2012-02-14 06:02:18 by admin
Concerned with a growing trend toward violence involving students, the U.S. Congress created legislation to address school safety issues: the Gun-Free School Zones Act of 1990 and the Gun-Free Schools Act of 1994. Congress enacted the 1990 act in response to the growing epidemic of weapons at or near schools. The 1990 act, part of Title XVII of the Crime Control Act of 1990, had the support of the National Education Association, the American Association of School Administrators, the National School Boards Association, and the American Academy of Pediatrics. The act, which became effective December 3, 1990, made it illegal to possess knowingly a firearm “in a place that the individual knows, or has reasonable cause to believe, is a school zone.” The law provided a maximum penalty of 5 years of imprisonment.
Plaintiffs challenged the constitutionality of the 1990 act in both the Fifth and the Ninth Circuits. The suits asserted that the 1990 act was unconstitutional because it went beyond the enumerated powers granted the Congress under Article I, Section 8 of the U.S. Constitution. The question for both the Fifth and the Ninth Circuits was whether the regulation of interstate possession of firearms in school zones was within the commerce power of the U.S. government.
In United States v. Lopez (1993), the Fifth Circuit held that insofar as the 1990 act was not a regulation of interstate commerce and violated the Tenth Amendment, it was unconstitutional. In United States v. Edwards (1993), the Ninth Circuit refused to follow the Fifth Circuit’s lead. The Ninth Circuit concluded that since the regulation of firearms affected interstate commerce, it was within the congressional power granted by the Commerce Clause.
In light of the split in the federal appellate courts, the matter went to the Supreme Court for resolution. In United States v. Lopez (1995), the Supreme Court, in a 5-to-4 judgment, ruled that Congress had exceeded its authority in adopting the 1990 act. Consequently, Congress went back to work and revised the act.
Pursuant to the 1994 version of the Gun-Free School Zones Act, all states receiving federal funds must have laws in effect requiring local educational agencies to expel for at least 1 year any students determined to have brought weapons to school. In addition, as a condition of receipt of federal funds, the law requires local educational agencies to develop policies that require the referral of students who bring firearms or weapons to school to criminal justice or juvenile delinquency systems. The 1-year expulsion provision is mandatory, except that the chief administering officer of each local education agency may modify it on a case-by-case basis. The 1994 act makes no mention or provision for procedural due process other than for students covered by the Individuals with Disability Education Act (IDEA).
Courts have routinely agreed that the Gun-Free Schools Act does not prevent the expulsion of students with disabilities without adherence to the procedural safeguards in the IDEA. However, the IDEA does permit educators to place students in alternative placements for up to 45 days if they bring firearms or weapons to schools. Thus, compliance with the Gun-Free Schools Act, IDEA, and other related statutes requires that discipline of disabled students be determined on a case-by-case basis and in a manner similar to cases that do not involve firearms.
Once it has been established that a student with a disability has brought a weapon or firearm to school, the IDEA requires a determination by a group of persons knowledgeable as to whether this action was a manifestation of the child’s disability. The IDEA allows a student to be expelled only if the group determines that the bringing of a firearm to school was not a manifestation of the student’s disability and after applicable procedural safeguards have been followed and documented.
Jon E. Anderson
See also Manifestation Determination; United States v. Lopez