. V 1999); 34 C.F.R. § 300.527(d)(1) (2000).

38 20 U.S.C. § 1415(k)(8)(C)(ii) (1994 & Supp. V 1999); 34 C.F.R. § 300.527(d)(2)(i) (2000).

39 20 U.S.C. § 1415(k)(8)(C)(ii) (1994 & Supp. V 1999); 34 C.F.R. § 300.527(d)(2)(ii) (2000).

40 20 U.S.C. § 1415(k)(8)(C)(ii) (1994 & Supp. V 1999); 34 C.F.R. §300.527(d)(2)(iii) (2000).