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S. Hrg. 104-129

REAUTHORIZATION OF THE IDEA: DISCIPUNE

ISSUES

Y4.L11/4:S. HRG. 104-129

HEARING

BEFORE THE

SUBCOMMITTEE ON DISABILITY POLICY

OF THE

COMMITTEE ON

LABOR AND HUMAN RESOURCES

UNITED STATES SENATE

ONE HUNDRED FOURTH CONGRESS

FIRST SESSION

ON

EXAMINING THE EFFECT OF FEDERAL POLICY ON THE ABILITY OF
SCHOOL SYSTEMS TO DISCIPLINE STUDENTS WITH DISABILITIES



JULY 11, 1995



Printed for the use of the Committee on Labtfr and- Human Resources





-J



cc



U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1995



For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
ISBN 0-16-047537-6



S. Hrg. 104-129

REAUTHORIZATION OF THE IDEA: DISCIPUNE

ISSUES

Y4.L11/4:S. HRG. 104-129

HEARING

BEFORE THE

SUBCOMMITTEE ON DISABILITY POLICY

OF THE

COMMITTEE ON

LABOR AND HUMAN RESOURCES

UNITED STATES SENATE

ONE HUNDRED FOURTH CONGRESS

FIRST SESSION

ON

EXAMINING THE EFFECT OF FEDERAL POLICY ON THE ABILITY OF
SCHOOL SYSTEMS TO DISCIPLINE STUDENTS WITH DISABILITIES



JULY 11, 1995



Printed for the use of the Committee on LabfJr and Human Resources





-■-J



U.S. GOVERNMENT PRINTING OFFICE
CC WASHINGTON : 1995



For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
ISBN 0-16-047537-6



COMMITTEE ON LABOR AND HUMAN RESOURCES



NANCY LANDON KASSEBAUM. Kansas, Chairman



JAMES M. JEFFORDS, Vermont
DAN COATS, Indiana
JUDD GREGG, New Hampshire
BILL FRIST, Tennessee
MIKE DeWINE, Ohio
JOHN ASHCROFT, Missouri
SPENCER ABRAHAM, Michigan
SLADE GORTON, Washington

Susan K. HatTAN, Sta/f Director
Nick LjiTLEFIELD, Minority Sta/f Director and Chief Counsel



EDWARD M. KENNEDY, Massachusetts

CLAIBORNE PELL, Rhode Island

CHRISTOPHER J. DODD, Connecticut

PAUL SIMON, Illinois

TOM HARKIN, Iowa

BARBARA A. MIKULSKI, Maryland

PAUL WELLSTONE, Minnesota



Subcommittee on Disability Policy

BILL FRIST, Tennessee Chairman



TOM HARKIN, Iowa
EDWARD M. KENNEDY,
PAUL SIMON. Illinois



JAMES M. JEFFORDS, Vermont
MIKE DeWlNE, Ohio
SLADE GORTON, Washington
NANCY LANDON KASSEBAUM, Kansas
(Ex Omcio)

Patricia A. Morrissey, Staff Director
Robert Silveretein, Minority Sta/f Director



Massachusetts



(ID



81-



CONTENTS



STATEMENTS
July 11, 1995



Page

Frist, Hon. Bill, a U.S. Senator from the State of Tennessee 1

Harkin, Hon. Tom, a U.S. Senator from the State of Iowa 3

Jones, Nancy, stalT attorney, American Law Division, Congressional Research
Service, Washington, DC; and Carl Cohn, superintendent, Long Beach Uni-
fied School District, Long Beach, CA 5

Gorton, Hon. Slade, a U.S. Senator from the State of Washington 19

Fell, Bonnie, parent Skokie, IL, representing Children and Adults With At-
tention Deficit Disorders; and Shirley Igo, vice president of legislative activ-
ity. National Parent-Teacher Association, Washington, DC 20

Weatherly, Charles L., Weatherly Law Firm, Duluth, GA, representing the
National School Boards Association; Diane Lipton, Disability Rights and
Education Defense Fund, Berkeley, CA; E. Don Brown, principal. Hurst,
TX, representing the National Association of Secondary School Principals
Association; Kathleen B. Boundy, Center For Law and Education, Boston,
MA; Marcia Reback, president, Rhode Island Federation of Teachers and
Allied Health Professionals, Providence, RI, representing the American Fed-
eration of Teachers; and Stevan Kukic, director. Services For Students
At Risk, Utah State Department of Education, Salt Lake City, UT 32

APPENDIX

Statements, articles, publications, letters, etc.:

Nancy Lee Jones 53

Shirley Igo 57

Diane Lipton 63

E. Don Brown 67

Marcia Reback 69

Stevan J. Kukic 73

National Association of Elementary School Principals 77

National Education Association 79

Letter to Senator Harkin from Carl Cohn, superintendent of schools.

