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Miller, Tracy, Braun, Funk & Miller, Ltd. presents

Law and Order:

Manifestation Determination Unit

www.millertracy.com

Basic Legal Requirements

Trends and Common Issues

Procedural Compliance

Making the Decision

Update from Case Law

February 2014

IAASE – Springfield, IL

Brandon K. Wright Miller, Tracy, Braun, Funk & Miller, Ltd.

316 S. Charter St., P.O. Box 80

Monticello, IL 61856-0080

(217)-762-9416

[email protected]

Brandon K. Wright - 2014

Disciplinary Removals and Manifestation Determinations

Do I have to treat all special education students the same when it comes to discipline?

The federal regulations note the authority for school personnel:

School personnel may consider any unique circumstances on a case-by-case basis

when determining whether a change in placement, consistent with the other

requirements of this section, is appropriate for a child with a disability who

violates a code of student conduct.

34 C.F.R. §300.530(a).

The U.S. Department of Education has given guidance to school personnel when

considering “unique circumstances”:

Factors such as a child's disciplinary history, ability to understand consequences,

expression of remorse, and supports provided to a child with a disability prior to

the violation of the school code [of conduct] could all be unique circumstances

considered by school personnel when determining whether a disciplinary change

in placement is appropriate for a child with a disability. Analysis of Comments and

Changes, 46714.

BUT: Don’t forget the duty not to discriminate on the basis of a disability found in the

Rehabilitation Act.

ALSO NOTE: Letter to Ramirez, 60 IDELR 230 (OSEP 2012). The Department of Education

provided guidance that when a due process hearing officer is reviewing the

appropriateness of a manifestation determination review, “there may be instances where

a hearing officer, in his discretion, would address whether [a violation of the student code

of conduct] has occurred.”

When do I have to conduct a Manifestation Determination Review (MDR)?

An MDR must be conducted within 10 school days of any decision to change the

placement of a child with a disability because of a violation of a code of student conduct.


What is a “change in placement”?

(a) For purposes of removals of a child with a disability from the child’s current

educational placement under §§ 300.530 through 300.535, a change of placement occurs

if―

(1) The removal is for more than 10 consecutive school days; or

(2) The child has been subjected to a series of removals that constitute a pattern―

(i) Because the series of removals total more than 10 school days in a school year;

(ii) Because the child’s behavior is substantially similar to the child’s behavior in

previous incidents that resulted in the series of removals; and

(iii) Because of such additional factors as the length of each removal, the total

amount of time the child has been removed, and the proximity of the removals to

one another.

34 C.F.R. §500.536.

When does an in-school suspension equate to a removal invoking the protections of §§

300.530 through 300.535?

The U.S. Supreme Court has held that in-school disciplinary procedures generally do not

trigger these protections. The Court has stated that “[s]uch procedures may include the

use of study carrels, time-out, detention, or the restriction of privileges.” Honig v. Doe, ___

U.S. ___ (1988). A minority of courts viewed in-school suspension as subject to the

disciplinary procedural safeguards prior to the passage of the 1997 and 2004 amendments

to the IDEA, but the comments accompanying the federal regulations make clear that a

day of in-school suspension is not considered to be the same as a day of removal, so long

as:

The student is afforded the opportunity to continue to appropriately progress

in the general curriculum.

The district continues to provide the services specified in the student's IEP.

The student continues to participate with nondisabled students to the same

extent as he does in his current placement.

Analysis of Comments and Changes, 46715. However, if the student assigned to in-school

suspension does not receive the required educational services during that period, then the

sanction is the equivalent of an exclusion from school. See, e.g., Big Beaver Falls District v.

Jackson, 19 IDELR 1019 (Pa. 1993).


Does a bus suspension trigger the procedural safeguards?

If transportation is in the student’s IEP as a related service, and if a suspension from the

mode of transportation greater than 10 days is imposed without a manifestation

determination, the procedural safeguards are triggered.

Letter to Sarzynski, 112 LRP 35343 (OSEP, June 21, 2012). OSEP explained that a school

district cannot bypass the requirement to conduct a manifestation determination review

just because a parent decides to drive their child to school during a bus suspension.

Springfield (MA) Public Schools, 54 IDELR 102 (OCR 2009). OCR's investigation

determined that the student was absent 10 days due to suspensions for school-related

offenses and 9 days resulting from bus-related suspensions. The MDR was not timely, as

it occurred after the student missed 19 days, and even then did not satisfy the

requirements of Section 504.

When is conduct a manifestation of the child's disability?

1) If the conduct in question was caused by, or had a direct and substantial

relationship to, the child's disability; or

2) If the conduct in question was the direct result of the local education agency's

failure to implement the IEP.

