15-Jan-94 14:57:52 Fm: Pete and Pam Wright 75116,364 To: Elisa Davis (Sysop) 71232,3204 Elisa: With regard to the discussion between you and Ginsu re: suspension expulsion discipline of our children, the following information may be of interest. I have several cases going on right now re: issues of suspension, expulsion of 94-142 and Section 504 children for behaviors that may or may not be causally related to the handicapping condition. To understand if the law is being applied correctly, it is necessary to understand the law's history and development. First, it is essential to understand the difference between the two. Public Law 94-142 is now known as the Individuals with Disabilities with Education Act or IDEA (was formerly Education for All Handicapped Children Act-EAHCA, and other titles over time EHA, etc): these children have handicapping conditions that adversely affect educational performance. Section 504 of The Rehabilitation Act children have handicapping characteristics that (purportedly) do not affect the child's educational performance. This explains why we have two areas of law that overlap, often creating confusion. For years, school systems said that ADD was a medical condition and not an educational issue and thus special ed services and accomodations were denied to these children. Smart strategists then asserted that an ADD condition entitled one to 504 accomodations. Since then the Feds have said ADD may be a 94-142/IDEA 'other health impaired' handicap. Honig was a landmark US Supreme Court decision that had a major impact on all of this several years ago, whether child is IDEA or 504. I discuss this in my 84K library article re: the Supreme Court's 11/93 decision in Florence County School District Four v. Shannon Carter that starts out with "Attys remarks re landmark . . .etc" All of this law flows from the original 1973 Mills case. Since Honig, the states have revised their regs to conform to Honig. The U. S. Office of Civil Rights (OCR) and the U.S. Dept of Education (OSEP) Office of Special Education Services have issued opinion letters that explain the handling of 504 children (OCR) and 94-142/IDEA children (OSEP) in the area of discipline. They have followed pretty much the same paths in their interpretations, with a slight twist. *Cumulative* suspensions in excess of ten days for behaviors related to the handicap require a re-eval, trigger change of placement procedures, and point out the necessity to take a look at the child's IEP and modify accordingly. However, if there is a dangerousness element involved re: protection of other children and behaviors are related to the handicap, then the school system can apply to a court for an injunction to allow for the child to be removed for more than ten days, although educational services through homebound or other services may still need to be provided. There are only a few published decisions where this has happened. (See "Discipline" topic heading in Individuals with Disabilities Education Law Reporter IDELR.) With a 504 child, if the behavior is not related to the handicap, then suspensions and/or expulsion can continue without a requirement to provide continued educational services. (Thus the importance of being sure the child is classified as a 94-142/IDEA child. Rarely have I found a true ADD child w/o any visual, perceptual, auditory processing deficits, sequencing disorders, that manifest themselves w/ problems in reading, writing, arithmetic, etc.) With a 94-142/IDEA child, whether the behavior is or is not causally related to the handicap, OSEP says very clearly that the child must continue to receive an appropriate education! I have not seen any interesting case law or OCR, OSEP opinion letters re dangerousness/violence w/ a 94-142/IDEA child and maintenance of an appropriate education. I recently had a case where an 11th grade LD/ADD child was previously receiving inappropriate public school special ed services. Parents removed child and placed him into a military school. He was kicked out in 6 weeks, so was then placed into a small, non special ed boarding school. He stayed there for 6 months. During that time, he and several other youngsters ended up briefly having a gun (old, rusty, had belonged to a grandfather) in their possession (novelty curiosity issue). All were kicked out of the school but allowed to finish the school year by working at home and taking exams, etc. In Fall, 93, parents sought to return child to his former public school special ed program which he had been in since 3d grade. However, the school system had a "blanket policy" re: guns, regardless of where incident took place. Policy was that child had to be out of school for one year (which is also authorized in a state statute authorizing same regarding weapons offenses). Youngster was above average in IQ but written language and math skills at elementary school level plus the usual ADD problems. Parents located a very small special ed residential school that focused on remediation of LD problems. Child's personality has totally turned around: he is doing great, his educational achievement scores on the rise. Pursuant to the Carter case, I asserted that public school defaulted on their obligation and that under 504 and 94-142 principles, child was entitled to a free appropriate public education (FAPE). I alleged that the gun incident (impulsiveness, lack of awareness of consequences, etc) was causally related to his handicapping condition and that child had to be provided with an education. As an opposite tack, I also argued that even if gun incident was not causally related, child was handicapped and entitled to a FAPE and school system defaulted, thus sidestepping the OCR OSEP difference. Hearing Officer held that child continued to be LD/ADD and was entitled to FAPE. Regardless of school's policy, public school defaulted, thus parents entitled to reimbursement for 93-94 school year. Learned this week that school system has appealed. That's the present status. I hope this has been of interest and informative. Pete __________________________________________________________________________ This article has been downloaded from the ADD Forum on CompuServe, and may be distributed freely as long as the contents of the file are unchanged. Because the CompuServe ADD Forum is new, we are frequently asked how to join CompuServe and get on the forum. Call 1-800-524-3388 and ask for rep #464. Outside the US/Canada call +1-614-457-0802.