A Legal Analysis of Policy Initiatives to Exclude Handicapped/Disruptive Students from Special Education

Abstract

Embodied in the Education for All Handicapped Children Act (EHA) of 1975 are numerous Congressional goals and assumptions, the centerpiece being that all handicapped children, most historically excluded from school, were to receive a free appropriate education (and that no nonhandicapped children were to erroneously end up in a special education program). One major assumption was that a procedural due process provision would lead to more systematic legal pressure on school systems, put handicapped children on ân educational par with their nonhandicapped peers, lead to uniformity of treatment, and result in a general pattern of compliance with the law (Clune & Van Pelt, 1985, note 1). * While it is clear that the goal of eliminating the total exclusion from school of large numbers of handicapped children has been substantially met (General Accounting Office, 1981, note 2), available data rather dramatically indicate that the handicapped are not on an educational par with nonhandicapped peers, a profile of relatively uniform treatment is absent, and a pattern of general compliance with the EHA has not been achieved. The right to an appropriate education is apparently dependent upon place of residence (Blackman, 1989; Cline, 1988; Danielson & Bellamy, 1989, note 3) and what was once considered a handicapping condition eligible for special education at one point in time may be rendered ineligible at another point in time by a shift in policy in the same place of residence (Cheney, 1988, note 4). The history of the handicapped reveals that choice among styles of policy implementa tion in the states effects the services that are provided. The choice determines the type of service offered, who receives it, and on what terms (Neal & Kirp, 1985, note 5). Despite the prescriptiveness of the EHA and its implementing regulations, ambiguity in federal lan guage affords states considerable flexibility in choosing various paths to implementation. Consequently, states and school districts, lacking clear substantive direction and a strong commitment to the handicapped, can reach any preferred result while still following proper procedure. An appropriate education then becomes that education which results from following appropriate procedures (Clune & Van Pelt, p. 50, note 1). Variance in eligibility policies across states, enabled by a policy vacuum at the federal level, results in a broad band of disparity in servicesfor handicapped children across state lines and school district boundaries (Mendelson, 1989, note 6). Arguably, the most serious disparities exist in access to special education for seriously emotionally disturbed or behaviorally disordered students (SED/BD). There is reason to suspect that disparities in services and school outcomes will worsen as a consequence of a growing conservative movement among states to attenuate the criteria by which SED/BD students access the special education system (Cline, note 3; Cheney, note 4). The major thrust of the state policy revisionist movement is to exclude from eligibility acting out, aggressive students as an adjustment to the Supreme Court's ruling in the well known Honig v. Doe explusion case (infra, note 19) and the worsening supply of teachers of SED/BD students (Center, in press, note 7). The deplorable status of SED/BD students with regard to simple access to programs takes on new meaning when their treatment by the education system is viewed against the backdrop of case law, political history, and administrative intervention. This article is