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February 4, 1982


The opinion of the court was delivered by: Robert D. Morgan, Chief Judge.


Plaintiff asks judicial review of Administrative Order Number SE-123-80, issued June 30, 1981 in the name of the defendant Illinois State Board of Education and signed by defendant Donald M. Gill, as State Superintendent of Education. Copy of that order is attached to the complaint as Exhibit B, and copy of a previous decision by Impartial Hearing Officer Vasil Eftimoff, under date of January 20, 1981, which was reversed by the State order, is attached as Exhibit A. Jurisdiction here is founded on Title 20, United States Code, § 1415(e).

The federal statute (Education of All Handicapped Children Act, 20 U.S.C. § 1401ff.) states that the court "shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party,*fn1 and, basing its decision on the preponderance of the evidence, shall grant such relief as the court considers appropriate." [20 U.S.C. § 1415(e)(2)]

The essence of the dispute is the propriety of a 5-day suspension by plaintiff of 17-year-old, 11th grade high school student David Buckley on November 18, 1980, for "Gross misconduct. Verbal abuse of teacher." There is no serious dispute about the fact of an outburst of intolerable verbal abuse to the teacher on November 17, 1980, of the subsequent events, or of the fact that student Buckley had been previously receiving special educational services from plaintiff for several years, as a learning-disabled child. Following evaluations and staffings during the spring of 1980, it was determined that he be placed in the prevocational work study program and receive learning disabilities resource support for his main-streamed courses during the 1980/81 school term. One of the mainstream courses was Auto Mechanics, and it was in this class, in objecting to detention after class that day with others for disturbing the class, that the incident of verbal abuse took place.*fn2 The Impartial Hearing Officer decided that David had violated school policy, that his act was not "perpetrated by his handicap," that he assumed the blame, that his parents did not ask for an available review of the suspension, and that it should not be expunged from his record. The State order reversed the hearing officer's decision and directed that the suspension be withdrawn and expunged from his student records.*fn3

Plaintiff urges that this court reverse the latter decision and uphold that of the Impartial Hearing Officer.

The Buckleys, parents and child, through counsel, argue that plaintiff did not demonstrate that David's misconduct was unrelated to his handicap, that he could not be legally suspended, as there was no showing that he was dangerous, and that the plaintiff violated federal law "in attempting to expel David" without regard to his handicapped status.

The State Board and Superintendent also argue that a handicapped student must be dangerous to "terminate educational service" as a disciplinary measure, and that this court has no jurisdiction to disturb the State's Administrative Order, to the extent that it grants David Buckley "greater protection" under Illinois law than would be required under federal law.

In the view of this court, the evidence overwhelmingly preponderates in support of plaintiff's action, as found by the Impartial Hearing Officer. He consciously challenged the teacher's authority in an intolerable manner without any justification. There is nothing whatsoever in the evidence to suggest the contrary. The State Superintendent found as a fact that David "did verbally abuse the instructor"; and the evidence fully supports that conclusion. The State Superintendent otherwise simply recited a good deal of David's history, emphasizing a recently recognized need for "counseling," which he found had not been met in full, and he found as his final fact, without specification, that "David Buckley's rights have not been fully observed." The State Superintendent's pertinent conclusions (that "The hearing officer's decision is reversed," and that "The suspension shall be withdrawn and expunged from his student records.") rest entirely on the most general analysis of the relevant statutes and regulations and the State Superintendent's own view of what he concludes "the courts" have held in interpreting and applying the Act (20 U.S.C. § 1401ff.). He recognizes as sound the prior proceedings in this case, and undertakes to perform his assigned tasks in the premises under Section 2-3.38 of the School Code of Illinois and the Rules and Regulations to Govern the Administration and Operation of Special Education, as promulgated by defendant State Board. This extended verbal exercise is brought into focus on the instant case with the statements:

    "At the time of the incident no thorough
  evaluation of the child's needs for counseling had
  occurred; and it could not be determined whether
  this incident had anything to do with his
  handicapping condition. We must, therefore, like
  the courts, conclude that an assumption must be
  made that the long-term detrimental impact of the
  child's handicapping condition in some way
  affected the child's behavior and emotional
  outbursts which precipitated disciplinary action,
  like the courts, it is our opinion that an
  exceptional child cannot be excluded from special
  education as a result of such conduct. Further it
  is our conclusion consistent with our
  Rules, that the exceptional child can be
  suspended only when he constitutes a danger to
  himself, others, the school faculty or the school
  property. If the exceptional child is to otherwise
  be suspended even for a brief period, the school
  district must immediately assume that the
  placement was inadequately serving the child's
  needs * * *. (Administrative Order No. SE-123-80
  — Complaint Exhibit B, p. 5)

This sophistry, in relation to a 17-year-old "exceptional child" with "learning disabilities," who has made it at that age, with school help, through ten previous grades to a mainstream class in the 11th grade, when composed in the process of seeking to prohibit a 5-day suspension of that student for very shameful verbal abuse to a teacher, rests not on "the courts," but solely on the State Superintendent's own fallacious equating of a brief, temporary suspension, with expulsion or termination of special education.

It is vividly apparent that there was no expulsion from, or termination of, special education here, but rather a five-day disciplinary interruption for a flagrant offense, which was reasonably calculated to teach the "child," who obviously knew better, in an effort to avoid repetition and a consequent necessity for more drastic penalties.

There is absolutely no social or other value in assuming that the "child's" outburst in these circumstances was due to inadequate placement, i.e., the fault of someone other than the offending student. As observed by the Supreme Court of the United States in a landmark case involving school suspension, "Suspension is considered not only to be a necessary tool to maintain order but a valuable educational device." (Emphasis added.) Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 at p. 580 (1975). There can be no doubt whatsoever that, if there was any justification whatsoever for David being in the 11th grade on any terms, he knew better, and that he desperately needed to be brought up short for saying what he did to his teacher. Any theory that some harm of the brief interruption of classroom work could outweigh the educational value of the suspension here can only be recognized as pure imagination, or a feeble attempt at rationalization of a preconceived notion that handicapped students, whatever the degree of handicap, are free of classroom discipline. That is not the law. Surely David had a chance to be a better educated lad after this suspension than he was before. There is some indication that he is, since no repetition is shown. In any event, this court cannot be party to repudiating that sound educational experience. It should contribute to the good of David's future life.

Although the judicial discussion of many difficult problems in this area is of interest, few judicial decisions published to date have any significant bearing on this relatively simple case. None have been cited or found by the court. S-1 v. Turlington, 635 F.2d 342 (5th Cir. 1981), involved expulsion of handicapped students for the balance of a school year and the whole following year. It stands for the proposition that, while expulsion from school on valid determinations is a proper disciplinary tool with respect to handicapped students, a complete cessation of educational services is not. There was neither expulsion here, nor termination of educational services.

Helms v. McDaniel, 657 F.2d 800 (5th Cir. 1981), was an agreed test, through cross-motions for summary judgment, of the general procedures (local and state) in Georgia, in the light of the ...

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