20 U.S.C. §1415(K)(1)(E)(i).

Case Notes on MDRs:

Windemere Park Charter Academy, 111 LRP 1872 (SEA Mich. 2010). The alternative program a

district provided to a student (with ADHD and eligible under the category of OHI) after he was

disciplined for fighting was inappropriate, a Michigan ALJ concluded. The ALJ noted that the

instruction time students typically received in core academic subjects at the school dwarfed the

amount of instruction the district offered the student in the IAES. The student was expelled for

"30 second fighting," a planned consensual fight that occurred regularly at the school. The MD

review team determined that the student's conducted was unrelated to his disabilities, and

placed him in an IAES with 75 minutes of instruction three days per week. The parent challenged

the team's conclusion and the appropriateness of the alternative placement. The ALJ agreed with

the district that the conduct was unrelated to either the student's disabilities or an

implementation failure. However, she agreed that the IAES was inadequate. "Though there was

much testimony that the Student was progressing, whether or not the Student is progressing is


not the test," the ALJ wrote. Rather, the issue is whether the program enabled the student to

continue to participate in the general curriculum, and to progress toward meeting his IEP goals.

34 C.F.R. §300.530(d). In this case, it did not. "[T]he Student is not receiving anything near the

educational services that his [IEP] determined he needed and that he was receiving before his

expulsion," the ALJ wrote. Furthermore, he did not receive services on a daily basis, as he did

prior to the expulsion, and not all subjects were covered each session. Finally, the student

received none of the supports, such as extended time for completing assignments, that he was

receiving before his removal. The ALJ ordered the district to increase the student's instruction

time and reinstate his supports.

Westford Public Schools 55 IDELR 27 (SEA Mass. 2010). The parents of a 13-year-old who allegedly

penned a list of students he planned to shoot failed to overcome a district's decision to expel the

student. There was no evidence that the teen's conduct was caused by, or directly and

substantially related to his social anxiety or selective mutism, an impartial hearing officer

concluded. The seventh-grader had a behavior plan that addressed his tendency to withdraw

and become aggressive when anxious. The list, which he created with other students' input,

contained 75 names. On the other side of the paper, the student had written "I am bored" 50

times. After a classmate reported that the teenager said he planned to shoot the people on the list,

the district determined that the behavior was unrelated to his disabilities and excluded him for

the rest of the year. The parents filed a due process complaint, challenging the MD review team's

conclusion. The IHO noted that the usual triggers for the student's aggressive behavior were not

present when he authored the list. Furthermore, his typical responses to triggering situations,

such as nonresponsiveness, increased anxiety, or verbal and physical aggression, were absent.

The IHO pointed to teachers' testimony that they had never observed the student's behavior

escalate because he was bored and that his development of the list was a unique behavior. In

addition, the IHO was unpersuaded by the testimony of the student's psychiatrist, who stated

generally that the student could be unpredictable when upset or anxious. "The standard to

determine whether [the student's] conduct was caused by or had a direct and substantial

relationship to his disabilities requires more than a general relationship between his conduct and

his disabilities," the IHO wrote. Moreover, there was no evidence that the student was

experiencing such emotions when he made the list.

Poway Unified School District, 55 IDELR 152 (SEA Cal. 2010). While a student may have displayed

poor judgment on the day he set off a dry-ice bomb at school, an ALJ found no link between the

conduct and his ADHD. The eighth-grader's actions leading up to the incident, which involved a

series of thoughtful steps, demonstrated that he was not acting impulsively. The student made

the device by placing dry ice in a bottle and adding water. After placing it in the stall, he waited

for it to explode, which it did, injuring a teacher. The district sought to expel the student. At the

MD review, a teacher stated that the student's impulsivity manifested itself as talking and acting

out in class. She said that she overheard him discussing how to obtain dry ice a couple weeks

before the incident. The MD review team determined that the behavior was not a manifestation

of the student's ADHD. The parent challenged that decision in a due process complaint. The ALJ

noted that conduct is a manifestation of a disability of it is caused by or has a direct and

substantial relationship to it. 34 C.F.R. §300.530(e). That was not the case here. "Even if a


disability causes impulsive behavior, it is not an impulsive behavior if it takes place over the

course of hours or days and involves a series of decisions," the ALJ wrote. The evidence showed

that the student researched how to obtain dry ice, procured it, chose a place to construct the

bomb, constructed it, and selected a location to hide and explode it. Furthermore, the evidence

indicated that the student "mulled over" the steps to achieve his objective for a long period.

Because the conduct was not a manifestation of his ADHD, the district was free to expel the

student based on its disciplinary rules applicable to all students.

Arlington Heights Township High School District No. 214, 54 IDELR 107 (SEA Ill. 2010). An MD

review team's finding that a teenager with ADHD, bipolar disorder and cognitive deficits

planned to make a threat on Facebook did not hold water with an Illinois hearing officer. The

IHO pointed to extensive evidence that the student had difficulty controlling his impulses and

that his poor executive functioning precluded him from planning. The student posted the threat

when he saw the classmate on Facebook. He wrote: "When I come back to school I'm going to

look for u and kill you." After the classmate asked for an explanation, the student asked why the

classmate bullied him. The district held an MD review and found no link to the student's

disability. It expelled him. The district staff members at the MD review noted that the student

had to log onto Facebook, decide whether to send a public or private message, type and send the

message, then decide to IM the student. The district team members testified that because the

student had not seen the classmate for six weeks at the time of the incident, he must have

planned his Facebook actions. The parents claimed the team reached the wrong decision.

