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Introduction</h1> <p class="maintext"> We have come full circle. Pre-<em>PARC</em> [<em>Pennsylvania Assn. for Retarded Children v. Commonwealth</em>, 334 F.Supp. 1257 (ED Pa.1971) and 343 F.Supp. 279 (1972)] and <em>Mills [</em><em>Mills v. Board of Education of District of Columbia</em>, 348 F.Supp. 866 (D.C.1972)], schools routinely excluded children with disabilities because, among other reasons, they acted funny, they were disruptive, they harmed the other students. IDEA’s predecessor statute, the Education of the Handicapped Act, was passed in 1976 to end that exclusion, <em>Board of Education v. Rowley</em>, 458 U.S. 176, 179 (1982). The natural corollary of that policy was that schools could not precipitously throw a disabled student out of school without parental consent unless a hearing officer determines that a change in placement was necessary, <em>Honig v. Doe</em>, 484 U.S. 305, 324 (1988). This led to the development of the concept of manifestation determination, which was initially created by the United State Department of Education in 1994, 20 IDELR 625, 626 (1994), and codified in the IDEA in 1997. First came the hearing officers and courts and then came Congress in 2004 and the test for whether behavior was a manifestation of a child’s disability became more and more limited. Overlaid upon that process was the public frenzy for zero tolerance both in relation to drugs and later, post-Columbine, to weapons. And, school officials soon figured out that, if they called in the police and flung the child into the juvenile justice system, the school could end run many of the protections for children with disabilities. <br /> So, now, sadly, children with disabilities are routinely punished for their disabilities. Still, there now exists an elaborate superstructure of procedural and substantive rights for children with disabilities. Hearing officers and courts are asked to decide one case at a time, involving a particular child who has his or her own special needs and his or her own unique ways of responding to stimuli. It is our job to set up our cases to convince those decision-makers that it violates the civil rights of individual school children to punish them for actions over which they have little control. </p> <h1 class="maintext">B. Punishment, In General</h1> <p class="maintext"> <strong><em>1. Constitutional Limits</em></strong><br /> <br /> Not surprisingly, the Constitution of the United States is silent on the issue of discipline of school children. Nevertheless, the 5th Amendment does provide, in part, “nor shall any person ... be deprived of life, liberty, or property, without due process of law.” This protection was made applicable to the States by the first section of the 14th Amendment. Local school boards are undoubtedly engaging in what is known as state action, which makes them subject to the requirements of the 14th Amendment. Further, most courts hold that the right to an education is a fundamental property right, triggering the requirements of due process. Due process comes in two flavors. One is procedural which generally requires some form of notice and an opportunity to be heard before the state actor can deprive an individual of life, liberty or property. The severity of the sanction determines the amount of process due. The other is substantive which is based on the notion that there are certain matters, “involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, [that] are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” <em>Planned Parenthood v. Casey</em>, 505 U.S. 833, 851 (1992). As a practical matter, a violation of substantive due process rights occurs only when the conduct of the state actor “shocks the conscience.” <em>Rochin v. California</em>, 342 U.S. 165 (1952)<br /> <br /> What this means is that the federal constitution and particularly 42 U.S.C. §1983, the federal civil rights statute, can be used to challenge certain disciplinary actions taken by school districts. Students “do not 'shed their constitutional rights' at the schoolhouse door.” <em>Tinker v. Des Moines Independent Community School Dist</em>., 393 U.S. 503, 506 (1969). Courts require a meaningful hearing, for example, prior to an expulsion. In one case, an expulsion was overturned because the district did not allow the student to call the accusing teacher as a witness during the expulsion hearing. <em>Dillon v. Pulaski County Special School Dist.</em>, 594 F.2d 699 (8th Cir. 1979). Generally, where a district proposes to expel a student and there is no clear urgency in acting immediately, the district is obligated to provide the reasons for the proposed expulsion and a hearing following sufficient notice to permit the student to respond, where the student can refute the reasons for the expulsion and where the student can cross-examine those proposing expulsion. <em>Fiedler v. Board of Ed. Of School Dist. Of Winnebago in Thurston County</em>, 346 F. Supp. 722 (D. Neb. 1972); <em>Sweet v. Childs</em>, 507 F.2d 675 (5th Cir. 1975). However, due process does not require that the school disclose the identity of those bringing the accusations. <em>Wagner v. Fort Wayne Community Schools</em>, 255 F.Supp. 2d 915 (N.D. Ind. 2003). Even in the case of a suspension, “At the very minimum ... students facing suspension and the consequent interference with a protected property interest must be given some kind of notice and afforded some kind of hearing.” Goss v. Lopez, 419 U.S. 565, 579 (1975).<br /> <br /> One might think that the area in which federal due process protection would be most evident would be in the area of corporal punishment. Yet, in this area, the Supreme Court, in <em>Ingraham v. Wright</em>, 430 U.S. 651 (1977), took a hands off approach. The case involved Drew Junior High School in Dade County, Florida. One of the plaintiffs, James Ingraham, was struck more than twenty times with a wood paddle while being held over a table in the principal’s office. Ingraham suffered a severe hematoma that required medical care and forced him to miss school for several days. The Supreme Court rejected a challenge based on the Eighth Amendment’s prohibition on cruel and unusual punishment, finding that the Eighth Amendment was clearly aimed only at criminal proceedings. The Court also rejected the procedural due process claim saying, “In view of the low incidence of abuse, the openness of our schools, and the common-law safeguards that already exist, the risk of error that may result in violation of a schoolchild’s substantive rights can only be regarded as minimal.” 430 U.S. at 682. The Court failed to include any evidence of a low incidence. It is hard to see how getting beat in the principal’s office is an example of openness. And, state common law remedies are largely non-existent. </p> <p class="maintext"> Nevertheless, this decision has given the green light to all sorts of abuse of students, particularly in the South. For example, nine-year old Gloria Brown was struck seven times with a wood paddle for talking in class, resulting in serious bruises. The court said the action did not “shock the conscience”. <em>Brown v. Johnson</em>, 710 F.Supp. 183 (E.D. Ky. 1989). A teacher disciplined a student by sticking a pin in her arm. The court said it wasn’t as bad as the conduct in Ingraham. B<em>rooks v. School Board</em>, 569 F. Supp.1534 (E.D. Va. 1983). A fifth grade was struck five times with a wood paddle for humming in the boy’s bathroom, resulting in severe bruises and an impaired gait. The court said the action was not brutal enough for the student to prevail. <em>Archey v. Hyche</em>, 1991 WL 100586 (6th Cir. 1991).