Suspension is temporary.
Basic due process rights are required.
If suspensions are repeated and the cumulative amount of time
suspended approaches 10 days, it may constitute a 'change in
placement' and require complete due process proceedings.
If a series of suspensions that are each of 10 days or were in
duration create a pattern of exclusions that constitutes a
"significant change in placement", the requirements of 3 C.F.R. Sec.
104.35(a) also apply.
- length of suspension
- proximity of suspensions to one another
- total amount of time the child is excluded from
Parents of students in special education program brought action
against school officials and school district arising out of placement
in time-out rooms for in-school suspensions.
Dennis and Sally Hayes were placed in the PSA program for the
1980-81 school year. During that year both children behaved in a
disruptive manner and violated school rules. Consequently, the
children were required, at various times, to stay in a three-foot by
five-foot room for "time-out" periods and in-school suspensions.
School officials placed students in the time-out room for in-school
suspension as a method of punishment, and for short "cool-down"
periods "to ensure the safety of other students in the classroom from
disruptive behavior." Hayes, 669 F.Supp. at 1528. Rather than
sending the children home as a form of punishment, the school
preferred to keep suspended students at school so that the children
being disciplined would not "just roam the streets and goof off." Id.
at 1527. The time-out room was located in an annex of the classroom
so that supervision over the student could be maintained while the
student remained in the room. The district court specifically found
that "the school's use of the time-out room ensures that [the
students] would not be deprived of their educational rights while
they were on suspension," and that "when a student was placed
in the 3' x 5' room for in-school suspension, that student was to be
working on classroom material." Id. at 1528.  This
case is illustrative of the close relationship between the use of
discipline and in-class instruction in providing a child with a "free
appropriate public education." We believe that "[p]roper
conduct and education are inextricably intertwined," DOE by
GONZALES v. MAHER, 793 F.2D 1470, 1491 (9th Cir.1986) and hold that
the discipline of a child in the classroom, including short-term
suspensions and "time-out" periods, is a matter that relates to the
public education of a handicapped child and that therefore falls
within the scope of the EHA.
KAELIN v. GRUBBS
Plaintiff, Michael Kaelin ("Michael"), was a 15 year old ninth
grade student at the Walton-Verona Public Schools during the 1978-79
academic year. He has been identified as a handicapped child since
kindergarten. In August 1978, the Walton-Verona High School
identified and evaluated Michael as a "handicapped or an exceptional
child". Pursuant to an Individualized Education Program ("IEP"), he
was placed in an Educable Mentally Handicapped ("EMH") classroom. On
March 13, 1979, Michael defied the authority of his teacher, William
C. Daniel ("Mr. Daniel"). Michael refused to complete assigned
classroom work. He also destroyed a work sheet and one of Mr.
Daniel's coffee cups. Moreover, in attempting to leave the classroom,
Michael pushed, kicked and hit Mr. Daniel.
The next day, Michael was suspended from school. On April 17,
1979, the Walton-Verona Board of Education ("Board") held a hearing
concerning Michael's behavior. The Board did not convene or consult
the AARC before or during this hearing. Moreover, the Board did not
address the relationship, if any, between Michael's handicap and his
disruptive behavior. On April 18, the Board concluded that Michael
had violated Ky.Rev.Stat. s 158.150 [FN3] andWalton-Verona
Board of Education Policy 609.1. Consequently, the Board expelled
Michael from school for the remainder of the 1978-79 school year.
This expulsion was effective April 30, 1979.
In this case, Michael was expelled without receiving the
procedural protections afforded by the Handicapped Children Act and
Section 504's implementing regulations. The Board did not address the
relationship between Michael's disruptive behavior and his
(2) Change in placement. Change in placement refers to those
actions that cause a significant alteration in programming for a
child who is currently receiving special education and related
services. Such alterations may be admissions and release committee
initiated or may be the result of extenuating circumstances (e.g.
(a) The following actions shall be considered significant
alteration or change in placement for an exceptional child. A change
1. Special education and related services to regular
education, including regular education with support services;
2. One categorical program to another (e.g., TMH to EMH);
3. One program plan to another (e.g. special class to resource
4. One instructional level to another (e.g. elementary to
5. A special school or setting to or from a regular
6. One school district to another school district;
(b) Any change in placement shall follow due process procedures
to insure that exceptional children and their parents are guaranteed
procedural safeguards in decisions regarding identification,
evaluation, and placement, including written parental permission for
change in placement.
(c) Any change in placement shall be subject to established
admissions and release committee procedures and consideration of the
least restrictive environment concept.
1 written notice
2 notice include reasons and rights
3 impartial decision maker
4 appeal to state education agency
Suspension and exclusion of handicapped students:
In S-1 v. Turlington, 635 F.2d 342 (5th Cir.), cert.
denied, --- U.S. ----, 102 *600 S.Ct. 566, 70 L.Ed.2d 473 (1981), the
plaintiff school children were mentally handicapped. These plaintiffs
were expelled from school for alleged misconduct without receiving
the procedural protections required by the Handicapped Children Act,
Section 504, and its implementing regulations. The court held that
"an expulsion must be accompanied by a determination as to whether
the handicapped student's misconduct bears a relationship to his
handicap." Id. at 346. The state and local school authorities
have the burden of determining whether a student's misconduct is a
manifestation of the student's handicap. Id. at 349.
The court did not hold, however, that handicapped children could
never be expelled from school. Rather, "expulsion is still a
proper disciplinary tool under the (Handicapped Children Act) and
section 504 when proper procedures are utilized and under proper
circumstances." Id. at 348.
Unlike the expulsion of a non-handicapped child, however, "the
complete cessation of educational services during an expulsion
period" could not be authorized for a handicapped child."