National Urban Reform Network, August 1, 1995 82

Carl Cohn 84

Charles L. Weatherly 87

Kathleen B. Boundy 97

(III)




JAMI
DAN

JUDI
BILL
MIKI
JOHl

SPENCtK AiJKAnAlvi, iniciiigoii

SLADE GORTON. Washington

Susan K. HatTAN, Staff Director



CES



Massachusetts
le Island
t, Connecticut



i, Maryland
jinesota



Nick LiiTLEFIELD, Minority Staff Director and Chief Counsel



Subcommittee on Disability Policy

BILL FRIST, Tennessee Chairman



JAMES M. JEFFORDS, Vermont
MIKE DeWINE. Ohio
SLADE GORTON, Washington
NANCY LANDON KASSEBAUM, Kansas
(Ex Officio)

Patricia A. Morrissey, Sta.ff Director
Robert Silveretein, Minority Staff Director



TOM HARKIN. Iowa

EDWARD M. KENNEDY, Massachusetts

PAUL SIMON, Illinois



(II)



CONTENTS



STATEMENTS
July 11, 1995



Page

Frist, Hon. Bill, a U.S. Senator from the State of Tennessee 1

Harkin, Hon. Tom, a U.S. Senator from the State of Iowa 3

Jones, Nancy, staff attorney, American Law Division, Congressional Research
Service, Washington, DC; and Carl Cohn, superintendent. Long Beach Uni-
fied School District, Long Beach, CA 5

Gorton, Hon. Slade, a U.S. Senator from the State of Washington 19

Fell, Bonnie, parent Skokie, IL, representing Children and Adults With At-
tention Deficit Disorders; and Shirley Igo, vice president of legislative activ-
ity. National Parent-Teacher Association, Washington, DC 20

Weatherly, Charles L., Weatherly Law Firm, Duluth, GA, representing the
National School Boards Association; Diane Lipton, Disability Rights and
Education Defense Fund, Berkeley, CA; E. Don Brown, principal. Hurst,
TX, representing the National Association of Secondary School Principals
Association; Kathleen B. Boundy, Center For Law and Education, Boston,
MA; Marcia Reback, president, Rhode Island Federation of Teachers and
Allied Health Professionals, Providence, RI, representing the American Fed-
eration of Teachers; and Stevan Kukic, director. Services For Students
At Risk, Utah State Department of Education, Salt Lake City, UT 32

APPENDIX

Statements, articles, publications, letters, etc.:

Nancy Lee Jones 53

Shirley Igo 57

Diane Lipton 63

E. Don Brown 67

Marcia Reback 69

Stevan J. Kukic 73

National Association of Elementary School Principals 77

National Education Association 79

Letter to Senator Harkin from Carl Cohn, superintendent of schools.

National Urban Reform Network, August 1, 1995 82

CariCohn 84

Charles L. Weatherly 87

Kathleen B. Boundy 97

(111)



REAUTHORIZATION OF THE IDEA:
DISCIPLINE ISSUES



TUESDAY, JULY 11, 1995

U.S. Senate,
Subcommittee on Disability Policy,
OF THE Committee on Labor and Human Resources,

Washington, DC.

The committee met, pursuant to notice, at 2 p.m., in room SD-
430, Dirksen Senate Office Building, Senator Frist (chairman of the
subcommittee) presiding.

Present: Senators Frist, DeWine, Grorton, Harkin, Simon, and
Wellstone.

Opening Statement of Senator Frist

Senator Frist. I call to order this hearing of the Subcommittee
on Disability Policy entitled "Effects of Federal Policy on the Abil-
ity of School District Personnel to Discipline Students with Disabil-
ities."

The purpose of this hearing is threefold: first, to create a public
record on the effects of Federal policy on the ability of school dis-
trict personnel to discipline students with disabilities who are a
danger to themselves or others; second, to learn how Part B of the
Individuals with Disabilities Education Act might be amended to
spell out the scope and limits of educators' discretion when stu-
dents with disabilities are a danger to themselves or others; and
third, to lay the important groundwork for a continuing dialogue
throughout this summer so that together we will be able to craft
provisions that will be included in our comprehensive reauthoriza-
tion of IDEA to be completed this fall.