</p> <p class="maintext"> So, the same courts that have determined that the due process clause requires notice and a hearing prior to expulsion or even a suspension of up to ten days have held that the same due process clause does not stop school officials from brutalizing elementary school children. </p> <h2 class="maintext"> 2. Suspension/Expulsion</h2> <p class="maintext"> Before focusing on the punishment of children with disabilities, it is necessary to understand the punishment options available to school officials for all students. In that regard, note that Honig and the IDEA at 20 U.S.C. §1415(k) only provide protections for a change in placement lasting ten or more days. So, unless a student’s IEP limits the authority of the school administration, a student can be suspended for less than ten days, put in time out, isolated, given a detention, deprived of recess, made to do extra work, made to stand in the corner, and in states that permit corporal punishment, paddled, for behavior that is a direct result of his/her disability. The procedural protections in 20 U.S.C. § 1415(k) only apply to long term suspensions, expulsions, and school transfers. <br /> <br /> Each state has its own laws covering school suspensions and expulsions. A taxonomy of those statutes can be found at Skiba, R., Eaton, J., Sotoo, N., Factors Associated with State Rates of Out-of-School Suspension and Expulsion, Center for Evaluation and Education Policy, July 9, 2004 [ceep.indiana.edu/ChildrenLeftBehind/pdf/2b.pdf]. The study was stimulated by Department of Education data showing Indiana with the highest per capita rate of school expulsions. The authors found that three characteristics of state statutes were relevant to school suspension and expulsion rates: First, states that list criminal violation among the infraction justifying expulsion have higher rates of expulsion. Second, states permitting expulsion for off campus infractions have higher rates. And, third, states permitting corporal punishment have higher rates. The variables among state statutes looked at in the study included minimum length of expulsion, infractions defined as leading to expulsion, alternatives permitted by statute, due process rights afforded, and mandatory one year expulsion infractions. We will deal with zero tolerance and mandatory expulsion requirements later.<br /> <br /> Here, however, let’s review some of the other characteristics. As for infractions that can serve as grounds for expulsion, 39 states list firearms, 23 list physical assault or fighting, 22 list drugs, 19 list disruption of the educational process, 16 list gross or persistent misconduct, disruption, disorderly conduct or indolence, 12 list alcohol, and 12 list insubordination. In the bizarre category, 9 states authorize expulsion and 10 states authorize suspension for gross insubordination; the same numbers list profane language; 7 states authorize expulsion for membership in a fraternity, sorority or secret society, 5 states list terroristic threats, and 4 states authorize suspension or expulsion for truancy, which sounds very much like punishing the student with the very reward he/she seeks. <br /> <br /> Some 56% of the states permit alternative school as an alternative to expulsion while 34% did not permit any alternative. Remarkably, only 58% of the states mandated a meeting or hearing to review the proposed expulsion, only 40% stipulated that the parent had the right to attend, and only 36% required written notice of the expulsion to the parents. Only 8 states permitted cross-examination of witnesses and only 7 states permitted the student to produce his/her own witnesses. The point is that all students facing long-term suspension or expulsion are afforded some procedural rights under state law. For those of us trying to protect children with disabilities, we need to utilize those rights together with the IDEA-based rights. This tangle of procedures can be utilized to delay preemptive district action and create an opportunity to negotiate a resolution in the interest of the child.</p> <p class="maintext"> And, finally, the most important question: Does it ever make sense to expel a student from school? The student surely does not benefit from an expulsion. Most expelled students drop out, have little chance to have a successful career, cannot make enough money legally to support themselves. Getting away from school may be exactly what the student is communicating through behavior. Some turn to crime or drugs. They become burdens to society for the rest of their lives. So, not only do they lose but we taxpayers and citizens lose as well. Many states require alternative education for expelled students age 15 and below and for expelled special education students. There is, however, no good data that demonstrates that these schools do any good. There is no evidence that the students are taught the skills to survive in regular school and there is no evidence that any significant number return to regular school to graduate. Clearly, expelled students are one of the most at-risk populations in society. A policy of throwing them out and forgetting them is a policy that we will all pay for years to come.</p> <h2 class="maintext"> 3. Arresting Students </h2> <p class="maintext"> Data is hard to come by, yet the trend is obvious: schools are calling the police more frequently to arrest students for in-school conduct. Part of this trend is due to the sharply increased presence of police officers in schools as security officers. Part is due to society’s zero tolerance obsession. And, part, no doubt, is due to administrators figuring that an arrest circumvents the special education manifestation determination process. This trend has been documented in a flurry of newspaper articles. See, In School, Bad Behavior Is Shown The Door by Jane Gordon, New York Times, November 16, 2003. Gordon reports, “In Newington [Connecticut], for example, the high school began a policy about five years ago to not only automatically suspend students caught fighting at the high school, but also have them arrested and charged with breach of peace.” The Advancement Project published Education on Lockdown: The Schoolhouse to Jailhouse Track in March 2005 [<a class="maintext" href="http://www.advancementproject.org//reports/FINALEOLrep.pdf" target="_blank">http://www.advancementproject.org//reports/FINALEOLrep.pdf</a>], concluding “School districts have teamed up with law enforcement to create this ‘schoolhouse to jailhouse track’ by imposing a ‘double dose’ of punishment – suspensions or expulsions and a trip to the juvenile court – for one act of childish misconduct.”</p> <p class="maintext"> The effect of such a policy on students is profound. Fighting, defiance, and various forms of acting out have been criminalized. Children forced into the juvenile justice process see their education disrupted and, frequently, ended. Their chance to become productive members of society is aborted. They learn that the juvenile justice system is an endless morass where denials and tricks are the best way to beat the system. They learn that no one believes them, effectively ending any value to truth. The underlying cause of their maladaptive behavior is not addressed.