An expulsion is a change in educational placement within the
meaning of the Handicapped Children Act.
Stuart v. Nappi, 443 F.Supp. 1235, is the seminal case
which addresses this issue. The plaintiff, a high school student with
complex learning disabilities, limited intelligence, and a history of
behavioral problems, was suspended from school following her
involvement in several school-wide disturbances. She contested a
recommendation that she be expelled, requested a hearing and sought
review of her special education program. The court enjoined the
school board from conducting a hearing to expel the plaintiff. The
court reasoned that the Handicapped Children Act prescribed a
procedure for transferring disruptive children. See 42 C.F.R. s
121a.522. Only a professional team analogous to Kentucky's AARC could
change a handicapped child's placement.
The court noted that there was a conflict between the procedures
required by the Handicapped Children Act and the disciplinary
procedures of the local school. The court, however, relied upon a
comment contained in 45 C.F.R. s121a:
While the placement may not be changed (after a complaint
proceeding has been initiated), this does not preclude a school from
using its normal procedures for dealing with children who are
endangering themselves or others. The court interpreted this
regulation and the Handicapped Children Act as prohibiting
disciplinary measures which effectively change a handicapped child's
placement. The court also reasoned that the "right to an education in
the least restrictive environment may be circumvented if schools are
permitted to expel handicapped children." Id. at 1242. Therefore, the
court concluded that the "use of expulsion proceedings as a means
of changing the placement of a disruptive handicapped child
contravenes the procedures of the (Handicapped Children Act)" Id.
The court in Stuart v. Nappi, however, did not hold that
handicapped children were immune from school discipline.
The court stated:
Handicapped children are neither immune from a school's
disciplinary process nor are they entitled to participate in programs
when their behavior impairs the education of other children in the
First, school authorities can take swift disciplinary measures,
such as suspension, against disruptive handicapped children.
Secondly, a (special education committee) can request a change in the
placement of handicapped children who have demonstrated that their
present placement is inappropriate by disrupting the education of
other children. The Handicapped Act thereby affords schools with both
short-term and long-term methods of dealing with handicapped children
who are behavioral problems. Id.
In Doe v. Koger, 480 F.Supp. 225, the plaintiff, a mentally
handicapped student, was expelled for disciplinary reasons. The
plaintiff requested and was denied a special hearing used in the
placement of handicapped students. The court held that the language
of the Handicapped Children Act and the accompanying regulations
indicated clearly that the Act was intended to limit a school's right
to expel handicapped students. The court noted that neither 20 U.S.C.
s 1415 nor any of the accompanying regulations provide for the
expulsion of handicapped students. Moreover, schools were not to
expel students whose handicaps caused them to be disruptive. Instead,
the schools were to appropriately place these students in a more
restrictive environment. Therefore, the court concluded that a
handicapped child could not be expelled if his handicap caused his
The court stated:
For an appropriately placed handicapped child, expulsion is just
as available as for any other child. Between a handicapped child and
any other child, the distinction is that, unlike any other disruptive
child, before a disruptive handicapped child can be expelled, it must
be determined whether the handicap is the cause of the child's
propensity to disrupt. Doe v. Koger, 480 F.Supp. at 229.
We adopt the analysis contained in Turlington. Accordingly, we
hold that an expulsion from school is a change in placement within
the meaning of the Handicapped Children Act. Under the Turlington
analysis, a handicapped child is not totally immunized from
disciplinary action by the Handicapped Children Act, Section 504, or
supporting case law which holds that an expulsion is a change in
placement. First, it is well-settled that a handicapped child may be
suspended temporarily without employing the procedures in 20 U.S.C. s
1415. Stuart v.Nappi, 443 F.Supp. at 1242; Sherry, 479 F.Supp. at
1337; Doe v. Koger,480 F.Supp. at 229. Second, as long as the
procedural protections of 20 U.S.C. s 1415 are followed, a
handicapped child may be expelled in appropriate circumstances.
Turlington, 635 F.2d at 348; H. R. v. Hornbeck, 524 F.Supp. 215, 219
(D.Md.1981); Doe v. Koger, 480 F.Supp. at 229. A handicapped child
may not be expelled, however, if his disruptive behavior was a
manifestation of his handicap. Turlington, 635 F.2d at 348; Doe v.
Koger, 480 F.Supp. at 229. Moreover, even during the expulsion period
there may not be a complete cessation of educational services.
Turlington, 635 F.2d at 348. Therefore, handicapped children can
generally be disciplined in the same manner as nonhandicapped
"It does not embrace conduct that bears only an attenuated
relationship to the child's handicap. An example of such attenuated
conduct would be a case where a child's physical handicap results in
his loss of self esteem, and the child consciously misbehaves in
order to gain the attention, or win the approval, of his peers.
Although such a scenario may be common among handicapped children, it
is no less common among children suffering from low self esteem for
other, equally tragic reasons." Doe v. Mather, 793 F.2d, 1470
Graduation and 'change of placement:
CRONIN v. BOARD OF EDUCATION OF the EAST RAMAPO CENTRAL SCHOOL
Handicapped student and student's parents brought motion for
preliminary injunction to require school district to continue
student's educational placement pending final judgment as to whether
student should remain in his educational placement or be graduated.
The District Court, Robert J. Ward, J., held that: (1) decision to
graduate handicapped student was "change in educational placement"
under Education of Handicapped Act that triggered all procedural
protections of Act; (2) handicapped student's removal from
educational program by graduation during pendency of administrative
proceedings violated stay-put provision of Education of Handicapped
Act; and (3) handicapped student was entitled to preliminary
injunction to require board of education and Commissioner of
Education to reinstate handicapped student to educational