School Discipline - How to Protect Your Special Needs Child

Defending Expulsions: The Special Education Setting

Special education has a unique history with respect to disciplinary proceedings. Historically, schools were twice as likely to suspend a special needs student because of behavioral problems, and often used expulsion as a means to exclude disabled children from school. Congress recognized the problem and sought to strip the schools of unilateral authority to deny disabled students an education.

Congress created the Manifestation Determination Hearing, a meeting that must occur before a special education student can be expelled.

The Manifestation Determination Meeting.

The purpose of a manifestation determination meeting is to consider whether the child’s behavior was a manifestation of his disability. If the behavior was a manifestation of the child's disability, then the school cannot expel the child under general education discipline rules. However, if the behavior was not a manifestation of the child's disability, the district can expel the disabled student, and continue the expulsion process.

The manifestation determination meeting is like an IEP meeting. The parent and relevant members of the IEP team conduct a review of the child’s records to determine if the conduct was (1) caused by, or had a direct and substantial relation to, the child’s disability, or (2) was the direct result of the school district’s failure to implement the IEP. If either of these questions is answered affirmatively, then the behavior is deemed to be a manifestation of the child’s disability, and the school district cannot expel the child.

If the conduct has a causal relationship, the IEP team must consider conducting a Functional Behavior Assessment or review and modify the Behavior Intervention Plan (“BIP”). If the conduct was a result of a failure to implement the child’s IEP, the district “must take immediate steps to remedy [the] deficiencies.” A favorable Manifestation Determination means the child must be returned to the current placement unless the behavior involved special circumstances (such as weapons, drugs, or serious bodily injury) or unless the parent and the district agree to change the child’s placement.

In contrast, if the answer is “no” to both questions, then the child is subject to general education discipline proceedings, and can be expelled at an expulsion hearing. Even if the special education student is expelled, he is entitled to an education that allows him to continue to progress towards his IEP goals and related behavioral needs.

Preparation for the Manifestation Determination Meeting

In order to fully prepare for the Manifestation Determination Meeting, make sure you have a thorough understanding of your child’s disability. Read through all of your child’s evaluation reports to determine whether your child’s behavior has been a documented concern in the past. You may also consider obtaining a professional independent psychological evaluation to determine whether your child’s has an unrecognized disability that you suspected existed, but was never uncovered by the IEP team. In addition, always record the Manifestation Determination meeting. Under California law, you should give at least 24 hour notice of your intent to record the meeting.

Challenging the Manifestation Determination Hearing

Sometimes, discipline decisions are made by administrators who ignore special education protections and requirements. This can translate into a sloppy Manifestation Determination meeting, where the IEP team “glosses over” your child disability, and how your child's disability may have impacted his behavior.

Consider whether the team conducted a thorough review of your child’s records in relation to his disability. For example, your child might be eligible for an IEP under the disability category of learning disability. But your child might also have ADHD. If the school has clearly documented your child's ADHD, but the team never discussed your child's ADHD in relation to the disciplinary act, you may have a strong argument that the team did not consider all relevant information in making its determination. As another example, if the school failed to provide the counseling services on your child's IEP, you will have an argument that the act was a direct cause of the school’s failure to provide the counseling services called for on the IEP.

When a parent disagrees with the manifestation determination hearing, she should consider contacting an attorney who is familiar with such proceedings. The parent (or attorney) may request an “expedited hearing," or a hearing that is decided quicker than the typical due process matter. During the dispute, the child “stays put” in the current placement or in an interim alternative education setting.

Protecting Against an Unfavorable Manifestation Determination

The best approach to defend against an unfavorable Manifestation Determination meeting is planning ahead. If your child exhibits serious behavior problems, ask the district to provide a Functional Analysis Assessment which is designed to find out the cause(s) of your child's behavior problems. The district may also be required to create a Behavior Intervention Plan ("BIP"), designed to address problem behaviors. If your child can benefit from behavior modifications, they should be included in the IEP. Also, make sure the IEP team creates IEP goals that address your child's behavior problems.

Remember: Discipline is reactive, but planning ahead is proactive! Be creative with your child's IEP. Consider helpful services such as anger management, counseling, or behavioral supports. Finally, if you believe your child’s current placement creates a greater risk of problem behaviors, take steps to change your child's placement. At the very least, inform the school of your concerns and document them in the IEP.