Agreeing, the IHO found that the student's poor executive functioning, mood swings and

inability to self-regulate, all characteristics of his disabilities, were directly and substantially

related to his sending the Facebook message. Therefore, the student could not be removed from

his placement based on the conduct. 34 CFR §300.530(e)(1). "The members of the MDR team ...

failed to fully comprehend the nature of his disabilities," the IHO wrote. Further, they ignored

the input of the student's long-time psychologist, the individual with the most insight into his

disabilities. Finally, the district's argument that the student "thought this event out, planned it

and executed it from beginning to end is simply unsupportable," the IHO wrote. As the

psychologist testified, one result of the student's executive functioning deficit, as well as his other

disabilities, was the inability to plan.

San Diego Unified School District I, 109 LRP 54649 (SEA Cal. 2009). A California district could

discipline a student with an SLD and ADHD just as it would a student without disabilities after

an ALJ confirmed that the student's conduct was not a manifestation of his disability. The

student's IEP addressed only his SLD. The district learned for the first time during a

manifestation hearing about the student's ADHD diagnosis. The student gave a classmate two

prescription sleep aids by placing the pills on her textbook in the classroom. The exchange

occurred after the classmate spent two weeks begging the student to share his medication with

her. The night before, the two exchanged text messages confirming their plan. Both students took

two pills during class. After a manifestation determination review, the student's parent objected

to the team's conclusion that his actions were unconnected to his ADHD and requested

administrative review. The district argued that the student's conduct was not a manifestation of

his disability because his actions were not impulsive consistent with ADHD. The ALJ agreed


with the district's argument, noting that the parent's experts testified that the student could make

the right decision if sufficiently impressed with the negative consequences of his actions. This

was inconsistent with the profile of the student's ADHD, which caused him to be impulsive and

incapable of making appropriate decisions at all times, the ALJ observed. "Even if a disability

causes impulsive behavior," the ALJ said, "arranging to supply drugs to another student is not

impulsive behavior if it takes place over the course of hours or days and involves a series of

decisions." Because the student's conduct followed two weeks of discussing it with his classmate,

and a text-message exchange the night before, the ALJ reasoned that the student's actions were

not the result of impulsivity brought on by ADHD.

San Diego Unified School District II, 52 IDELR 301 (SEA Cal. 2009). An ALJ found that a California

district reached the wrong conclusion when it failed to connect a teenager's ADHD to his

peripheral involvement in a single sale of marijuana seeds. Because the evidence showed that the

student's ADHD-related impulsivity and lack of medication led him to join the transaction

without thinking of the consequences, the IEP team should have found the conduct sprang from

his ADHD. For several days prior to the incident in which the 13-year-old acted as a "middle

man" in the drug sale, he skipped his medication due to side effects. Medical records confirmed

this. The IEP team, mistakenly believing the student was involved in another such transaction

that day, concluded that his conduct was not a manifestation of his disability. The district

initiated expulsion proceedings. The student's parents requested a due process hearing. At the

hearing, a private psychologist testified that the student's ADHD made him impulsive and that

he would have considered the consequences if he had taken his medication. School staff

members confirmed that the student's ADHD medication dramatically improved his behavior. A

student's conduct is a manifestation of his disability if it bears a direct and substantial

relationship to it. 34 C.F.R. §300.530(e). In this case, a close inspection of the evidence revealed no

indications that the student was involved any other drug-related sale that day. In addition,

evidence confirming the student's ADHD-related impulsivity, the impact of his medication, and

the fact that he had not taken it, should have led the IEP team to conclude that his involvement in

the sale was directly related to his ADHD.

In re: Student with a Disability, 53 IDELR 205 (SEA Va. 2009). An IHO agreed with a Virginia

district that a student's disruptiveness was planned and willful, not a result of his ADHD. Based

on the student's explanation that he was seeking attention, as well as the input of the teacher who

confronted him, the MD review team correctly found that the student's actions did not display

the impulsivity characteristic of his disability. On the day in question, the student ignored the

teacher's warning to stop blurting out words in the library. Later that day, he was disruptive

again. The district removed him to an alternative education setting. When a district removes a

student for more than 10 days because of a violation of a code of student conduct, relevant

members of the IEP team must determine whether his conduct was caused by, or had a direct and

substantial to his disability. 34 C.F.R. §300.530(e)(1)(i). In determining that the conduct was not a

manifestation of his disability, the MD review team considered the teacher's observations that the

student shifted from one objectionable behavior to another when confronted, and then defended

himself by stating that the teacher had only objected to the initial behavior. The fact that the


student shifted to another objectionable behavior when told to stop revealed forethought, the

IHO observed, not impulsivity. Furthermore, the two episodes occurred over a sufficient period

to support a finding that he was not acting in response to a sudden stimulus. Given his high level

of functioning and the student's own explanation, it was clear that he was aware of the impact

and consequences of his behavior, the IHO said. Finally, the student's parent failed to call into

question the testimony of the district's witnesses that the student's actions were premeditated.

