Let’s assume that there is more here than an isolated incident. Let’s assume that the school district has a policy that treats special education students differently, say by requiring that they return to a classroom setting within 30 minutes regardless of the potential danger (the supposed reason being that they need the surroundings of the specialized classroom to be properly cared for). Now, do we have a violation of the 14th Amendment?
Answer: in all likelihood, no. For a violation of the equal protection clause of the 14th Amendment, there usually must be found to be true two things. First, there must be a ‘suspect classification’, that is, a discrimination of some people into a class that is so against public policy that we deem it presumptively unreasonable. Second, the governmental policy in such a case cannot be narrowly tailored to serve a compelling governmental interest.
As an example of this test, contrast a policy to force all African-Americans to ride special busses. Discriminating African-Americans from the rest of the residents of a city would create a ‘suspect classification’; as a matter of public policy we presume that any policy that treats blacks differently is wrong, based upon our past history of having treated them so abysmally. In the absence of a compelling state interest in segregating blacks from all others, the policy would be struck down as a violation of the equal protection clause. To date, no court case has found a compelling state interest that supported treating blacks less well than whites were treated; Bakke v. University of California Regents can be read as finding a compelling state interest in support of treating blacks better than not-blacks. Soon, that issue may be addressed by the high court squarely, likely as a result of the current challenge to the policies of the University of Michigan regarding affirmative action in admission of students.
Returning, then, to our hypothetical question, we find that those who need special education have not been found in the past to be a ‘suspect classification’. Hell, the Supreme Court hasn’t even managed to declare that classifying people on the basis of GENDER is suspect; it’s pussy-footed around that concept for twenty years or more. Therefore, in the absence of a determination that treating those with such medical conditions that they need special education differently is inherently suspect, the court would defer to the policies of the ‘state’ and allow virtually any articulated governmental purpose to support the policy.
Disclaimer: I am WELL aware that this thumbnail sketch of equal protection law is hardly a complete answer to the question asked. I didn’t think it needed detailed analysis of the court cases that might be on point. Yes, there is a middle level of scrutiny, no, it doesn’t require a ‘suspect’ classification, and yes, it results in some policies being ruled unconstitutional that wouldn’t be so ruled under my analysis above. Nevertheless, such a middle level of protection hasn’t yet been applied to those who are ‘handicapped’, and I haven’t cluttered up the answer with a review of why it probably won’t be so applied.
