At issue in this hearing was whether Theodor, a student in the Fairfield District, was protected by the "stay put" provision of federal and state law in relation to an expulsion decision made by the District's Board. Theodor was expelled in June 1997 due to acts of vandalism at the middle school building. An evaluation was conducted by the AEA and the District but no evidence existed to support the Appellants' claims regarding a disability status and Theodor was subjected to the normal disciplinary procedures of the District.

Theodor admitted to illegally entering the middle school on April 13, 20, and one other occasion. The Jefferson County Juvenile Court assigned him to the Youth Home in Iowa City for a comprehensive diagnostic and aevaluation assessment. He returned home on May 21, 1997. The May 29 expulsion hearing resulted in Theodor's expulsion for two semesters. Theodor can enroll agains in the Spring of 1998. He was not given credit for his work during the Spring of 1997.

Appellants' concerns were that 1) Theo's educational needs were not being met; 2) Theo's behavior; 3) Theo's ability or lack to foster good interpersonal relationships with other students and school personnel. Appellants feel Theo had been repeatedly harassed by other students and had been the victim of 5 assaults. Evaluations were conducted at the Youth Home. The psychiatric diagnostic impression was "adjustment disorder of adolescence with some mixed features"; the psychological diagnosis was "adjustment disorder with disturbance of conduct".

Prior case law is inconsistent. The effect of applying the stay put provision would be to delay and prevent expulsion of the students from school. The critical principle that is applicable to this case is whether the school district knew or reasonably should have known that the student is a student in need of special education. Courts have allowed the use of stay put in cases where there was substantive evidence of a disability about which the school knew or should have known (Davis v. Independent School Dist., No. 196, 23 IDELR 644 (1996).

In sharp contrast there are cases of parentally-referred students involved in disciplinary proceedings for whom there was no prior evidence of disability status. The court stated if the stay put provision is automatically applied to every student who files an application for special education, than an avenue will be open for disruptive, non-disabled students to forestall any attempts at routine discipline... .(Rodiriecus, p. 566).

Based on the prior case law, Theodor A is not eligible for the stay put protection for students with disabilities. The Fairfield District and AEA 15 prevail on all substantive issues.