I wish to thank my colleagues who will be here shortly. Senators
Gorton and Harkin, for helping me select witnesses for this hear-
ing. The witnesses today are individuals who have expertise and
knowledge about current Federal policy on discipline and its ef-
fects. They are individuals who have participated in or observed
situations in which disciplining students with disabilities who
posed a danger to themselves or others had to be resolved. And
they are individuals who have pledged themselves to assist us in
finding a workable solution in law, and in practice.

At the outset, I wish to emphasize that I understand the concern,
the frustration, the passion, the fear and the resolve that brought
many people here today. We all want safe schools. We all want
teachers to be able to teach and students to be able to learn.

(1)



Everyone in this room is committed to the provision of a free ap-
propriate public education for students with disabihties. Everyone
in this room must acknowledge that whatever solutions we identify
and promote with regard to students with disabilities who are a
danger to themselves or others are only a part of the needed over-
all solution.

We cannot substantially reduce overall violence in America's
schools by what is advocated today. We can, however, identify solu-
tions that serve as models for those who must deal with students
who are dangerous, but not protected by procedural safeguards in
IDEA or by other civil rights laws.

Our mission this afternoon is limited in scope. We are focused
today on students with disabilities who are a danger to themselves
or others. We are not focused today on students who have trouble
paying attention, students who need more guidance and super-
vision when working with peers, and students who verbally chal-
lenge assignments, directions, or reprimands.

However, I will concede that to the extent that educators lack the
training, lack the resources and the will to appropriately address
such behaviors when they first occur, such behaviors may be the
antecedents of dangerous behavior later.

We are addressing current Federal policy with regard to dis-
cipline when applied to students with disabilities who are dan-
gerous. We are looking for answers to specific questions: What is
current policy? Is that policy really understood? Is that policy fol-
lowed? When the policy is followed, does it work? To the extent
that it is not understooa, is not followed, or does not work, how can
we strengthen it?

These are important, fundamental and reasonable questions. I do
not believe that we need to abridge civil rights to get to answers.
I do believe that unless we work together and engage in thoughtful,
tempered conversation, a solution will elude us.

This hearing is only the beginning. I commit the resources of the
Senate Subcommittee on Disability Policy to continuing the dia-
logue we began today. A solution — a solution that is in everyone's
best interest — is within our grasp.

Three months from now, I want to be able to look into the eyes
of children with and without disabilities and say, "Come to school,
learn, make friends, and be safe." I want to be able to look into the
eyes of parents of children with and without disabilities and be
able to say, "Send your children to school. They will be treated fair-
ly and with respect. They will learn, and they will be safe." I want
to be able to look into the eyes of general and special education
teachers and say, "If given new challenges to face, you will be given
the tools and help you need. You will be able to teach, to make a
difference, and to feel safe." I want to be able to look into the eyes
of principals, superintendents, and school board members and say,
"We have given you tools to help you make schools safe; use them
wisely and fairly. Minds are at stake."

We have within our power the ability to make these statements
come true. Please, let us accomplish that, and let us do it.

Let me briefly turn to what our plans will be today and review
how we are going to be running the next hour and 45 minutes or
so. To allow maximum time for our witnesses today, we will follow



the policy, as is customary before the Senate Labor and Human Re-
sources Committee, with regard to opening statements. Other
members who will be coming in and out of the room will be allowed
to make opening statements at the time of their questions as we
go through the process. We therefore will proceed directly with the
first panel.

In the interest of fairness to our witnesses and to our colleagues,
I ask that my fellow members keep their remarks to 5 minutes per

f)anel. I urge witnesses to make their statements brief, trying to
imit them to about 5 minutes. We will be using the light system,
and all witnesses' full statements will be entered into the record.

The hearing record will remain open for individuals who would
like to submit written testimony, no more than 10 pages, regarding
Federal policy on disciplining students with disabilities who are a
danger to themselves or others until August 11, 1995. At that time,
the hearing record will be closed.

In the interest of time, Senator Harkin who is now involved in
another issue and will be with us shortly, and has asked that his
counsel, Bob Silverstein, be allowed to read his opening statement.
That way, when Senator Harkin arrives, we will be able to proceed
directly with questioning.

Mr. Silverstein?

