It’s the Law: Student Concussions

By Perry Zirkel Principal, March/April 2017

By Perry Zirkel
Principal, March/April 2017

Concussions, like bullying and transgender rights, have become a hot topic in terms of public awareness and school priorities. One sign of this special attention is the significant increase of state laws specific to concussion protocols in interscholastic athletics. The following case illustrates the legal issues of concussions in the context of the school’s classrooms rather than the school playing field (a more relevant perspective for elementary school principals). In this context, the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act, along with its sister statute, the Americans with Disabilities Act (ADA), come to the fore. The accompanying question-and-answer discussion illustrates the case law issues and trends, focusing primarily but not exclusively on the curricular context.

The Case

In September 2012, student J.P. incurred a concussion when he hit his head on the doorframe upon jumping over a chair while exiting PE class. He returned to school within a week with a doctor’s note outlining a few restrictions. At the end of the following week, the doctor cleared J.P. from all restrictions. Three months later, he suffered another concussion when he hit his head on a volleyball stanchion in PE class. He returned to school soon thereafter with a doctor’s note excusing him from PE and “mental activities,” such as testing, until further notice. Per the note’s additional evaluation of a “504/IEP evaluation,” J.P.’s parents formally requested an evaluation based on his “concussion issues.”

The school obtained formal parental consent and conducted the evaluation. In the family history section, J.P.’s mother listed an additional concussion he sustained during a soccer game in 2009, and reported substance abuse, antisocial behavior, and physical abuse in the home. The school psychologist’s testing garnered results in the average range, without evidence of attention-deficit hyperactivity disorder, learning disabilities, or other cognitive processing disorder.

In his interview with the psychologist, J.P. reported that the previous 12 months had been “the worst period in his life,” including issues relating to his father’s use of alcohol, his mother’s boyfriend, and his sister’s conflict with his mother. The evaluation also included (a) the doctor’s follow-up report, which continued restrictions from contact sports but cleared J.P. for schoolwork; (b) the report card data and structured anecdotal information from his teachers and the school nurse, which generally did not approach clinical significance; and (c) two pairs of classroom observations, which she and the school counselor separately conducted.

The school psychologist concluded that J.P. had no need for special education. In light of the problems reported in the home, her recommendations were limited to the use of a cognitive-behavioral approach and child-family counseling. The multidisciplinary team met and determined that J.P. did not qualify for either an IEP or a Section 504 plan.

J.P.’s mother disagreed, formally requesting an independent educational evaluation (IEE) at public expense. In response, the district denied her request and filed for a due process hearing. After conducting a hearing, the hearing officer ruled that the district’s evaluation was appropriate, thus denying the requested IEE at district expense.

In the interim, based on recommendations from the student’s neuropsychologist, the district made temporary arrangements for partial cyber schooling and consultation with Brain STEPS, a state concussion-related technical assistance team. After a few months, the district, in coordination with the Brain STEPS team, returned J.P. to his regular school arrangements based on the determination that there were no signs of any concussion symptoms.

The parents filed for a second, separate impartial hearing, claiming district violations of child find and eligibility under the IDEA and, alternatively, Section 504. The hearing officer ruled that the student did not need special education under the IDEA and was not limited in a major life activity, such as learning, as required for Section 504 eligibility.

The parents appealed both hearing decisions to federal court in Pennsylvania.

What do you think was the judicial outcome of the appeal?

In Perrin v. Warrior Run School District (2015), the court ruled in favor of the district. First, the court concluded that the district’s evaluation was appropriate, pointing out that its obligation was to consider, not necessarily adopt, the opinion of the student’s physician and neuropsychologist. Second, the court rejected the parents’ “child find” claim, concluding that the district conducted the evaluation within a reasonable time after having knowledge of the student’s two concussions in the first semester of 10th grade. Third, the court upheld the determination that the student did not qualify for eligibility under the IDEA or, without clearly separate reasoning, Section 504.

Does other case law square with this court’s decision with regard to the IDEA?

Although the case law to date has largely consisted of hearing officer, rather than court, decisions, the analysis similarly is based on the individual circumstances in terms of the number and effects of the concussions and any other, separate disability conditions. The bottom line is whether the child needs special education.

In most cases based solely on a concussion alone, the answer is either the lack of the requisite reasonable suspicion to require an IDEA evaluation (under the child find obligation) or an evaluation that determines that more informal and short-term arrangements, such as an individual health plan, suffice without the need for special education. However, in some cases the child with a concussion has a different situation from that of J.P., such as already being on an IEP or otherwise experiencing more notable effects, leading to individualized variance in the case law.

Isn’t the Perrin court’s outcome regarding Section 504 much more questionable?

No. Although the analysis of both the Perrin hearing officer and the court were rather scant with regard to Section 504, more in-depth examination would largely point in the same direction. This examination would extend to not only identifying the one or more applicable major life activities, but also—and ultimately more importantly—the duration and severity of the post-concussional effects in terms of whether they constituted a substantial limitation.

More specifically, as a result of the ADA amendments of 2008 and the ADA regulations of 2016, the affected major life activities may be, for example, thinking, concentration, and/or sleeping even if not learning. As for substantial limitation, the duration of a few weeks or even a month or two would generally not suffice. However, these liberalized eligibility standards for Section 504 seem to suggest that if the post-concussional symptoms were for a longer period, the limitation on one or more of these major life activities may qualify as substantial depending on their severity in comparison to most people in the general population.

What has been the focus and frequency of recent litigation concerning students with concussions?

Most of the court cases to date have arisen in the context of interscholastic athletics, focusing on the issue of “return to play.” These cases have largely consisted of common law claims of negligence or constitutional claims of substantive due process, and the outcomes have been heavily but not entirely in favor of the school district defendants.

However, a second line of cases, including Perrin, has emerged in recent years that focus on the legal obligations for facilitating the continued educational progress of the student, referred to under the rubric of “return to school.” These decisions have been more varied in their claims, extending to Section 504 and the IDEA, and in their outcomes, although generally lacking in rulings conclusively in favor of the plaintiff-parents.


In the classroom, as on the playing field, public schools should have policies and procedures in place to protect the physical safety and facilitate the educational progress of students reasonably suspected of having sustained one or more concussions. In light of the frequency and outcomes of the case law to date, the primary reason effectuating these policies should be professional proactivity rather than legal liability. Regardless of whether the student sustains the concussion in the classroom, on the playing field, or elsewhere, schools need to be well prepared to take affirmative actions to facilitate the student’s return to school for the sake of educational progress as well as medical safety.

First, proactive, almost automatic protocols should be in place for return to school, just like return to play. Second, depending on the severity and duration of the impairing effects of the concussion, Section 504 or the IDEA may apply, adding specific legal requirements in flowchart-like fashion from “child find” to eligibility to free appropriate public education under Section 504. Finally, individual health plans under state law or school policy should serve as the backup for extending the immediate and informal appropriate adjustments, to the extent that the post-concussion symptoms necessitate.

In many cases, the readily available professional sources, such as Brain STEPS and other such specialized programs, may be more tailored to the student’s situation than the less specifically sensitive steps applicable under the IDEA or Section 504. Thus, for concussions, principals need to be prepared not only in terms of legal requirements, but also professional recommendations.

Perry A. Zirkel is professor emeritus of education and law at Lehigh University.

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