A school district may go directly to court to seek an injunction excluding a dangerous student from school, without first exhausting the expedited due process hearing procedure, a federal district court has ruled in Gadsden City Bd of Ed, v B.P., 28 IDELR 166 (ND Ala, 1998), in the first reported federal court decision considering the effect of the IDEA-97 discipline amendments.

Two 14-year old mentally impaired students began yelling and cursing and trashing their classroom. When the students ignored the teacher's order to stop, the other students were evacuated from the classroom. The two students then began fighting with each other, destroying property and threatening each other with broken glass. The police were called and removed the students. During the disturbance, one of the students threatened to bring a gun to school and shoot the teacher.

The students were suspended for three days. They had caused similar disturbances in the past and been suspended. Two days later, the district filed an action in state court, seeking an injunction authorizing it to suspend the students from school. The court entered a temporary restraining order permitting their continued suspension until it held a hearing. On the morning of the hearing, the district and the students' guardians entered into a written agreement to remove the students from the district and the court entered a stipulated order for preliminary injunction.

The guardians then removed the case to federal district court and sought to set aside the preliminary injunction on the basis that the 1997 amendments to IDEA required the district to exhaust administrative remedies before seeking judicial intervention. The district responded that the case was moot because the students were in an agreed-upon placement which negated the need for any due process hearing. The court rejected the mootness contention, finding that should the students return to school, they were likely to continue to create a substantial risk of harm that would result in another effort to suspend them. Thus, the exhaustion issue was likely to resurface.

On exhaustion, the court observed that IDEA does not require exhaustion when administrative remedies would be futile or inadequate. In Honig v Doe, 484 US 305 (1988), the U.S. Supreme Court recognized that the lengthiness of IDEA administrative proceedings made them inadequate where a school district sought to remove a student from school because he presented a danger to himself or others and held that courts could hear requests for injunctions in such cases without exhaustion.

IDEA-97 provides for an expedited hearing, however, and the students' guardians argued that Honig was no longer applicable. The court rejected this argument for several reasons. First, the expedited administrative hearing provision [20 USC § 1415(k)(7)(C)] is permissive. Secondly, even under the proposed regulations, a decision in an expedited hearing could take 10 business days after the request and that may not be prompt enough to permit continued exclusion of the student pending the decision (for example, in this case where the students had been previously suspended for six days). Finally, the court observed that OSEP in its Memorandum 97-7 on suspensions, dated September 19, 1997 [26 IDELR 981] had taken the position that the IDEA-97 amendments had not affected Honig injunctions. The court accordingly continued the preliminary injunction.

IMPLICATIONS:

The IDEA-97 amendments added provisions authorizing districts to seek an order from a hearing officer for an interim alternative placement when the district maintains that the current placement is likely to result in injury to the student or others and to seek an expedited hearing. While it has been generally assumed that these amendments did not affect the district's authority to go directly to court and seek a Honig injunction, the amendments did invite the question raised in this case.

A decision of one federal district judge does not bind any other judge. However, in our view, this decision is both correct and well-reasoned and it is likely that other courts will find it persuasive.