</p> <p class="maintext"> One thing else they learn: the most prosecuted crime in America is the failure to be white. In 1975, the Children’s Defense Fund found that national suspension rates for Black students were two to three time higher than for Whites. In 2000, African Americans were 17% of public school enrollment but accounted for 34% of the suspensions. There is a lack of data of school made referrals to the juvenile justice system. Nevertheless, in 2002, black youths made up 16% of the juvenile population but accounted for 43% of the juvenile arrests. The data show further that Black and Latino students receive harsher punishments than do their white colleagues for the same behavior. </p> <p class="maintext"><br /> </p> <h2 class="maintext"> 4. Weapons/Drugs </h2> <p class="maintext"> As a general rule, there is little in the federal statutes that directly effects discipline in schools. Two exceptions have sprung up of late. In 2002, the President signed the Safe and Drug-Free Schools and Communities Act, 20 U.S.C. §7101 et. seq., a grant program to States, to “foster a safe and drug-free learning environment that supports student academic achievement.” The law specifically authorized the establishment of mentoring programs. Under these statutes, some districts have implemented programs of drug testing of students who participate in extracurricular activities. In <em>Board of Education v. Earls</em>, 536 U.S. 822 (2002), the Supreme Court held, in a 5-4 decision, that a policy requiring all students who participated in competitive extracurricular activities to submit to drug testing was a reasonable means of furthering the school district's important interest in preventing and deterring drug use among its schoolchildren, and therefore did not violate Fourth Amendment. This was an expansion of the 1995 Supreme Court decision in Vernonia School District v. Acton, 515 U.S. 646 (1995), which upheld required random urinalysis of school students who participated in interscholastic athletics. </p> <p class="maintext"> Related, in 1984, Congress passed the Drug-Free School Zones Act, 21 U.S.C. §860, which increased penalties for selling illegal drugs within 1000 feet of a school. While a similar ban on the possession of a firearm within 1000 feet of a school was invalidated by the Supreme Court as beyond Congress’ power, <em>United States v. Lopez</em>, 514 U.S. 549 (1995), the Drug-Free School Zones Act has been routinely found to be within Congress’ power to regulate commerce. <em>U.S. v. Hawkins</em>, 104 F. 3d 437 (C.A.D.C. 1997)(J. Ginsburg).</p> <p class="maintext"> Clearly, drugs and weapons play a special role in school discipline issues. The zero tolerance rules have been inflated to enormous proportions. Using Connecticut law as an example, mandatory expulsion is the rule where a student has on school grounds or at a school sponsored event a firearm, a deadly weapon, a dangerous instrument or a martial arts weapon. A firearm is defined, in the federal criminal code, as, “(A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm.” So, the definition is quite broad. The term “destructive devise” is further defined to include, any explosive, incendiary, or poison gas bomb, grenade, rocket having a propellant charge of more than four ounces, missile having an explosive or incendiary charge of more than one-quarter ounce, mine. The term “antique firearm” means a firearm manufactured before 1898. So, a child must be expelled for bring a starter gun, a shotgun, or a land mine to the school prom.</p> <p class="maintext"> The term “deadly weapon” includes a switchblade knife, gravity knife, billy, blackjack, bludgeon, or metal knuckles. The term “dangerous instrument” includes any instrument, article or substance which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury, including a car and an attack dog. The term “martial arts weapon” means a nunchaku, kama, kasari-fundo, octagon sai, tonfa or chinese star.</p> <p class="maintext"> The expulsion statute also makes expulsion mandatory for the sale or distribution of a controlled substance on or off school grounds. A controlled substance is defined as, “a substance which has been found to have a stimulant, depressant or hallucinogenic effect upon the higher functions of the central nervous system and having a tendency to promote abuse or physiological or psychological dependence or both. Such substances are classifiable as amphetamine-type, barbiturate-type, cannabis-type, cocaine-type, hallucinogenic, morphine-type and other stimulant and depressant substances, and specifically exclude alcohol, caffeine and nicotine.” So, sale of Ritalin or Oxycontin is covered, as is the sale of marijuana or cocaine. </p> <h2 class="maintext"> 5. Sexual Harassment; Bullying</h2> <p> <span class="maintext"> Student-to-student sexual harassment and bullying have not become a matter of mandatory discipline in the way that possession of drugs or weapons has. In<em> Davis v. Monroe County</em>, 526 U.S. 629 (1999), the Supreme Court did find a limited cause of action under Title IX against a school district for failure to stop student-to-student sexual harassment. Further, in recent years, again in reaction to Columbine, a number of states have adopted anti-bullying laws. Most of these laws do not establish a private cause of action but rather require school districts to implement policies to investigate complaints of bullying.</span></p> <p class="maintext"> These are, frankly, two areas which cut both ways for children with disabilities. Sexual harassment can often be the result of an inability to read social cues for a student on the autism spectrum or an impulsive act by a student with attention deficit disorder. Students with disabilities are both bullied for their differences and bullies as a result of their emotional disturbances or inabilities to redirect anger or frustration. </p> <p class="maintext"> The point is that anyone concerned with the rights of students with disabilities should oppose mandatory sanctions in schools in whatever costume they appear.</p> <h2 class="maintext"> 6. Zero Tolerance </h2> <p class="maintext"> In February 2001, the ABA Criminal Justice Section adopted a policy statement [<a class="maintext" href="http://www.abanet.org/crimjust/juvjus/zerotolreport.html" target="_blank">www.abanet.org/crimjust/juvjus/zerotolreport.html</a>] stating, “Public policy towards children has moved towards treating them more like adults and in ways that mimic the adult criminal justice system. The most recent version of this movement is so-called ‘zero tolerance’ in schools, where theories of punishment that were once directed to adult criminals are now applied to first graders.” </p> <p class="maintext"> Further, “Zero tolerance is theoretically directed at students who misbehave intentionally, yet it also applies to those who misbehave as a result of emotional problems, or other disabilities, or who merely forget what is in their pocket after legitimate non-school activities.” “Unfortunately, when it is examined closely, zero tolerance turns out to have very little to do with zero tolerance and everything to do with one-size-fits-all mandatory punishment.” “Zero tolerance as practices today is not rooted in theories of pedagogy or child or adolescent development. It teaches children nothing about fairness, and often creates injustice.” The report concludes, “It is easy to imagine school discipline policies that are grounded in common sense, and that are sensitive to student safety and the educational needs of all students. Such policies are the kind that most parents would want if their own children were being disciplines. Unfortunately, most current policies eliminate the common sense that comes with discretion and, at great cost to society and to children and families, do little to improve school safety.”</p> <p class="maintext"> The Committee on School Health of the American Academy of Pediatrics issued a report on Out-of-School Suspension and Expulsion in 2003 [<a href="http://www.pediatrics.org/cgi/content/full/112/5/1206" target="_blank" class="maintext">http://www.pediatrics.org/cgi/content/full/112/5/1206</a>]. The pediatricians reported that children who are suspended are the ones least likely to have supervision at home. Children with single parents are between 2 and 4 times as likely to be suspended or expelled as children from two parent homes. Further, “children who use illicit substances, commit crimes, disobey rules, and threaten violence often are victims of abuse, are depressed, or are mentally ill. As such, children most likely to be suspended or expelled are those most in need of adult supervision and professional help.” Among the panel’s recommendations are, “3. As part of the school’s or district’s written policy on disciplinary action, schools should routinely refer a student to his or her primary health care professional for an assessment if there is a disciplinary action or a student is at risk of such action.” “5. Out-of-school placement for suspension or expulsion should be limited to the most egregious circumstances.” “9. A full assessment for social, medical, and mental health problems by a pediatrician is recommended for all school-referred students who have been suspended or expelled.”