FALMOUTH (AP) – Even though 9-year-old Jan Rankowski will be too old this fall to use the elementary school playground during recess hours, his parents aren’t giving up their fight for him to be allowed to play there.

For them, it’s a matter of principle.

“They’re in an indefensible position,” said Charles Rankowski, Jan’s father. “They threw a disabled child off the school yard for absolutely no reason.”

Jan’s parents are suing school officials for banning their home-schooled son, who has Asperger’s syndrome, a condition related to autism that’s characterized by deficiencies in social and communication skills.

School officials say the boy was never permanently barred from using the playground. They only wanted a psychologist to evaluate his playground behavior after complaints from students and staff. His parents refused.

Advocates say that what started as a playground spat could end up having repercussions on the way school districts treat children with neurological disorders and home-schooled students.

The school district contends the lawsuit has no merit and has asked a judge to dismiss the case. A hearing is scheduled for Aug. 20.

“The home-school statute says you can use the facility in the same manner as enrolled students, not that you are above the law or have a different law,” said Melissa Hewey, attorney for the school officials.

Jan’s family moved to Falmouth from New York after the Sept. 11 attacks and he attended the Plummer-Motz School in the second grade, enrolled in special education classes. He improved so much over the year that school officials wanted to move him to a regular class in the third grade.

“That’s the spirit of the law, to integrate kids into the regular education or general education program as much as possible,” said Carolyn Crowell, director of Falmouth’s special education program. Several children with Asperger’s attend Falmouth schools, she said.

Jan’s parents wanted him to stay in special education classes.

“Just because you’re getting somewhere, doesn’t mean you remove it,” said Gayle Fitzpatrick, his mother. “If it’s working, don’t fix it.”

Putting Jan in mainstream classes was “a disaster waiting to happen,” she said, because he lacked the coping skills to handle being stressed out in a large class. So Jan’s parents decided to educate him at home.

After a year of home-schooling, they were elated when Jan asked to go to the playground, known locally as the Maze Craze.

They were pleased because they wanted him to be able to interact with other children. The playground is used by elementary school pupils; it serves as a town playground after school lets out.

“When he said he wanted to go play with other kids, we thought it was great,” Charles Rankowski said.

In the year that Jan attended the school, there were no incident reports filed about Jan’s playground behavior. But administrators said they began fielding complaints shortly after he began playing there last fall.

Students reported that Jan swore and threatened them, played roughly with younger children and kicked one child. Teacher’s aides said he defied their commands and told students they didn’t have to listen, either.

“This is somebody who would not take adult instruction and was encouraging other students not to,” Hewey said. “The people who are supervising the playground during school hours need to be listened to, by everybody.”

While Jan’s parents say students who misbehaved similarly would be punished by being barred from recess for a few days at most, school officials say Jan’s suspension was not disciplinary. They wanted to return him to the playground once a psychologist could evaluate his behavior and determine ways for him to interact better with other children.

Jan’s parents say previous assessments of the boy were sufficent and that his suspension was meant to exclude their son.

“Discrimination is treating someone very, very differently,” Fitzpatrick said. “Neurologically based behaviors are not crime scenes waiting to happen.”

They say they hope their lawsuit will force schools to treat disabled or home-schooled children the same way as other children.

“It’s going to set a precedent across America,” Charles Rankowski said. “Schools are going to realize they can’t exclude a child because of a disability. This is going to help children across America.”

AP-ES-08-01-04 1219EDT