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Special Education Article

Discipline in special education and the manifestation determination.

When disabilities and behaviors are intertwined the disciplinary result can distract from the real educational needs. Distinguishing between the manifestation of a disability and general misbehavior can be difficult. Once a child is characterized as having a behavioral problem the disability seems to have a way of disappearing in the eyes of those working with the child. The law provides an extra layer of protection, called a manifestation determination, to children with disabilities to help ensure that the school is responding to behavioral problems and not the disability itself. If it is determined that the behaviors are a manifestation of a child's disability then the school must act to remedy the problem. If the behaviors are not a manifestation of the disability than general education disciplinary rules apply.

A child with a disability is entitled to a manifestation determination when there is a change of placement. If there is no change in placement then regular disciplinary rules apply. A change of placement occurs when a child is removed for more than 10 consecutive days, there are a series of removals for substantially similar behaviors within a school year that exceeds 10 days, or the school otherwise determines there is a change of placement. A change in placement can occur when there are suspensions, expulsion, or removal to another setting, including an interim alternative educational setting.

If there is a change in placement there must be a manifestation determination held within 10 school days. Parents must be given reasonable notice of the meeting and a copy of procedural safeguards. The manifestation determination is like an IEP meeting and the agenda is to review the behaviors requiring disciplinary measures and all relevant information to determine whether the disability caused the behaviors in question. The manifestation team is similar to an IEP team and must answer two questions, whether there's a substantial relationship between the behavior(s) and the disability, if the nature of the disability impairs behavioral control, and if the behaviors resulted from the school's failure to implement the IEP.

Finding either a substantial relationship between the disability and behavior or a failure to implement the IEP requires a finding that the behaviors were a manifestation the child's disability. A negative finding would subject the student to regular disciplinary rules (and any related protections). But, once there's a positive manifestation finding the team must take further steps to address the behaviors. If there's a behavior intervention plan in place it must be revisited; otherwise, a functional behavioral assessment must be done and a behavioral intervention plan put in place.

Generally, a positive finding of a behavioral manifestation requires that a child be returned to the placement they were removed from. However, under special circumstances the school may provide an interim alternative educational setting of up to 45 days, even if there was a positive finding. Special circumstances include things like dangerous weapons, possession, use, or sale of illegal or controlled substances, or serious bodily injury. Essentially, the law attempts to strike a balance between the need for disciplinary intervention and the behaviors that a child with a disability is unable to control.

A student that is currently ineligible for special education may still be entitled to a manifestation determination. For this to apply, the school should have had knowledge of the disability before the behavior occurred that resulted in disciplinary action. For example, if you or someone on the school staff expressed concerns or an evaluation was requested this could constitute knowledge. However, these protections won't apply if consent for an evaluation was refused or an evaluation was done and a determination made that the student did not qualify for special education.

If you are faced with a manifestation determination it's important that you are prepared to show a connection between your child's disability and the behavior(s). Sometimes making the connection is easy. Other times, distinguishing between misbehavior and a manifestation of the disability can be quite difficult. For example, a child's disability may show signs of anxiety and frustration that can lead to short temper and conflict with other students. Hyperactivity can lead to quick inappropriate responses both physically and verbally. Touching or nonresponsive behaviors may be seen as inappropriate towards staff or other students. It's important to make the connection between what occurred and the behaviors that resulted from your child's disability.

A negative manifestation finding may be appealed through an expedited due process hearing. Manifestation determinations are not always right, a decision can be reversed, and a placement restored. Additionally, a change in placement doesn't strip away special education rights. During a non-change in placement the obligation to provide special education and services is generally limited to the extent the services are provided to non-disabled peers. However, during a change in placement a student must be provided with an appropriate education geared towards making progress and transportation if necessary.

In absence of special education protections the general education disciplinary rules apply. The California Education Code identifies 23 categories of acts that can lead to suspension or expulsion. Suspension in California can last up to 5-days. Depending on the nature of the behavior suspension or expulsion may be discretionary or mandatory. Even for mandatory expulsions you may argue that an expulsion is inappropriate under the circumstances. For discretionary expulsion you may argue that there are other means of correction feasible to bring about proper conduct and there is no danger by remaining in school. In the event that a suspension is not a change in placement or there's a negative manifestation determination there are still options.

Written by Seth Schwartz, Esq. | Last updated: July 21, 2012
Copyright © 2012 the Law Offices of Schwartz & Storey.

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