Danny K. v. Department of Education, State of Hawaii, 57 IDELR 185 (D. Haw. 2011). An MD review

team properly determined that a Hawaii student's detonation of an explosive device in a school

bathroom was not triggered by his ADHD. The District Court concluded that the MD review

team made a proper determination, and that the team was not required to examine whether the

student falsely confessed. The parent appealed an IHO's determination that the MD review was

appropriate. The court observed that the school psychologist concluded that setting off the bomb

was a planned activity that required following directions and attention to detail -- tasks that are

difficult for students with ADHD, inattentive type, who are easily distracted. In addition, the

team determined that the student was capable of understanding and controlling his misconduct,

a conclusion that was backed up by the testimony of a behavioral health specialist. The court also

rejected the parent's assertion that the student took the blame for the incident in order to collect

money from "the real" perpetrators, and that the team failed to consider that taking the blame

was a result of impulsivity. It was not the court's or the MD review team's role to determine

whether the student falsely confessed. "Instead, the manifestation team was required by the

IDEA to determine whether the actions leading to Student's potential suspension -- as

determined by [district's] investigation -- were a manifestation of an eligible disability," U.S.

District Judge Alan C. Kay wrote. Moreover, the conduct for purposes of the MD review was the

explosion, not the confession. In any case, the vice principal's investigation supported his

determination that the student was the perpetrator. The VP testified that when he asked the teen

why he told his mother he did it for the money, the student said "I just told my mom that so she'll

get off my case."

Lewisville Independent School District, 58 IDELR 149 (SEA Tex. 2011). Notice of a student's volatile

family relationships did not render a Texas district's decision that his drug use was not a

manifestation of a disability faulty. The student received special education for LDs in reading

comprehension and math reasoning. District officials discovered the student under the influence

of drugs on campus. After determining that his drug offense was not a manifestation of his LD,

the district expelled the student. Contending that the district's manifestation determination was

inappropriate, the student's father initiated due process. He asserted that the district should have

considered whether the student's drug use was a manifestation of an ED. The IHO pointed out

that when conducting an MD review, a team must consider all relevant information in a student's

file, including his IEP, teacher observations, any information provided by his parent, and

whether his IEP was implemented. The father contended that before the drug incident, he

informed the district that the student might have ED because he exhibited serious behaviors and


an unstable emotional state at home. The district then began providing the student with

counseling services; however, the special education counselor did not notice the student

displaying any chronic or emotional issues at school. In fact, the record showed that in general,

the student maintained appropriate peer relationships, mood, and behavior at school. If he did

exhibit oppositional behavior, the counselor explained that it was insufficient to permit a

suspicion that he had ED. The IHO concluded that the drug incident may have created an

opportunity for the district to consider whether the student's emotional and behavioral needs

should be evaluated. However, considering the evidence, the district was not wrong to conclude

that the student's drug use was not a manifestation of a disability. The district ultimately

confirmed that the student did not have an ED within the meaning of the IDEA.

Los Angeles Unified School District, 111 LRP 60703 (SEA Cal. 2011). A 15-year old student with

ADHD was unable to convince an ALJ that a MDR team erred in finding that his sale of a

prescription drug to another student was not the result of impulsivity caused by his disability.

The student had previously engaged in conduct in school thought to be manifestations of his

disability. Those misbehaviors included fights with other students, class disruptions, yelling

inappropriate comments in class, insulting staff and peers and bullying. When the district

learned of the student's sale of the prescription drug to another student, which violated the

school code, it initiated a pre-expulsion meeting in which it made a manifestation determination.

The district considered expert opinion, the IEP, teacher observations, the relevant portions of the

student's records, and information from the parents. Based on the circumstances surrounding the

misconduct, the district determined that the student's misconduct was not a manifestation of his

student's SLD. The student initially planned the details of the sale with another student, went

home, and brought the drug back the next day to complete the sale. This conduct, the district

determined, was the result of premeditation rather than impulsivity caused by the student's

ADHD. The parents initiated due process to contest the district's determination that drug sale

was not a manifestation of the student's disability. Federal regulations, implementing 20 U.S.C.

1415(k)(1)(E), mandate that the essential attendees at a manifestation determination meeting

review all relevant information in a student's file, including the IEP, teacher observations, and

relevant information from parents in determining whether the conduct at issue was caused by, or

had a direct and substantial relationship to, the student's disability. Due in part to the contrast

between the student's misconduct deemed manifestations of his disability and the conduct at

issue in this instance, the California ALJ agreed with the district's contention that the student's

drug sale was premeditated and deliberate rather than a result of impulsiveness triggered by

ADHD. The ALJ decided that the district complied with federal regulations in its organization

and administration of the manifestation determination meeting and the student was unable to

show that the determination was incorrect. Thus, all relief sought by the student was denied.