<br /> </p> <p class="maintext"> Both of these reports came in the wake of two devastating reports on zero tolerance. One, by Russell Skiba of the Indiana Educational Policy Center, entitled Zero Tolerance, Zero Evidence [<a class="maintext" href="http://www.indiana.edu/~safeschl/ztze.pdf" target="_blank">http://www.indiana.edu/~safeschl/ztze.pdf</a>] contains the obligatory horror stories as well as references to scholarly literature and data analysis to conclude that zero tolerance does not work. “Unfortunately, there appears to be little evidence, direct or indirect, supporting the effectiveness of suspension or expulsion for improving student behavior or contributing to overall school safety.” The other report, which runs some 125 pages, is entitled Opportunities Suspended: The Devastating Consequences of Zero Tolerance and School Discipline Policies [<a class="maintext" href="http://www.eric.ed.gov/ERICWebPortal/contentdelivery/servlet/ERICServlet?accno=ED454314" target="_blank">http://www.eric.ed.gov/ERICWebPortal/contentdelivery/servlet/ERICServlet?accno=ED454314</a>]. The abstract states, “This report contends that public school administrators no longer rely on literal interpretations of states’ and district’s zero tolerance policies and overzealously promote safety, inventing creative interpretations of laws and using them to suspend or expel children based on relatively minor offenses. Minority students are disproportionately disciplined.” The study authors, from the Harvard Civil Rights Project, criticized zero tolerance for depriving children of educational opportunities, for providing alternative education that is often “no more than holding pens for children considered to be troublemakers,” for inappropriately criminalizing children, and for violating the rights of students by referring them to the juvenile justice system for non-violent acts. </p> <p class="maintext"> The bottom line is that school disciplinary systems are intellectually bankrupt, maliciously and racistly applied, and of no value to the school, students, or the misbehaving student. </p> <h1 class="maintext">C. Impact of Disability</h1> <h2 class="maintext"> 1. <em>Honig v. Doe</em></h2> <p class="maintext"><strong> </strong>How to respond to inappropriate behavior by children with disabilities has been a question that Congress has returned to on a number of occasions. The original Education of All Handicapped Children Act (EAHA), passed in 1975, did not contain the elaborate manifestation determination proceeding that the law now contains. Indeed, one might even say that the EAHA was silent on the issue. Yet, in <em>Honig v. Doe</em>, 484 U.S. 305 (1988), the Supreme Court explicitly found that the stay-put provision of the statute was there to prevent school administrators from excluding disabled children from the classroom. The stay-put provision provides that a disabled child remains in his or her last agreed upon placement during the pendency of any due process hearing or court appeal from a proposed change in placement. The United States Department of Education had, in 1980, determined by regulation that a suspension of more than ten days in length constituted a change in placement, consistent with Goss. </p> <p class="maintext"><strong> </strong>It is worth reviewing what Justice Brennan wrote in Honig. The Court noted that the stay-put language contained no exceptions. California argued that Congress clearly meant to include an exception for a dangerous student. Not so, said the Court, “We think it clear, however, that Congress very much meant to strip schools of the unilateral authority they had traditionally employed to exclude disabled students, particularly emotionally disturbed students, from school. In so doing, Congress did not leave school administrators powerless to deal with dangerous students; it did, however, deny school officials their former right to ‘self-help,’ and directed that in the future the removal of disabled students could be accomplished only with the permission of the parents or, as a last resort, the courts.</p> <p class="maintext">“In drafting the law, Congress found that school systems across the country had excluded one out of every eight disabled children from classes. </p> <p class="maintext">“Congress attacked such exclusionary practices in a variety of ways. It required participating States to educate all disabled children, regardless of the severity of their disabilities, 20 U.S.C. § 1412(2)(C), and included within the definition of ‘handicapped’ those children with serious emotional disturbances. § 1401(1). It further provided for meaningful parental participation in all aspects of a child's educational placement, and barred schools, through the stay-put provision, from changing that placement over the parent's objection until all review proceedings were completed. Recognizing that those proceedings might prove long and tedious, the Act's drafters did not intend § 1415(e)(3) to operate inflexibly … and they therefore allowed for interim placements where parents and school officials are able to agree on one. Conspicuously absent from § 1415(e)(3), however, is any emergency exception for dangerous students.” </p> <p class="maintext"><strong> </strong>The Court said that, while school administrators could not unilaterally expel disabled students, they could use other procedures including study carrels, timeouts, detention, the restriction of privileges, or even suspension for up to ten days. </p> <p class="maintext"><strong> </strong><em>Honig v. Doe</em> involved two emotionally disturbed school children in the San Francisco Unified School District. Seventeen year old John Doe assaulted another student at a developmental center for disabled children. “Frustrating situations, however, were an unfortunately prominent feature of Doe’s school career: physical abnormalities, speech difficulties, and poor grooming habits had made him the target of teasing and ridicule as early as first grade. … [H]e could tolerate only minor frustration before exploding.” Jack Smith was unable to control his verbal and physical outbursts. “He experienced academic and social difficulties as a result of extreme hyperactivity and low self-esteem.” His disruptive behavior included stealing, extorting money from fellow students, and making sexual comments to female classmates. He was expelled for making lewd comments after being warned that, if he did so, he would be expelled.</p> <h2 class="maintext"> 2. 1997/2004 IDEA Changes</h2> <p class="maintext"><strong> </strong>So, what <em>Honig </em>held was that a school system could not expel or otherwise change the placement of a disabled student without parental agreement or a court order. This rule was codified in the 1997 amendments (P.L. 105-17) to the Individuals with Disabilities Education Act (IDEA), the successor to the Education of All Handicapped Act. The 1997 codification included the establishment of a manifestation determination process. In simple terms, if a disabled child was to suffer a change in placement, including long-term suspension or expulsion, as a consequence for misbehavior, the child’s IEP team would need to meet to determine whether the behavior was a manifestation of the child’s disability. The 1997 scheme created a presumption that the behavior was a result of the disability. Under the 1997 Act, if any of three factors – appropriateness of placement and program, understanding of consequences of behavior, and ability to control behavior – was not clear, the behavior was presumed to be a manifestation of the child’s disability and any change in program could only be made through the PPT process.