Opening Statement of Senator Harken

Mr. Silverstein. This is Senator Harkin's opening statement.
The purpose of this hearing is to examine whether the Individuals
with Disabilities Education Act supports or impedes the abilitv of
teachers, administrators, and school officials to maintain a school
environment that enhances student achievement and citizenship,
provides for meaningful parent involvement and participation, and
is safe and conducive to learning for all children, including children
with disabilities.

In other words, does IDEA support the achievement of our Na-
tional Education Goals, and if not, what changes should we make?

This issue is every important to me. My 13-year-old daughter
Jenny attends public schools. My constituents tell me that the pro-
liferation of violence in schools is among their greatest concerns.
Parents with disabled children express tne same concern. In fact,
many parents with disabled children tell me that their concern is
even more pronounced because many of their children are likely to
be the victims of violence and teasing and are often highly distract-
ible.

We all support efforts to make our schools safer and more condu-
cive to learning. As this hearing proceeds, it is my hope that we
can keep the hyperbole to a minimum. This subcommittee, which
I chaired for 8 years, has a history of developing broad-based, bi-
partisan consensus solutions to issues addressing people with dis-
abilities. If we remain constructive, and we recognize the concerns
raised by all witnesses, I am certain we can achieve a well-rea-
soned solution that increases the likelihood that the National Edu-
cation Goals will be achieved for all children, including children
with disabilities.

I would like to share with the witnesses some of the issues that
I expect will be explored during this hearing. Should we trust



teachers, administrators and school officials by providing them
with flexibility and discretion to maintain a school environment
that is safe and conducive to learning? Should that trust and dis-
cretion be unfettered and without accountability? Should we trust
parents and expect that they will provide critical input into the
needs of their disabled children and the best approaches for ad-
dressing these needs? Should that trust be unfettered and the
input followed without question?

The U.S. Supreme Court concluded that IDEA does not ham-
string school officials in the exercise of discretion to maintain a
school environment that is safe and conducive to learning. In pre-
vious hearings we heard testimony from educators both reaffirming
and questioning this conclusion. Why are educators on both sides
of this issue?

IDEA was enacted 20 years ago because Congress and the courts
found that over one million children with disabilities were denied
any education by school officials. Fifty percent of our disabled chil-
dren were denied appropriate education, and 82 percent of children
with mental illness were denied appropriate services.

Congress also found that the arbitrary use of discipline by school
officials was the major strategy used to exclude, segregate and
deny services to disabled children.

Today, the number of exclusions is down considerably. Segrega-
tion is down, but still far too high, and many more children are re-
ceiving a free appropriate public education. However, implementa-
tion of IDEA is uneven. Too many parents are still forced to use
procedural safeguards available to them because of the failure of
school officials to provide a free appropriate public education.

Should these realities be taken into consideration in devising our
solutions?

In determining the appropriate placement for a disabled chil-
dren, school officials must take into consideration the education
and nonacademic benefits of a placement. When necessary, supple-
mentary aids and services are provided, and the teacher receives
necessary training.

School officials must also take into consideration the impact of
placement on the education of nondisabled students.

To what extent is the problem of disruptive disabled children in
reality the failure of school officials to provide teachers with the
necessary supports, tools and training to do their job?

Should a child with a disability who engages in inappropriate be-
havior be punished when the child's inappropriate behavior is re-
lated to the school district's failure to provide the basic floor of op-
portunity to which the child is entitled under the Equal Protection
Clause of the 14th Amendment of the U.S. Constitution.

When a disabled child receives an education conducive to learn-
ing, that is, special ed-related services and behavioral management
strategies specified in his or her lEP, from qualified, well-trained
teachers, how often, if ever, does a parent of a disabled child ques-
tion the authority and decisions made by school officials, including
decisions to change placements and use teaching strategies, includ-
ing suspensions, that teach their child responsibility and citizen-
ship? Why is it that there can be two schools in the same commu-
nity, serving exactly the same types of children, and one school will



have a zero suspension rate of disabled children, and the second
school will suspend 100 disabled children per year?

When a disabled child is removed from his or her current place-
ment because of dangerous or disruptive behavior, where is he
moved to? What is the likely impact on the child in the new envi-
ronment? What is the impact on other children in that environ-
ment?

One of the most common reasons disabled children drop out of
school is because of suspension or expulsion. According to a 1992
study conducted in the U.S. Department of Education, children
with mental illness who drop out of school have a postschool arrest
record of 73 percent, and the percentage for learning-disabled stu-
dents is 62 percent. Will the unintended effect of expelling disabled
children and ceasing services for them be increasing the crime rate
and creating new clients for the juvenile justice system?

