Disciplining Students Under Gun-Free Act Requires Caution - Brief Article

School Administrator, May, 1996 by Robert L. Zorn

Two students bring guns to the same school on the same day. One student is in special education. The other is in a regular classroom.

Superintendent, Poland School District, Poland, Ohio

As the school district administrator, you must follow the new federal Gun-Free Schools Act, which requires expulsion of students bringing firearms on school property. Does this means both students will be expelled? No. Does it mean the two will receive discipline in a like manner? No.

Under the Gun-Free Schools Act, which was adopted in October 1995, special education students must be disciplined in accordance with laws applying to students with disabilities. That means the Individuals with Disabilities Education Act as it has been subsequently interpreted by the U.S. Supreme Court in Honig v. Doe, as well as Section 504 of the Rehabilitation Act and applicable state statutes.

Under IDEA and Honig, exclusion of a disabled student from school for more than 10 days constitutes a change in placement. Changes in placement require either an evaluation by the individual educational placement team and parent consent or a court order approving the exclusion based on the school's proof that the student's continued presence in the school is likely to result in injury to the student and/or others. Section 504 provides similar protection for students with disabilities.

Sundry Outcomes

So what becomes of the two students who brought guns to school?

After the due-process procedural safeguards, the student in a regular placement program is likely to receive expulsion for not less than one year.

In determining discipline for the special education pupil, the administrator has four options: (1) resort to in-school discipline, (2) suspend the student for 10 days or less, (3) place the student in an alternative setting for 10 days, or (4) convene the IEP team to decide whether the student's misconduct is a manifestation of the disability.

If the team determines the misconduct to be a manifestation of the student's disability, the district may not expel or suspend the student beyond 10 days. The district could initiate proceedings to review a change in placement, but if the parents seek an impartial hearing to challenge this change, the student must either remain in the current placement or the district IEP team could place the student in an interim alternative placement up to 45 calendar days while the dispute is resolved. The district also could seek a change in placement in an alternate setting other than the school to which the student brought the gun.

Few Alternatives

If the team determines the misconduct is not a manifestation of the student's disability, the district may, after due process, expel the student after providing written notice of its intentions a reasonable time before the expulsion. Under IDEA it is considered a change in placement. This written notice must state the misconduct was not a manifestation of the student's disability, the basis for that determination, and an explanation of applicable procedural safeguards, including the parents' right to initiate an impartial due-process hearing to challenge the determination and seek an administrative or judicial review of an adverse decision.

If the parents seek a hearing, the student must remain in current placement or an alternative interim placement not to exceed 45 calendar days if placed there by the IEP team until the challenge by the parent is complete.

The only alternatives to this lengthy procedure for special education students are for the school district to seek a court order to change the student's placement or for the parents to agree to another placement.