</p> <p class="maintext"><strong> </strong>In the 2004 amendments (P.L. 108-446), Congress substantially tightened the manifestation determination law. The report of the conference committee stated, “The Conferees intend to assure that the manifestation determination is done carefully and thoroughly with consideration of any rare or extraordinary circumstances presented. Additionally, it is the intention of the Conferees that when a student has violated a code of conduct school personnel may consider any unique circumstances on a case-by-case basis to determine to whether a change of placement for discipline purposes is appropriate. The Conferees intend that if a change in placement is proposed, the manifestation determination will analyze the child's behavior as demonstrated across settings and across time when determining whether the conduct in question is a direct result of the disability. The Conferees intend that in situations where the local educational agency, the parent and the relevant members of the IEP team determine that the conduct was the direct result of the child's disability, a child with a disability should not be subject to discipline in the same manner as a non-disabled child.</p> <p class="maintext"><strong> </strong>“The Conferees intend that in order to determine that the conduct in question was a manifestation of the child's disability, the local educational agency, the parent and the relevant members of the IEP team must determine the conduct in question be the direct result of the child's disability. It is intention of the Conferees that the conduct in question was caused by, or has a direct and substantial relationship to, the child's disability, and is not an attenuated association, such as low self-esteem, to the child's disability.” House Conference Report No. 108-779 at pp. 224-225. Note that while the legal standard was tightened to concepts like “caused by” and “direct and substantial relationship”, the new standard really just codifies what courts and hearing officers have been applying for a while. At the same time, note how far removed this standard is from the policy articulated by Justice Brennan in <u>Honig</u>.</p> <h2 class="maintext"> 3. Current MD Procedures</h2> <p align="left" class="maintext"><strong> </strong>This seminar is not intended to wade into the procedural swamp which is 20 U.S.C. §1415(k). The law is prolix and internally contradictory. School officials and some parent advocates have cried out for clarity. Clarity is, from our side of the table, a mistake. Congress pretty clearly intended to create a kangaroo court to permit school administrators to get rid of disruptive students. Transparent procedures will permit them to accomplish that goal more readily. We need to utilize the procedural mess for the advantage of our clients. By bollixing up the process, we can force school boards to shed their belief that procedural regularity makes up for substantive irrationality. In the case of discipline, it really comes down to dealing with each child as an individual.<br /> </p> <p align="left" class="maintext"><strong> </strong>In terms of practice, experts are essential. A parent will be unable to demonstrate that behavior was a manifestation of a disability without having a professional with lots of letters after his or her name explaining at the IEP Team meeting and testifying at the due process hearing that the specific behavior was a manifestation of the individual child’s specific disability. There is no way around this. Do not mislead your clients into thinking they can win a manifestation determination decision on the cheap.</p> <h2 class="maintext"> 4. The Concept of Manifestation</h2> <p class="maintext"><strong> </strong>It is worth assessing the very concept of manifestation. The underlying idea is that nobody should be punished for something over which he or she has no control. This precept, however, is not entirely compatible with reality. Most human behavior is some proportion involuntary and some proportion volitional. [This false dichotomy between disability and volition pops up in the definition of Emotional Disturbance. In 34 CFR § 300.8(c)(4)(ii), social maladjustment is excluded from the definition of emotional disturbance.] Taking the most extreme case – breathing – we can hold our breath for some period of time and not breathe. The longer we hold our breath, the more effects we suffer: effects such as redness in the face, dizziness, loss of balance, etc. <br /> </p> <p class="maintext"><strong> </strong>For a child with a disability, the same mix of involuntary and voluntary applies. Consider the child with cerebral palsy who walks with Lofstrand crutches. She can walk across the room without crutches. But, if she does so, she becomes exhausted and is unable to focus on a cognitive task for perhaps a half hour afterwards. Or, think about the bipolar child. She can control her explosive reaction to being told no through concentration. Doing so, however, means that the slightest thing is likely to set her off in the future. Or, consider the bright, bored ADHD boy. He can, through great effort, focus on and complete a school task. He can only do so in limited spurts. And afterwards, his impulsivity rockets out of control. Or, think about the autistic child who flaps his hands and utters bizarre sounds. If you are in his face and constantly reminding him, he can control these behaviors. In each case, is the behavior – walking with crutches, exploding, acting impulsively, hand flapping – a manifestation of the child’s disability? Certainly, using the 1997 language the child's disability impaired the ability of the child to control the behavior. But, under the 2004 language, was the conduct in question caused by or had a direct and substantial relationship to the child's disability? </p> <p class="maintext"> <strong> </strong>Of course, pointing out the lack of intellectual soundness to the manifestation test is far easier than dealing with the basic problem. Let’s assume that we all agree that selling marijuana in school should not be allowed. The way we express that policy is by establishing a rule and then enforcing that rule with serious consequences. The purpose of the rule is to keep drugs out of school. The purpose is not to make the pot dealer a better person or to teach him the importance of following rules or to help him control his impulsivity. Yet, the consequences run only to that student. His classmates may or may not know if he was expelled or why. And expulsion may or may not upset the student. Perhaps he was one of those bored ADHD kids who would like to be anywhere in the world except in a rigid school environment. Depending on his condition, he may not even understand the linkage between his marijuana sales and his expulsion. The far better solution – and one that is totally impractical – is to deal with the student’s transgression as an educational opportunity. In other words, education professionals would look at who the student is and why he acted the way he did. The school would then work with him to provide him with the skills to control his behavior in the future. For some kids, the appropriate sanction for selling marijuana in school may be expulsion or placement in a behavioral growth school. For other, the appropriate response might be to design an effective behavior plan.