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Suspension Notes

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 school

Time out:

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. [2] 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.

Due process:


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 handicap.

(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. family moves).

(a) The following actions shall be considered significant alteration or change in placement for an exceptional child. A change from:

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 room);

4. One instructional level to another (e.g. elementary to middle school);

5. A special school or setting to or from a regular school;

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.

Procedural safeguards

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. at 1243.

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 program.

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 disruptive behavior.

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 children.

"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:


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 program.

Injunction granted.