I look forward to hearing from the witnesses.

Thank you, Mr. Chairman.

Senator Frist. The purpose of the first panel is to describe and
explain current Federal policy with regard to students with disabil-
ities who are a danger to themselves or others. In addition, the
panel will review for us a recent survey conducted by the National
Urban Reform Network on the extent to which students with dis-
abilities are represented in a population of students who pose a
danger to themselves or others in several large urban areas.

The first witness today is Nancy Jones of Washington. She is a
legislative attorney with the Congressional Research Service,
American Law Division. Joining her on this first panel is Dr. Carl
Cohn, superintendent of the Long Beach Unified School District
and a member of the National Urban Reform Network.

I appreciate both of you being here.

Ms. Jones?

STATEMENT OF A PANEL INCLUDING NANCY JONES, STAFF
ATTORNEY, AMERICAN LAW DP^ISION, CONGRESSIONAL RE-
SEARCH SERVICE, WASHINGTON, DC; AND CARL COHN, SU-
PERINTENDENT, LONG BEACH UNIFIED SCHOOL DISTRICT,
LONG BEACH, CA

Ms. Jones. Mr. Chairman, members of the subcommittee, I am
honored to be here this afternoon to discuss the current State of
the law regarding the Individuals with Disabilities Education Act
and the discipline of children with disabilities. I have submitted
prepared testimony for the record which I will now summarize.

Under current law, children with disabilities are not immune
from disciplinary procedures, but neither are those procedures
identical with those applicable to children without disabilities. In
order to understand these similarities and differences, it is impor-
tant to take just a few minutes to examine IDEA's background,
statutory language, administrative interpretation, and judicial in-
terpretation.

I should emphasize that the actual process by which disciplinary
procedures are applied is a mix of all of these — of statutory lan-
guage, administrative language and judicial interpretation.

IDEA was originally enacted in 1975 to provide grants to the
States for the education of children with disabilities. Its legislative



history indicates that one of the primary motives for its enactment
was the fact that children with disabilities, particularly children
who were emotionally disturbed, often failed to receive an edu-
cation.

In order to ensure that such children receive access to an edu-
cation, IDEA contains significant due process protections for chil-
dren with disabilities and their parents or guardians. As a result,
it is a mix of a grant statute and a civil rights statute.

It does not contain a specific section that relates to discipline,
but the due process protections do contain a "stay-put" provision
which is at the center of this current debate on discipline. The
"stay-put" provision requires that during the pendency of proceed-
ings conducted during a due process hearing or any due process
procedure, unless the State or local educational agency and parents
or guardians agree otherwise, the child will "stay put" in the cur-
rent educational placement.

The U.S. Supreme Court in a 1988 decision, Honig v. Doe, exam-
ined the statutory scheme and found that there was no exception
for dangerousness, but noted that the schools were not powerless
to deal with dangerous children. They found that Congress did not
leave school administrators powerless, but it did deny school offi-
cials their former right to — and I am quoting from the Court — "self-
help" and directed that in the future, the removal of children with
disabilities could be accomplished only with the permission of the
parents or, as a last resort, the courts.

Having said that as background, I would like to walk through
how the procedure actually works. The Department of Education
has published a chart which is in the back of my testimony, and
which they also kindly had blown up here for the members' use.
We are going to walk through that, and I think it will give you a
good idea of how this works in practice.

There are four different factual situations that can give rise to
different legal requirements. Under any of these situations, a
school may, without violating IDEA, immediately suspend a stu-
dent for up to 10 school days if he or she engages in behavior that
is subject to discipline. The school district then makes a determina-
tion as to whether the student's conduct is a manifestation of that
student's disability.

Now, in the first factual situation, you do not have firearms in-
volved, and the student's conduct is a manifestation of that stu-
dent's disability. In that situation, the school may initiate a change
in placement but may not expel or suspend the student for longer
than 10 days. If the parents or guardians disagree with the school's
decision, they can request a due process hearing. This is the left-
hand side of the chart, following along.

During this process, if the parents request a due process proceed-
ing, the child stays in the then current educational placement un-
less the school district goes to court to get an injunction to change
that placement.

The second factual situation is also on this chart, and it goes on


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Online Libraryzationofi1995Reauthorization of the IDEA : discipline issues : hearing before the Subcommittee on Disability Policy of the Committee on Labor and Human Resources, United States Senate, One Hundred Fourth Congress, first session on examining the effect of federal policy on the ability of school systems to discipl → online text (page 1 of 16)