Tunkkannock School District, 112 LRP 33640 (SEA Pa. 2012). A student with ADHD received four

separate three-day, out-of-school suspensions over a period of several months. The first was for

tobacco possession, the second for defacing property, and the last two for harassment. The

student's Pennsylvania district and his parent met to determine whether the conduct was a

manifestation of his disability. The team concluded that the student "has not demonstrated a

pattern of uncontrollable behavior." The worksheet from the meeting, as well as the testimony of

school officials who participated, revealed that the team's analysis of whether there was a

connection between the conduct and disability rested solely on its conclusions that there was no

pattern of behavior, that the student was able to control his conduct, and that he knew right from

wrong. The parent challenged the decision in a due process hearing. The IHO held that the

district failed to apply the IDEA's standard for whether conduct is a manifestation of a disability.

The IHO pointed out that, rather than utilizing the IDEA test for whether conduct is a

manifestation of a disability, the MD team considered whether the student "knew right from

wrong" and whether his conduct was "uncontrollable." The worksheet confirmed that the team

never considered whether the conduct was caused by or directly related to his ADHD. Finally,

the team appeared to confuse the rules for establishing a pattern of removals with the standard

for whether behavior is a manifestation.

Millcreek Township School District, 113 LRP 23568 (SEA Pa. 2013). A Pennsylvania high schooler

classified as autistic had behavioral problems in and out of the classroom. His conduct included

noncompliance, disruptiveness, and inappropriate interactions with peers. The latter included

threats and aggression, as well as attention-seeking behavior. A neuropsychologist evaluated the

student in 2010 and identified a long history of emotional and behavioral problems, psychiatric

hospitalizations, impaired executive functioning, and lack of impulse control. He opined that

emotional disturbance might be a more appropriate disability classification. The district was

aware of the evaluation. On March 14, 2013, the student suddenly lit a lighter in the bathroom,

which he showed off to two peers who were also in the bathroom. After the incident, the district

conducted a threat assessment that indicated the student was capable of hurting himself or

others. The district then conducted an MD review. The MD team reviewed documents including

a report that the student twice set fires outside of school. It determined that the lighter incident

was not a manifestation of a disability and transferred the student to an alternative school.

However, the Hearing Officer held that the student's behavior was directly and substantially

related to his disability. The IHO pointed out that the student had a history of behavioral

problems related to impulsivity and peer interaction issues. Those behaviors included fire-setting

-- a fact of which the district was aware. Moreover, the behaviors occurred during both classroom

time and unstructured activities. During the incident in question, the student impulsively

engaged in rule-breaking to have an impact on peers. "As much as the student was engaged in

the behavior for [Student's own] self, the student directed the behavior toward the two peers,

showing off the misbehavior," the IHO wrote. Finding that the conduct was a manifestation of a

disability, the IHO ordered the district to return the student to his prior placement.


What happens if the conduct is found to be a manifestation of the student’s disability?

If the MD review reveals that the conduct was a manifestation of the child's disability, the IEP

team must:

1. Either:

-Conduct a functional behavioral assessment, unless the [district] had conducted a

functional behavioral assessment before the behavior that resulted in the change

of placement occurred, and implement a behavioral intervention plan for the

child; or

-If a behavioral intervention plan already has been developed, review the

behavioral intervention plan, and modify it, as necessary, to address the behavior;

and

2. Except as provided in 34 CFR 300.530 (g), return the child to the placement from which

the child was removed, unless the parent and the [district] agree to a change of placement

as part of the modification of the behavioral intervention plan.

34 C.F.R. §300.530(f).

Waynesboro (PA) Area School District, 112 LRP 26149 (OCR 2012). A Pennsylvania high schooler

with a learning disability signed a behavior contract on April 4, 2011. The contract provided that

the student would resolve peer confrontations nonviolently and that he could be reassigned to an

alternative school if he did not. The district suspended the student three times during the 2010-11

school year for fighting -- three days in November, two days in February, and five days in March.

On April 19, the student was suspended two days for another physical altercation. The district

transferred him to an alternative school for the balance of the school year. It did not conduct a

manifestation determination. The student's parent filed an OCR complaint asserting that the

district violated Section 504. The district responded that it bypassed the MD process because the

student breached his behavior contract. Moreover, it pointed out that Pennsylvania law allows a

district to suspend a student with a disability for up to 15 cumulative days before it is considered

a change of placement. However, OCR held that both the suspensions and transfers constituted a

significant change of placement and thus triggered an MD review, regardless of what the

behavior contract or state law provided.

What happens if the conduct is found NOT to be a manifestation of the student’s disability?

If the district determines that a child's misconduct was not related to his disability, then

the child is subject to the same sanctions for misconduct as a child without a disability.

However, the child must continue to receive education services, as discussed below.


When must the District conduct a Functional Behavior Analysis (FBA) and implement a

Behavior Intervention Plan (BIP)?