</p> <h2 class="maintext"> 5. Relationship of Juvenile Justice to Special Education </h2> <p class="maintext"><strong> </strong>Children with disabilities get involved with the criminal justice system with a greater frequency than do typical children. Particularly, children diagnosed with bipolar disorder, attention deficit disorder, pervasive developmental disorder, and various emotional disturbances are susceptible to behaviors that can lead to arrest and prosecution. Moreover, with increasing frequency, rather than go through a comprehensive functional behavioral analysis and design a behavior intervention plan to address these behaviors, schools are calling the police into the school to arrest students with disabilities.<br /> </p> <p class="maintext"><strong> </strong>The American special education system and the American juvenile justice system have similar goals: both are aimed at molding children and adolescents to be productive, contributing members of society. Both rely on much the same information: evaluations from educational and mental health professionals. Each system has a variety of resources at its disposal to help achieve its goal. Yet, despite these similarities, each system operates independently of the other. At the least, this results in a waste of scarce resources. More frequently, however, the differing approaches lead to the two systems operating at cross-purposes. The child is the loser.</p> <p class="maintext"><strong> </strong> The disconnect is clear in the court decision in <em>Joseph M. v. Southeast Delco</em>, 2001 WL 283154 (E.D. Pa. 2001). Joseph had a significant history of aggressive behavior towards peers and was particularly prone to starting fires. He was determined to be emotionally disturbed. One spring day Joseph started a small fire in the school cafeteria. The school called the cops and Joseph was incarcerated at the Cornell Apraxas Youth Center as a result. The family brought due process. The hearing officer determined he lacked jurisdiction to change Joseph’s placement because Joseph was in a juvenile detention center. The state appeals panel similarly felt powerless but did articulate deep concerns about the defects in Joseph’s IEP. The family went to federal court. <br /> </p> <p class="maintext"><strong> </strong>In federal court the parents argued that the school changed Joseph’s placement without an IEP meeting in violation of the IDEA. Indeed, a federal court in Tennessee, had ruled that such an action was a violation of the IDEA in <em>Morgan v. Chris L.</em>, 927 F.Supp. 267 (E.D. Tenn. 1994), <em>aff’d</em>, 106 F.3d 401 (6th Cir. 1997), <em>cert. denied</em>, 520 U.S. 1271. But then, in the 1997 reauthorization, Congress added 20 U.S.C. § 1415(k)(9) which reads, “Nothing in this subchapter shall be construed to prohibit an agency from reporting a crime committed by a child with a disability to appropriate authorities or to prevent State law enforcement and judicial authorities from exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with a disability.” In the 2004 reauthorization, this provision was moved to 20 U.S.C. § 1415(k)(6), without substantive change. The <em>Joseph M.</em> court said that Congress overruled <em>Morgan</em> and that the statute “clearly places no requirement on schools to conduct a manifestation determination review before notifying the authorities where a disabled child commits a crime.” <br /> </p> <p class="maintext"><strong> </strong>Prior to the fire setting incident, the school had determined that Joseph needed a special residential placement. Through neglect, the district had failed to file this determination with the State which had responsibility for locating the placement. The court held that the school district was liable to the parents for damages for the two months between the determination of the need for a residential placement and the fire incident. Note, in the <em>Joseph M.</em> case, there was no question that Joseph’s pyromania was a manifestation of his disability. By invoking the Pennsylvania law enforcement and criminal justice system, the school district effectively changed Joseph’s placement (to a placement that was clearly inappropriate to meet his psychological needs) without ever resorting to the manifestation determination process. Joseph was effectively expelled for his disability, precisely the result the Supreme Court in <em>Honig</em> sought to prevent.<br /> </p> <p class="maintext"><strong> </strong>The <em>Joseph M.</em> decision cited to a case that I litigated, <em>State v. David F.</em>, 1998 WL 828117 (Conn.Super.Ct. 1998). In that case, David F. was a severely disabled, non-verbal child who communicated through his behavior. When confronted by a teacher he found odious, he reacted by striking her. The town and/or the teacher decided to press charges. We moved to dismiss because the IDEA procedures preempted state law. Judge Harleston ruled that the juvenile court had jurisdiction but that the prosecution did not, in any way, undermine the IDEA. She said, “It is submitted that the juvenile court's jurisdiction will not frustrate the IDEA or its ‘stay put’ provisions. The school's responsibility under the IDEA, to provide disabled children with an appropriate education, does not end when a child enters the juvenile system. Both case law and statutes support the propositions that the IDEA continues to work even when a child is involved in juvenile court proceedings.” By the way, the charges were promptly dismissed due to David’s lack of capacity to commit the crime. </p> <h2 class="maintext"> 6. FBA/BIP Requirements</h2> <p class="maintext"> A functional behavioral assessment (FBA) is a professional tool used to tease out the function of an individual’s repeated, inappropriate behavior. Creating an FBA is an iterative process, involving careful documentation of each incident of the identified behavior, looking at the antecedents, both environmental and discrete stimulus, and analyzing the consequences to see what is effective at controlling the behavior. Incidentally, there is nothing that says only negative consequences can be used. An FBA is clearly not the slapdash checklist used by many school districts. </p> <p class="maintext"> Once the first draft of the FBA is completed, the IEP team should determine a behavioral intervention plan (BIP). Such a plan does not follow automatically from the FBA. Many types of behavior can be extinguished in a number of different ways. One way is to change the environment. Another way is to change the demands on the student. Another way is to apply sufficiently meaningful negative consequences so that the student learns that the cost of the behavior is higher than its benefit. Alternatively, a positive consequence often more effectively ends the behavior, such as giving a bottle to a crying child. Which route to take is a team decision. Incidentally, there are some maladaptive behaviors that, once learning their function, we may not want to extinguish. For example, there is a fair amount of scholarly literature published demonstrating that part of autism has to do with a movement disorder. Hand flapping may well be what a child with autism needs to get himself or herself centered enough to focus on other demands. <br /> </p> <p class="maintext"> Once a BIP is established, it is critical to continue to refine the FBA based on the child’s reaction to the plan. Perhaps a consequence extinguishes inappropriate behavior A but results in a substantial increase in inappropriate behavior B. Or, perhaps a consequence serves to extinguish an inappropriate behavior. The team needs to determine whether the consequence can then be faded. If the environment promotes an inappropriate behavior and environmental modification extinguishes the behavior, the team needs to determine whether pieces of the old environment should be reintroduced in a way that inoculates the child against the behavioral reaction. <br /> </p> <p class="maintext"> The FBA and the BIP should be part of the child’s IEP if the child has behavioral goals. It is a critical part of the child’s plan and should be implemented with the rigor that the IDEA provides. Moreover, the behavior plan should specifically rule out consequences which are ineffective or counterproductive. For example, the behavior plan for a child with sensory hypersensitivity should preclude the use of any physical contact as a consequence for inappropriate behavior.