As a parent, Maria had a long rope but she was quickly nearing the end of it. The principal had just called and asked her to come to school and pick up her son, Jeremy, because the teacher said he was “out of control.” Jeremy hadn’t finished his work during class time and when the teacher told him he had to stay in during recess he had thrown his book at the chalkboard. Maria knew Jeremy could sometimes be a handful. He was in special education and had some emotional/behavioral issues, but this was the fourth time this fall that she’d been called and Jeremy had now missed ten days of school. This time the principal said he was suspended for another ten days and might be expelled or moved to a different school because his behavior was so disruptive.
While Maria knew that Jeremy’s behavior was not acceptable, she believed it was related to his disability, and that there might be better ways to deal with it than withholding recess. Jeremy struggled to sit still through class and recess was a much-needed break. It didn’t seem fair that he might be expelled for “misbehavior” that was not Jeremy’s fault. Hadn’t she heard that students with disabilities could not be punished for behavior that was a manifestation of their disability? Didn’t the law require that, as a child with a disability, Jeremy was entitled to appropriate educational services?
The Individuals with Disabilities Education Act (IDEA) provides that all children with disabilities have a right to a free appropriate public education, including children who are suspended or expelled. The IDEA has specific procedures for school administrators to follow when disciplining children with disabilities. These procedures balance the need to keep schools safe with the right of children with disabilities to receive a free appropriate public education. There is a process to determine if a student’s misconduct is a manifestation of the student’s disability, and prevents children from being punished for “misbehavior” that is related to the child’s disability. Unfortunately, the IDEA’s procedures can be confusing. Here are some questions and answers regarding the manifestation determination process that should make the process clearer.
1. Who makes the Manifestation Determination?The manifestation determination is made by a group that includes the child’s parent and the relevant members of the child’s Individualized Educational Program (IEP) team. The parent and school administrators decide which IEP team members will be included in the meeting.
2. When must a Manifestation Determination be made?Whenever the school decides to remove or suspend a student with a disability from the student’s educational placement for more than 10 school days.
3. How does the group decide if the student’s misconduct is a manifestation of the student’s disability? First, the group will review all of the relevant information in the student’s file including any information included from the IEP, teacher observations, and information provided by the student’s parents. Based on that review, the group will determine whether:
(1) The student’s misconduct was caused by or was directly or substantially related to the student’s disability; or(2) The misconduct was the direct result of the school district not implementing the student’s IEP. If the group determines that the misconduct was related to the student’s disability or was the direct result of the IEP not being implemented, then the team will determine that the misconduct was a manifestation of the student’s disability.
4. If the student knows right from wrong and understands it is wrong to violate the student code of conduct, doesn’t that mean their misconduct was not a manifestation of their disability? No, the student may know their behavior is wrong but the misconduct might still be directly related to their disability. For example, the student’s disability may limit their ability to control the behavior. Or, perhaps IEP services, such as counseling, were never provided, causing the student’s behavior to escalate beyond the student’s control.
5. What happens if the student’s misconduct is determined to be a manifestation of the student’s disability? The student’s IEP team will meet and unless there are special circumstances or the IEP team changes the student’s educational placement, the student will return to the school program they were in before the suspension. The IEP team will also conduct a Functional Behavioral Assessment and will implement a behavior intervention plan for the student. A Functional Behavior Assessment gathers information about the student’s behavior to determine what function the student’s behavior serves for the student. The behavior intervention plan is the plan to provide support to the student to intervene with the behavior.
6. What are special circumstances? In disciplinary situations involving possession of weapons, illegal drugs, or the student has caused a serious injury; the school may remove the student for up to 45 school days, even if the misconduct is a manifestation of the student’s disability. The student must receive appropriate educational services after the first 10 school days that the student is removed.
