Section 504 – Students’ Rights – Expulsions
In a challenge raised by a parent at one of our schools, the argument was made that because the
student had accommodations for a disability under Section 504 of the 1973 Civil Rights Act, we
could not expel him from the school. “504’s” as they are called, usually apply to disabilities or
other conditions that IEP’s do not cover. In most cases, unless the public school is providing
direct services to the student, we do not recommend that a Catholic school participate in the 504
process (instead use an ICEP for educational accommodations provided). In this case the 504
was already in existence from another Catholic school.
From archdiocesan attorney, Jay Mercer:
Joe:
I have reviewed the information you faxed to me. I don’t believe any potential violation of Sec.
504 could exist, even if the teachers signing the IEP would some how impart jurisdiction over
the Catholic school. First of all, I believe that the (Catholic school) teacher’s signature is merely
an acknowledgment of her presence at the meeting. I do not believe that it represents the
acceptance of any obligation by the Catholic school. Secondly, even if Sec. 504 or IDEA
(IEP) applies, it does not apply in these circumstances because a crime (drug violation) was
committed.
In a 1997 case, the 7th Circuit found that Sec. 504 and the IDEA was not applicable to conduct
that was criminal. After the plaintiff student was expelled from high school for the semester
based on possession of drug paraphernalia and marijuana, his parents filed an action against
defendants, (public) high school district and school board, on grounds that plaintiff student was
entitled to an education under the Individuals with Disabilities Education Act (IDEA) 20
U.S.C.S. § 1400, and that refusal to stay his expulsion during his due process hearings violated
the stay-put provision of the IDEA 20 U.S.C.S. § 1415(e)(3)(A). The lower court ruled in favor
of the school and granted summary judgment in favor of all defendants.
On appeal, the court affirmed the lower court's decision to grant summary judgment. The court
held that plaintiff student's criminal conduct forfeited his right to a free public education
(FAPE) under § 1412(1) of the IDEA. Therefore, the defendant school district did not violate the
IDEA when it did not provide alternative services during his expulsion. The court held that
plaintiffs received an adequate hearing and that defendant school district was not required by the
IDEA to maintain his placement during the due process hearings absent a relationship between
the misconduct at issue and the child's disability (Doe v. Board of Educ., 115 F.3d 1273 (7th
Cir. 1997)).
The court held the Individuals with Disabilities Education Act, 20 U.S.C.S. § 1412(1), only
requires the state to provide all handicapped children with the right (i.e., access) to a free
appropriate public education (FAPE), (i.e., not a private education) and, as with any other
right, that right of access to educational services may be forfeited by criminal or other conduct
antithetical to the right itself. The Individuals with Disabilities Education Act was not designed
to act as a shield to protect a disruptive child from routine and appropriate school discipline.
When a handicapped child is properly expelled, the (public) school district may cease providing
all educational services -- just as it could in any other case (and, so can Catholic schools).
In sum, the Catholic school may proceed with its normal hearing process (for expulsion) without
fear of liability. I see no possible relationship between the (disabilities of) ADD or ADHD and
being involved in a “drug deal”. Proceed with the expulsion process.
Opinion from:
John S. (Jay) Mercer, Attorney at Law
MERCER BELANGER
March 10, 2008
(identifying information removed and parentheses added – GJP)