Another View of the Suspension and Expulsion Cases.

* Mitchell Yell's article; Honig v. Doe: The Suspension and Expulsion of Handicapped Students (September 1989), only partially succeeds in clarifying the Supreme Court's holding in Honig v. Doe (1988) and the principles that guide suspension and expulsion decisions. Although the article has the advantage of being written in a nontechnical style and, therefore, of being highly readable, Yell somewhat misrepresents the current legal status of the suspension and expulsion cases and may leave the unwary reader with a misunderstanding of the effect of the Honig decision. The first part of Yell's article describes five so-called common law principles of suspension and expulsion. The second part discusses the Honig decision, and the last part discusses some of the problems still facing school districts in the wake of that decision. This article focuses on Yell's discussion of common law principles. Yell asserts that all five principles retain their significance after Honig v. Doe, yet the fifth is highly problematic and should not have been included as a generally accepted principle. Furthermore, the characterization of all five principles as common law principles is inaccurate. Finally, the discussion following Principle 4 is misleading, as is Table 1. Here are Yell's five principles: 1. Temporary suspensions are available for use in disciplining handicapped students. 2. Expulsions and lengthy suspensions are changes in education placement that trigger the procedural safeguards of P.L. 94-142. 3. A trained and knowledgeable group of persons must determine whether a causal relationship exists between a child's handicapping conditions and the misbehavior. Only if no relationship exists can a handicapped child be expelled. 4. Due process procedures are required when suspending or expelling handicapped students. 5. An option open to schools is to transfer a disruptive student to a more restrictive setting. VICTORIA L. AND HONIG: PLACEMENT DECISIONS Yell's Principle 5 (p. 62) and his discussion indicate that an option open to schools, even after the Supreme Court's 1988 Honig v. Doe decision, is to unilaterally transfer a dangerous or disruptive student to a more restrictive setting. The Eleventh Circuit case of Victoria L. v. District School Board (1984) is cited in support of this proposition. Close analysis of the Supreme Court's decision in Honig, however, suggests that Honig had the effect of overruling Victoria L. insofar as Victoria L. established that P.L. 94-142 allowed a unilateral placement change of a dangerous disabled student while review proceedings were pending. Some explanation of the Victoria L. case is necessary at this point. The plaintiff in Victoria L. was a student with a mild learning disability who challenged the right of her school district to remove her from a resource room and place her in an alternative school while review proceedings (due process hearing and subsequent appeals) were still ongoing. Because the court found that Victoria's behavior in bringing a razor blade and a martial arts weapon to school and threatening to injure or kill another student was dangerous, it concluded that the defendants were entitled to change her placement without awaiting the results of her administrative appeals. Relying on the earlier Fifth Circuit decision in S-1 ,. Turlington (1981), the Victorial L. court ruled that P.L. 94-142 was not meant to prevent the school district from exercising its "traditional authority and responsibility to insure a safe school environment" Victoria L. at 374). This ruling appears at odds with the so-called stay-put provision of P.L. 94-142, which states "during the pendency of any proceedings conducted pursuant to section 14151, unless the State or local educational agency and the parents or guardian agree otherwise, the child shall remain in the then current educational placement of such child" (20 U. …