<br /> </p> <p class="maintext"> All of the foregoing in this section is really best practice. The statute does not directly address these issues. Sections 1415 (k)(1)(D)(ii) and 1415 (k)(1)(F) do raise these issues by implication. Section (k)(1)(D)(ii) provides that a special education child who is removed from his or her current placement for behavioral reasons shall “receive, as appropriate, a functional behavioral assessment, behavioral intervention services and modifications, that are designed to address the behavior violation so that it does not recur.” Section (k)(1)(F) requires an FBA and BIP if the behavior is determined to be a manifestation of the child’s disability. So, an FBA and BIP are clearly mandated after the behavior occurs. To the extent that the behavior is foreseeable, usually due to prior similar actions, the FBA and BIP should be created long before the incident in the hope that the incident leading to a change in placement will never occur.</p> <h2 class="maintext"> 7. Case Law on MD</h2> <p> <span class="maintext"> The case law on manifestation determination is a muddled mess. There are no readily discernable patterns of when behavior is considered to be a manifestation of a disability. Even before the change in the presumption in 2004, hearing officers and judges insisted that the parents prove that the behavior was a manifestation of the child’s disability. In light of the expedited time frame of manifestation determination hearings, parents are often unable to secure the clear expert testimony necessary to win these cases. If forced to pronounce one rule generally true, it is that drug dealing is almost never considered a manifestation of Attention Deficit Disorder.</span></p> <p><span class="maintext"> We will start with a pre-1997 case, <em>Doe v. Oak Park</em>, 115 F.3d 1273 (7th Cir. 1997) in which the Seventh Circuit joined the Ninth Circuit and the Fourth Circuit in holding that if the behavior was not caused by the disability, the special education student was to be treated like any other student. Hence, if the state did not provide an alternative education program to expelled regular education students, it was under no obligation to provide such services to a special education student. And, in a colossal example of pulling itself up by its own bootstraps, the court held that, if the behavior was not caused by the disability, stay-put did not apply. As to this issue, Congress stepped in with the 1997 reauthorization which provided, “A free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21 inclusive, including children with disabilities who have been suspended or expelled from school.”<br /> </span></p> <p><span class="maintext"> The facts are of interest. John Doe was a special education student with learning disabilities. He brought marijuana and a pipe to a school dance. The parents asked the school to evaluate him for ADHD prior to determining whether his behavior was related to his disability. The school psychologist agreed with their request. The manifestation determination committee determined that, since John was already designated as eligible for special education due to his learning disability, there was no reason to consider his possible ADHD. Shockingly, the Fifth Circuit had no problem with that determination. The court said that, while the argument that John’s misbehavior related to an undiagnosed ADHD disability “has some appeal, … it is unnecessary to address it directly because … the ‘stay-put’ provision of the IDEA is not implicated in a case like this, where the school district has made a reasoned determination following the procedures of the IDEA that a student’s misbehavior is unrelated to his disability.” The court was not troubled by the rank circularity of this argument.<br /> </span></p> <p><span class="maintext"> In <em>Randy M. v. Texas City</em>, 93 F.Supp.2d 1310 (S.D. Texas 2000), the court faced a student’s challenge to his placement in an Alternative Education Program. Thirteen-year old Randy had learning disabilities and serious behavioral problems. One day, acting with another student, he ripped the break-away wind pants off a female student, thereby exposing her underwear. The court entered into no analysis of the relationship between Randy’s disability and this behavior. Rather, the court preached that “A planned and intentional assault of a fellow student, particularly an assault with sexual overtones, is a very serious infraction. The District was wholly justified in taking stern and aggressive remedial action when faced with such conduct.” The court seems to be saying that if the misconduct is egregious enough, manifestation does not matter. <br /> </span></p> <p><span class="maintext"> The Maine federal court relied on the <em>Doe</em> court’s analysis of manifestation in <em>Farrin v. Maine</em>, 165 F.Supp.2d 37 (D.Maine 2001). Here, Jacob, who had a learning disability and documented impulsivity and behavioral problems, sold and distributed marijuana to his eighth grade classmates. As to the substance of the manifestation determination, the court said there was no reason to determine whether the student was impulsive, saying, “There is no need for the Court to determine whether Jacob’s alleged new disability actually existed, because Plaintiffs have failed to demonstrate by a preponderance of the evidence that an ‘impulsivity’ problem such as the one they describe would manifest itself in a decision to sell marijuana. … In particular, Defendant showed that Jacob understood school rules and that his actions involving marijuana took place over several hours, involving not a single decision, but many individual ones. These facts are completely antithetical to Plaintiff’s impulsivity theory.” Ordinarily, it takes expert opinion to demonstrate the relationship between a disability and specific conduct. Interestingly, the <em>Farrin</em> court felt no need for such expert testimony.<br /> </span></p> <p><span class="maintext"><em> AW v. Fairfax County</em>, 372 F.3d 674 (4th Cir. 2004), involved another ADHD student, this time in the sixth grade, who wrote a threatening note on the computer file of a student he disliked. A manifestation determination review was held and the committee determined that the behavior was not a manifestation of AW’s disability. The district transferred AW to another elementary school in the district for the rest of the year. The parents brought a due process action which stayed the transfer. At the hearing, AW’s psychiatrist testified that AW’s IEP failed to address AW’s oppositional defiant disorder and that AW’s conditions figured prominently in the behavior for which he was disciplined. Nevertheless, the due process hearing officer affirmed the board’s determination of no manifestation. The parents appealed but the board went forward with the transfer. The court ruled that the transfer was not a change in placement giving rise to due process protections. Quoting the <u>Honig</u> language about “temporary changes short of exclusion”, the court found that a change in placement occurs where the change in location results in a dilution of the quality of a student’s education or a departure from the student’s least restrictive environment setting. “In light of our conclusion that ‘educational placement’ fixes the overall instructional setting in which the student receives his education, rather than the precise location of that setting, we conclude that AW’s transfer between such materially identical settings does not implicate the ‘stay-put’ provision.”