The Illinois regulations create a difference from the federal regulations as regards

when the IEP team must meet and conduct a functional behavioral analysis (FBA)

and review or create a behavioral intervention plan (BIP):

In addition, upon the occurrence of any act that may subject the student either to

expulsion from school or suspension resulting in more than ten cumulative days of

suspension during any one school year, the district shall be required to convene a

meeting of the IEP team to review the student's behavioral intervention plan or, if

a behavioral intervention plan has not yet been developed, to develop one.

23 Ill.Admin.Code 226.400.

Letter to Addressee, 112 LRP 23125 (OSEP, April 9, 2012). An FBA, which has the purpose

of determining whether a student is a child with a disability and/or the nature and extent

of the special education and related services he or she needs is no different than any other

evaluation for purposes of consent and prior written notice. See also Letter to Christiansen,

48 IDELR 161 (OSEP 2007) (“If an FBA is being conducted for the purpose of determining

whether the positive behavioral interventions and supports set out in the current IEP for a

particular child with a disability would be effective in enabling the child to make progress

toward the child's IEP goals/objectives, or to determine whether the behavioral

component of the child's IEP would need to be revised, we believe that the FBA would be

considered a reevaluation under Part B for which parental consent would be required

under 34 C.F.R. §300.300(c)”).

What services must the District provide a student during a disciplinary removal?

FFZ (“FAPE-free Zone”) - No services are necessary during the first ten (10)

cumulative days of removal.

“FAPE-Lite” - After a child with a disability has been removed from his or her

current placement..., school personnel, in consultation with at least one of the

child’s teachers, determine the extent to which services are needed, as provided in

§ 300.101(a), so as to enable the child to continue to participate in the general

education curriculum, although in another setting, and to progress toward

meeting the goals set out in the child’s IEP. 34 C.F.R. §300.530(d)(1).

(5) If the removal is a change of placement under §300.536, the child’s IEP Team

determines appropriate services under paragraph (d)(1) of this section. 34 C.F.R.

§300.530(d)(5).


But see:

Montgomery County Board of Education, 49 IDELR 119 (SEA Ala. 2007). Although

an Alabama district did not run afoul of the IDEA when it expelled a middle

schooler with a learning disability for one year, it violated the Act by providing

him with a “one size fits all” homebound program. A hearing officer ordered the

district to reconvene the student's IEP team and determine an appropriate

alternative placement. The IHO also awarded the student compensatory

education services.

McGraw Central School District, 49 IDELR 295 (SEA N.Y. 2007). Although a New York district met a student's educational needs by providing two hours of daily tutoring during his disciplinary removal, it did not meet the student's behavioral need. The hearing officer ordered the district to provide counseling services during the student's disciplinary removal.

Under what circumstances can the District move a student into an interim alternative

educational setting?

(g) Special circumstances. School personnel may remove a student to an interim alternative

educational setting for not more than 45 school days without regard to whether the

behavior is determined to be a manifestation of the child’s disability, if the child―

(1) Carries a weapon to or possesses a weapon at school, on school premises, or to

or at a school function under the jurisdiction of an SEA or an LEA;

(2) Knowingly possesses or uses illegal drugs, or sells or solicits the sale of a

controlled substance, while at school, on school premises, or at a school function

under the jurisdiction of an SEA or an LEA; or

(3) Has inflicted serious bodily injury upon another person while at school, on

school premises, or at a school function under the jurisdiction of an SEA or an

LEA.

§34 C.F.R. 300.530(g).


“Serious bodily injury” has the meaning given under 18 U.S.C. §1365(h)(3):

The term “serious bodily injury” means bodily injury which

involves – (A) a substantial risk of death; (B) extreme physical pain;

(C) protracted and obvious disfigurement; or (D) protracted loss or

impairment of the function of a bodily member, organ, or mental

faculty.

“Weapon” has the meaning given under 18 U.S.C. §930(g)(2):

A weapon, device, instrument, material, or substance, animate or

inanimate, that is used for, or is readily capable of, causing death or

serious bodily injury, except that such term does not include a

pocket knife with a blade of less and 2 ½ inches in length.

In re Scituate Public Schools, 47 IDELR 113 (SEA Mass. 2007). Concluding that a sixth grader with

Asperger syndrome, LD and ADHD did not “exercise control” over his principal’s necktie when

he grabbed the tie and pulled on it, an IHO determined that the student did not “carry or

possess” a weapon that would justify an automatic 45-day placement in an IAES. However, the

IHO upheld the district’s determination that the student’s conduct was not a manifestation of his

disabilities.

Anchorage School District, 45 IDELR 23 (SEA AK 2005). An 11-year-old student with Prader-Willi

syndrome was appropriately suspended by his district after he lunged at a teacher with a pair of

scissors, an IHO determined. The IHO, who bifurcated the hearing to decide the discipline action

first and then to hold a separate hearing on IEP issues, decided that the student's use of the

scissors constituted use of a weapon.

