Washington Law Review


School violence and other school discipline issues erode trust and confidence in our public schools and inhibit students from obtaining the education necessary to participate meaningfully in our nation's democratic and political institutions. This Article examines an issue of school law that appears almost insoluble-what one judge has called the "exquisitely difficult" issue of school discipline and the disabled student. The issue is governed by the Individuals with Disabilities Education Act (IDEA, enacted in 1975), which imposes significant constraints on school authorities who wish to discipline disruptive or violent disabled students. School officials have stated that IDEA left them powerless to protect teachers, staff, and other students from disabled students with severe behavior disorders. In part to address some of these concerns, Congress amended IDEA in 1997. Indeed, school discipline was the "top concern" and the "most contentious issue" Congress faced in the amendment process. When the Department of Education issued Proposed Regulations in October 1997, the passion that permeates this issue erupted once more. The Department received over 6000 comments and was called before Congress in April 1998 to explain the uproar. The Department promised to issue Final Regulations by May 30, 1998, but the regulations were not promulgated until March 1999. This Article addresses this complex issue at contextual, theoretical, and remedial levels. It first places in historical context the current controversy over the recent amendments regarding school discipline. This examination reveals the political spirit that infuses this issue—a spirit that resonates with the current debate over racial affirmative action. After analyzing the effect of the new discipline amendments, the Article explores how some theories used primarily in criminal law relate to the school discipline issues that IDEA raises. Finally, the Article suggests how these troubling issues can be resolved by the community, the judiciary, and Congress.

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