updated 6/13/2011 5:56:40 PM ET 2011-06-13T21:56:40

A judge has overturned a kindergartner's expulsion from a Philadelphia charter school for touching his teacher's thighs after she complained that her legs hurt.

The 6-year-old, who had three earlier suspensions, was merely trying to comfort his teacher, the judge concluded.

"I want to make them feel better," the boy told his teacher, according to a May 23 ruling by Common Pleas Judge Paul P. Panepinto, first reported on by The Legal Intelligencer.

The case, involving the First Philadelphia Charter School for Literacy, hints at a larger question that looms as the number of charter schools explodes across the country.

The Philadelphia-based Education Law Center argued that charter schools sometimes seek more leeway in disciplining students under the theory they can always return to a traditional public school.

"This 'double-standard' view is legally flawed," staff attorney Paul Lapp wrote in a brief filed on behalf of the boy's family. "Charter schools are public schools and are on exactly the same legal footing with respect to the disciplinary sanctions of suspension and expulsion as are 'regular' public schools."

First Philadelphia officials argue that the law gives them broad discretion to discipline students, especially after a series of disciplinary problems.

The boy had been suspended for 10 days in December for touching a girl's bottom while under a table picking up crayons. He was then suspended twice for stepping on his classmates' shoelaces or otherwise tripping or shoving them, according to the school's brief.

Panepinto focused solely on the March 19, 2010, touching incident in concluding that the school had abused its discretion.

"In permanently expelling a 6-year-old kindergarten student that had only been in school for seven months, (the school) made a gross abuse of discretion that was not supported by evidence in the record," the judge wrote.

The teacher testified at an April 2010 school disciplinary hearing that the boy's contact made her feel uncomfortable, while acknowledging that her students regularly give her hugs, the judge found.

The case has been moved to mandatory mediation by the courts, and will proceed to Commonwealth Court if no resolution is reached, said lawyer David Annecharico, who represents the charter school. He otherwise declined comment.

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