Anaheim Union High School District, 32 IDELR 129 (SEA CA 2000). Recognizing that a student

used a paper clip to cut another student's neck on the school bus, an ALJ nonetheless found that

the paperclip was not a "weapon" under the IDEA. The district did not show that the student

used the paper clip to cause death or serious bodily injury. Nor did the district show that the

paper clip was "readily capable" of inflicting such harm.

Alameda Unified School District, 32 IDELR 159 (SEA CA 2000). Because neither the district nor the

parent provided information about the size of the knife a high schooler carried to school, the IHO

could not determine whether it qualified as a weapon. The IHO indicated that the knife would

qualify as a weapon if the blade was 2 1/2 inches or longer.

Independent School District #831, 32 IDELR 163 (SEA MN 1999). The fact that a student used a

pencil to stab a classmate did not qualify it as a "weapon" under the U.S. Code or the IDEA. As

such, an ALJ found that a Minnesota district erred in removing the student to an IAES for 45

days based on a weapons offense.


Under what circumstances can a hearing officer remove a student to an interim alternative

educational setting?

Under 34 C.F.R. §300.532(b), a hearing officer, at an expedited hearing, may order a change in

the placement of a student with a disability to “an appropriate interim alternative educational

setting for not more than 45 school days if the hearing officer determines that maintaining the

current placement of such child is substantially likely to result in injury to the child or to

others.”

Who determines the interim alternative educational setting?

The child’s IEP Team determines the interim alternative educational setting for services under

§ 300.530(c), (d)(5), and (g).

34 C.F.R. §300.531.

What protections extend to students not yet identified eligible for special education and

related services?

(a) General. A child who has not been determined to be eligible for special education and

related services under this part and who has engaged in behavior that violated a code of

student conduct, may assert any of the protections provided for in this part if the public

agency had knowledge (as determined in accordance with paragraph (b) of this section) that

the child was a child with a disability before the behavior that precipitated the disciplinary

action occurred.

(b) Basis of knowledge. A public agency must be deemed to have knowledge that a child is a

child with a disability if before the behavior that precipitated the disciplinary action

occurred―

(1) The parent of the child expressed concern in writing to supervisory or

administrative personnel of the appropriate educational agency, or a teacher of the

child, that the child is in need of special education and related services;

(2) The parent of the child requested an evaluation of the child pursuant to §§ 300.300

through 300.311; or

(3) The teacher of the child, or other personnel of the LEA, expressed specific concerns

about a pattern of behavior demonstrated by the child directly to the director of

special education of the agency or to other supervisory personnel of the agency.

(c) Exception. A public agency would not be deemed to have knowledge under paragraph (b)

of this section if―

(1) The parent of the child―

(i) Has not allowed an evaluation of the child pursuant to §§ 300.300 through

300.311; or

(ii) Has refused services under this part; or

(2) The child has been evaluated in accordance with §§ 300.300 through 300.311 and

determined to not be a child with a disability under this part.

34 C.F.R. §300.534.


Jackson v. Northwest Local School District, 110 LRP 49939 (S.D. Ohio 2010). Although a third

grade student with ADHD had not yet been determined eligible for special education

services, her failure to respond to RTI services should have given her school district

reason to suspect that she was a child with a disability. The court ruled that the school

district violated the law by suspending and then expelling the student (for “threatening”

behavior) without first conducting a manifestation determination. The school district has

provided RTI services for two years, and her third grade teachers had expressed

increasing concerns about the student's escalating behavior and its impact on her

academic performance. The RTI team recommended that the student undergo a mental

health evaluation, but it did not initiate a special education evaluation at that time. The

court held that the school district was “deemed to have knowledge” that the student was

a child with a disability.

MORE THAN MINIMUM DUE PROCESS SAFEGUARDS - LONG-TERM SUSPENSIONS

The U.S. Supreme Court has ruled that a student is entitled to minimal due process before

being excluded from school for a period of 10 days or less, but it has recognized that

longer suspensions or expulsions for the remainder of the school term, or permanently,

may require more formal procedures. Goss v. Lopez, 103 LRP 22470 , 419 U.S. 565 (1975).

The minimal due process safeguards include:

1. Oral or written notice of the charges against the student; and

2. If the student denies the charges, an explanation of the evidence the authorities

have that supports the charges and an opportunity for the student to present his

side of the story.

The 7th Circuit reasoned that "expulsion does not require a more elaborate hearing in

order to comport with due process, so long as the student receives the fundamentally fair

procedures set out in Goss." Coronado v. Valleyview Public Sch. Dist. 365-U, 108 LRP 46290 ,

537 F.3d 791 (7th Cir. 2008). In the wake of Goss, courts have formed a general consensus

that, whatever the particulars of due process an expulsion may include, the student

always has an entitlement to three things:

1. Advance notice of the charges.

2. A fair opportunity to be heard.

3. An impartial decision-maker.

But remember:

“Fundamental concepts of a fair hearing include ‘the opportunity to be heard, the right to cross-

examine adverse witnesses and to impartiality in rulings upon evidence.’ …Evaluation of the

three Eldridge factors, therefore, compels the conclusion that the expansive use of accusatory

hearsay, as was done in the instant case, is inconsistent with and violative of due process.”