<br /> </span></p> <p><span class="maintext"> On the substantive issue of manifestation, the court found that the educational records supported a finding of ADHD, but not one of oppositional defiant disorder. Therefore, the court found no error in the committees decision that AW’s placement and program were appropriate and that his ADHD did not figure into the behavior for which he was disciplined. Specifically, “nothing in the IEP’s or the school psychologist’s evaluation suggests that AW’s interpersonal difficulties were so substantial that they could not be managed by outside counseling or that they would be exacerbated by being placed in the general … curriculum with other students.” Further, “[t]o the extent that students with ADHD may be described as impulsive, the circumstances of the conduct for which AW was disciplined indicated forethought and investigation, as he had to figure out a way to gain access to his target’s personal folder.” This theme reappears in numerous cases: any action that takes planning cannot possibly be a manifestation of ADD.<br /> </span></p> <p><span class="maintext"> There are dozens of court cases and hundreds of hearing officer decisions which could be reviewed. Some actually find that the behavior was a manifestation of the child’s disability, but not many. One further thing to keep in mind: sec. 1415(k)(1)(G) permits school authorities to remove a child with for up to 45 days without regard to a manifestation determination where the child “knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, while at school.” The district is still required to go through the manifestation determination process, <em>AP v. Pemberton</em>, 2006 WL 1344788 (D. N.J. 2006), but the change in placement can be made without regard to the outcome.</span></p> <h2 class="maintext"> 8. Point systems</h2> <p class="maintext">A change of placement as a result of misbehavior may be to an interim alternative educational placement. The therapeutic schools are highly structured and utilize very involved point systems, whereby students can earn privileges through compliant behavior and lose privileges through noncompliant behavior. As one such school puts it on their web site, “This is accomplished primarily by providing students with high rates of positive reinforcement in response to desired behaviors, clearly presented and consistently implemented behavioral expectations and limits, consistent and appropriate interventions in response to undesired behaviors, social skills instruction, and interactions with staff members that communicate interest, acceptance and respect for the student.” [<a class="maintext" href="http://www.ces.k12.ct.us/page.cfm?p=449" target="_blank">http://www.ces.k12.ct.us/page.cfm?p=449</a>.] </p> <p class="maintext"> Is there any research-based, peer-reviewed scholarly literature to support the long term efficacy of such a behavior management approach? I have had this issue arise in numerous hearings, as school officials pronounce, with great assurance, that such point systems are scientifically sound. Yet, never has any such individual produced any literature in support. Surely, such a system will work, for many children, to modify their behavior while in the highly structured environment. What is not clear is whether this highly structured, point-based system teaches the child any coping skills, any impulse control, any better way to control frustration. If we insist on scholarly support for reading programs, surely we should insist on scholarly support for a behavioral program.</p> <p class="maintext"> <strong><em>9. LRE and Behavior</em></strong></p> <p> <span class="maintext"> Most courts now use the <em>Oberti v. Board of Education</em>, 995 F.2d 1204 (3rd Cir. 1993), tripartite test for inclusion. The third prong says, “the possible negative effects of the inclusion of the child on the education of other students in the class.” <em>Id.</em> at 1218. This factor licenses school boards to say, “We can’t keep Johnny in the regular classroom because he is too disruptive.” Such a position is not tenable. Under the scheme set forth in OSEP 95-9, the IEP Team is obliged to consider all aids and supports reasonable before removing a child from the regular education classroom. Among the supports that need to be considered are a one-to-one aide and a behavior intervention plan. If the district has not conducted a functional behavioral analysis and worked on a plan to eliminate the antecedents to inappropriate behavior as well as to try out various consequences, both positive and negative, the district has not considered the aids and supports reasonable to justify removal from the mainstream. </span></p> <h1 class="maintext">D. Our Job</h1> <p class="maintext"> I have painted an ugly picture of the state of discipline of children with disabilities in public schools. To make matters worse, many hearing officers and judges are so afraid of being labeled soft on the next Eric Harris and Dylan Klebold that they swallow the school board’s bait about disruption and violence and terror in school in case after case. We have an uphill battle. The reality is that kids with disabilities exhibit maladaptive behavior because they cannot communicate like their peers, because they are frustrated by their disabilities, because they are forced to perform academic work which they do not understand, because they are mad that schools do not see them for who they are, because they lack the social skills to understand non-verbal cues, because they lack the ability to control their impulses. Representing kids with tough behaviors is the core of what we do. </p> <p class="maintext"> In the area of behavior, we are going to lose more cases than we win. We are going to continue to face teachers, administrators, hearing officers, and judges who live in fear and strive to promote fear in others. We have to fight this public paranoia. We need to return again and again to the fundamental truth: children with disabilities are entitled to a free appropriate public education. Effective, sustained programming can reduce, but not eliminate, acts of violence, disruption, and oppositionality. Throwing away kids who have a hard time functioning in school is bad for the children, bad for school and horrible for society. </p> </td> </tr> </table> </td> </tr> <tr> <td class="contnet"> </td> </tr> <tr> <td align="center" class="contnet"><p class="contnet"><strong>(860) 572-8585 | 86 Denison Avenue | Mystic, Connecticut 06355</strong></p> <p>[<a href="index.html" class="bottomnav">Home</a>] [<a href="mission_statement.html" class="bottomnav">Mission Statement</a>] [<a href="who_I_am.html" class="bottomnav">Who I Am </a>] [<a href="Cases_litigated.html" class="bottomnav">Cases Litigated</a>] [<a href="questions.html" class="bottomnav">Questions About Legal Representation</a>]<br /> [<a href="retainer.html" class="bottomnav">Sample Retainer Agreement</a>] [<span class="bottomnav"><a href="special_education.html" class="bottomnav">Useful Special Education Links </a></span>] [<span class="bottomnav"><a href="articles.html" class="bottomnav">Legal Commentary</a></span>] [<a href="contact.html" class="bottomnav">Contact</a>] [<a href="disclaimer.html" class="bottomnav">Disclaimer</a>] [<a href="sitemap.html" class="bottomnav">Sitemap</a>]<br /> Site Designed by <a href="http://www.easywebcreations.com" target="_blank" class="bottomnav">EasyWebCreations.com</a></p></td> </tr> </table> </body> </html>