7. What if the group determines that the misconduct is NOT a manifestation of the student’s disability? If the students misconduct is not a manifestation of the student’s disability then the student may be disciplined the same as a student without a disability. But if expelled, the student is still entitled to receive a free appropriate public education. In many cases the student’s behavior is determined to be a manifestation of the student’s disability. But, parents have the right to appeal a decision that their child’s behavior is not related to their child’s disability. Hearings to resolve disagreements in the disciplinary process are expedited. That means the hearing must be held within 20 school days after it is requested and the decision must be made within 10 school days after the hearing is completed.
Some school administrators pride themselves on a no nonsense zero tolerance approach to discipline in their schools. In such an environment normal childhood mischief can be mistaken for serious misconduct. For children with disabilities, disability related behavior can be confused with misconduct requiring discipline. Being aware and making sure your child’s school is aware of the discipline procedures under the IDEA will ensure your child’s success and happiness in their education.
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Filed under: children with disabilities, Individuals with Disabilities Education Act, Special Education Law |
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Thank you for this simple, yet powerful discription of what a Manesfestation Determination is. I am a university adjunct instructor teaching special education teachers-in-traiing and I am going to give them this article tomorrow.
Sasha,
You are very welcome and thank you for your kind words. I’m glad my article was helpful. I’d be remiss if I didn’t tell you that my book
The Everyday Guide to Special Education Law, Second Edition is available and it provides information regarding the IDEA that I hope is also simple and powerful. You can obtain more information about it at http://www.thelegalcenter.org/thelegalcenter-cgi-bin/shop Many teachers of special education teachers have used it as a teaching tool. Again, thank you for your kind comments.
Isn’t is hard to determine whether or not the actions are a result of the disability? What about the child with say, autism who is low functioning that begins to hit not one student but several students. Are you telling me that the child with the disabilities will not be punished? What about the rights of the other kids who are continuing being hit in the head by that child?
Amy, thanks for your comment. The questions for the team (the parents and relevant members of the IEP team) that determines whether the child’s misconduct is a manifestation of the child’s disability are (1) Was the student’s conduct caused by or substantially related to the child’s disability or (2) Was the misconduct the direct result of the district not implementing the student’s IEP. That team will consider all relevant information to make that determination. In some cases it may be difficult to determine whether the student’s misconduct was related to the disability but my experience has been that in most cases it is not. In your example, a student with autism who is low functioning and hits other students. It may be that the student due to his functioning ability is unable to control the aggrsssive behavior. If that’s the case, we could conclude that the student’s disability resulted in the inability to control aggressive behavior and was, therefore, related to the aggressive behavior or misconduct.
It is true that if the disability is related to the misconduct, the child cannot be “punished” (long term suspended or expelled) for the misconduct. But that does not mean the IEP team cannot change the student’s placement or make efforts to control the aggressive behavior. In fact, if the misconduct is related to the disalbility the IEP team must conduct a functional behavior assessment (FBA) and implement a behavior intervention plan (BIP) to prevent the misconduct from recurring. if the BIP does not control the student’s behavior the IEP team could chnage the student’s placement to a setting with more intensive services and/or supervision. The other students have the right to a safe environment and that right can be ensured without “punishing” the student with a disability.
Disbaled Child is acting our WHY… Children on a bus are calling the disabled child names, hitting them and so on to the point of balck eyes, scratches, slaps in the head. The child retailiates and thus hits another student, the child with the disability is punished for hitting the other student. Nothing was mentioned or done to the students that did the bullying and hitting. Is this right, what about this disabled students rights?
Kurt, thank you for your comment. Unfortunately, this is a classic example of disaiblity harrasement which is a violation of Section 504 and the ADA. The school has an affirmative obligation to prevent the other children from harassing the child with disabilities. Please see my post Sticks and Stones can Break Your Bones But Words can Break Your Heart: Preventing Disability Harassment in Schools from September 2007. You should contact the 504/ADA coordinator for your district and raise these issues and/or contact the Office for Civil Rights within the U.S. Department of Education.