Colquitt v. Rich Tp. High School Dist. No. 227, 298 Ill.App.3d 856, 699 N.E.2d 1109, 232 Ill.Dec. 924

(1st Dist. 1998).


BEHAVIOR INTERVENTION PLANS: WHAT THE RESEARCH SAYS

The following is summarized from:

“Behavioral Intervention Plans: Pedagogical and Legal Analysis of Issues.” Susan

Etscheidt, Department of Special Education, University of Northern Iowa. Behavioral

Disorders, 31(2), 223-243. (2006).

Professor Etscheidt reviewed over 800 due process, district court and appellate court decisions

that were decided between 1997 and 2005 and contained the term “BIP” or “behavior

intervention plan.” She found 52 published decisions in which the adequacy of the Positive

Behavior Intervention Plan was the central issue. Etscheidt's research concluded with finding

five themes regarding disciplinary and behavioral issues in special education:

1. A Positive Behavior Intervention Plan must be developed when a

student's behavior interferes with learning. In 16 out of 17 cases where the

school district did not create a positive BIP, the parents prevailed. Common issues

that arose:

- School districts too often attempted to substitute “informal” BIPs, social

skills programs or student contracts for a fully-developed positive BIP.

- School districts were confused about when to develop a BIP, oftentimes

believing that the requirement only existed when a student was suspended

or removed for 10 days or more (even when there were frequent

disciplinary actions).

- School districts too often attempted to move students to more restrictive

placements rather than developing positive BIPs that would be sufficient

to meet the student's needs in a less restrictive setting.

2. A Positive Behavior Intervention Plan must be based on recent and

meaningful assessment data. In most cases, school districts were not successful

in defending observations or the development of a BIP without the use of a

Functional Behavioral Assessment (FBA).

Note: With regard to conducting behavioral assessments, the ED notes

that 34 C.F.R. §300.304(c)(4) "requires the public agency to ensure that the

child is assessed in all areas related to the suspected disability. This could

include, if appropriate, health, vision, hearing, social and emotional status,

general intelligence, academic performance, communicative status, and

motor abilities. This is not an exhaustive list of areas that must be assessed.

Decisions regarding the areas to be assessed are determined by the

suspected needs of the child. If a child's behavior or physical status is of

concern, evaluations addressing these areas must be conducted." 71 Fed. Reg.

46643 (2006). [Emphasis added].


3. A Positive Behavior Intervention Plan must be individualized to meet

the student's unique needs. School districts were not successful in arguing cases

where they had substituted a classroom-wide behavior management system,

group sessions, or a restrictive program when addressing a student's problem

behaviors. Problems also arise when there is not a clear link between the BIP and

the assessment data.

4. A Positive Behavior Intervention Plan must include positive behavior

strategies and supports. Districts were successful in responding to parent

complaints when the positive BIPs contained a variety of individualized, positive

and student-focused strategies:

- Strategies specifically mentioned in successful cases (for the school

district) included: environmental alterations, alternative skill instruction,

cooling-off periods, curricular modifications, frequent contact with

parents, and frequent contact with professionals working with the student

outside of school.

- Plans that included punishment and discipline, shorter school days,

excessive use of time-out or isolation as primary interventions were seen as

contributing to students' lack of academic progress and negative self-

image.

- School districts that used punishments, manipulations of the students'

school day by requiring parents to take the student home, adult escorts in

the school building, or the use of restraints instead of a BIP focused on

positive strategies did not prevail in hearings. (However, school districts

that used a basket hold or similar therapeutic restraint in crisis situations

only were supported in the decisions.)

- Interestingly enough, school districts were not successful when they

substituted IEP goals and objectives for positive behavior strategies.

5. A Positive Behavior Intervention Plan must be implemented as planned

and effects must be monitored. Parents were successful in those cases where a

BIP was simply not implemented at all, when the BIP was clearly inadequate and

the student's behavior triggered more serious consequences, when staff was not

trained to implement the plan, and when the plan was not updated by the IEP

team when needed.


According to research and a review of case law cited in the book RTI and Behavior: A Guide to

Integrating Behavioral and Academic Supports, Sprague, Cook, Wright & Sadler, LRP Publications

(2008), IEP team members must consider the following when creating a behavior intervention

plan:

1. The function of the behavior (what need the behavior fulfills)

2. The context/environment the behavior is related to (why it occurs, where it

occurs, and when it occurs)

3. Removing the student’s need for the problem behavior and teaching an

acceptable functionally equivalent behavior

4. Reinforcing the new behavior so it can be maintained long term

5. Strategies for school personnel to handle the problem behavior if it occurs

again

6. Communication plans for necessary individuals (implementers, parents,

etc.) – including data collection and teaming

“Schools that use office referrals, out-of-school suspension, and expulsion – without a

comprehensive system that teaches positive and expected behaviors and rewards the same – are

shown to actually have higher rates of problem behavior and academic failure.” RTI and Behavior

at 1.

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