I just resolved a case in which a school was trying to expel my client, a child with Asperger’s. He is considered gifted with intelligence. He has a talent for foreign languages, having learned five of them including Chinese. However, his Asperger’s often causes him to act clueless regarding the context of his actions. The case raised the issue of whether he was being expelled for his behavior or for his disability.

Special education law requires that children with disabilities have the same right to a free, appropriate public education as their non-disabled peers. A student can’t be denied a public education just because of a disability. However, when that disability results in misconduct, the issue becomes murky.

If the misbehavior is a manifestation of the disability, then the child should not be expelled. Otherwise, the child can be expelled, but still must be provided an education in an alternative setting.

In the Asperger’s case, his special education team decided by a vote of 5 to 3 that his behavior was not a manifestation of his disability. However, the team refused to consider important information from a therapist. We requested expedited due process to appeal the manifestation determination. Yesterday, we resolved the case on other grounds which permitted the student to return immediately to his school.