BEFORE HAWKINS, P.J., PRATHER AND GRIFFIN, JJ.
HAWKINS, PRESIDING JUSTICE, FOR THE COURT:
Today, for the first time, we consider the rights of a handicapped child under the Education for All Handicapped Children Act (EHA) passed by Congress in 1975 and adopted by Mississippi through regulations established by the Mississippi Department of Education. This child was expelled from the Pascagoula Municipal Separate School District for disciplinary reasons.
The Education of the Handicapped Act, 20 U.S.C. 1401, et seq. (1976 Ed. and Supp. IV) provides federal money to assist state and local agencies to educate handicapped children. Before a state can receive funds under the act, it must prepare a plan establishing procedures in compliance with the act. 20 U.S.C., 1412 (et seq.); Hendrick Hudson District Board of Education v. Rowley, 458 U.S. 176, 181, 73 L.Ed.2d 690, 696, 102 S. Ct. 3034 (1982).
Mississippi adopted such a plan in 1983 and revised the plan at the direction of the federal government in 1986. State Plan for Fiscal Years 1984-86; State Plan for Fiscal Years 1987-88, Mississippi State Department of Education.
The EHA requires procedural protections which allow handicapped children to challenge their education programs. 20 U.S.C. 1415. For example, 1415 (b)(1)(e) gives the parents an opportunity to challenge the educational placement of their child through an impartial due process hearing. A hearing officer appointed by the State Department of Education conducts a hearing at the local school district. 20 U.S.C. 1415 (b)(2), State Plan for Fiscal Years 1984-86, p. 15.
In 1984 parties aggrieved with the decision of the hearing officer could appeal the decision of the hearing officer to the state review team. The review team was appointed by the assistant director of instruction in charge of special education and review team members could not be employees of the State Department of Education. State Plan for Fiscal Years 1984-86, Part 2, Section IV(5) and (8)(L), pp. 15, 16. Currently the State Plan provides that aggrieved parties can appeal the decision of the state level hearing officer directly to state and federal courts. State Plan for Fiscal Years 1987-88, p.21; see also 20 U.S.C. 1415 (e)(2).
The facts in this case are undisputed. On Friday, March 26, 1984, school officials at the Pascagoula High School Annex caught John Doe *fn1 with six hand-rolled marijuana cigarettes and two knives at school. At the time John was a learning disabled tenth grader subject to EHA.
John was first suspended from school for five days. On April 9 the Board of Trustees of the District by committee held a disciplinary review hearing to consider further punishment for John. The committee heard comments from John, Mr. and Mrs. Doe, and school authorities. John said he got the marijuana from another boy, and that he traded the marijuana for knives, which he collected. He knew that it was illegal to have the knives and marijuana at school, but he did not think about the rules when he broke them. Following the hearing, the committee recommended by unanimous vote to expel John for the remainder of the school year and that he receive no credits for the 1983-84 school year. The district offered John a homebound teacher during his expulsion.
The Does appealed the school disciplinary committee's decision to an impartial due process hearing. See: 20 U.S.C. 1415 (1975). The Mississippi Department of Education appointed Dr. J. Larry Tyler to serve as hearing officer. The Does' attorney, J. Brice Kerr, offered testimony and written evidence to show that John was not violent in school. Kerr also attempted to establish a link between John's learning disability and his misconduct in school.
Raymond Brown, attorney for the school, appeared and presented evidence through the testimony of school administrators and teachers. The school argued that John was informed of the school rules and that this violation of school board policy posed a potential threat to the welfare and safety of the student body. The school district argued that John's misconduct was not related to his learning disability, and pointed out that the school system offered John a homebound teacher in compliance with the Education for All Handicapped Children Act. The school asked the hearing officer to affirm John's expulsion and withhold academic credit for the 1983-84 school year.
The hearing officer was of the view that the school system was limited in its disciplinary options for handicapped students, and that expulsion was permitted only where" the child's behavior represents an immediate physical danger to him/herself and others or constitutes a clear
emergency within the school such that removal is essential. "He concluded that John was not an immediate danger to other students or did not present a clear emergency to the school, and also that the issue of John's expulsion was moot because he had completed the 1983-84 school year.
The school appealed the hearing officer's decision to the education state review team, which affirmed the hearing officer's decision on July 11, 1984, and also determined that John should receive credit ...