Courtney Bhatt Bellevue Breach of Contract AttorneyTarah, a fourth grade student with a specific learning disability, was suspended for six days for bullying and kicking another student. Earlier that year, she was suspended for three days for pulling another girl’s hair in the school playground. The following week, she was suspended for two days for bullying another student.

John, an eighth grader with a learning disability and ADHD, brought a makeshift marijuana pipe to school. John’s math teacher found the pipe under his desk, whereupon the principal expelled John.

Were Tarah and John treated appropriately under the Individuals with Disabilities Education and Improvement Act (IDEA)?

 

Manifestation Determination Meetings and Protections Afforded Under the IDEA for School Discipline

The Individuals with Disabilities Education Improvement Act provides significant procedural protections to students with disabilities and their parents regarding school discipline. One such protection involves what is known as a Manifestation Determination (“MD”) meeting.

MD meetings follow school disciplinary actions resulting in involving a suspension of more than 10 days, expulsion, or a placement change (such as a move of the student to another school or program). Administrators responsible for the student’s Individualized Educational Plan (IEP) must meet to determine whether the student’s misconduct was a “manifestation” of the student’s underlying disability. Such meeting is referred to as a “manifest determination” (MD) meeting.

Under the IDEA, the MD Meeting is to be conducted by “the local educational agency, the parent, and relevant members of the IEP team (as determined by the parent and the local educational agency.)” Under 34 CFR 300.523(a)(2), the MD meeting must be held within ten (10) school days of any decision to change the placement of the student (in John’s case, expulsion). MD meetings involve a review of the student’s misconduct, the student’s disability, and the services provided.

 

Determining Whether the Student’s Behavior Was a Result of the Student’s Disability

The primary purpose of the MD meeting is to determine if (1) The behavior was a manifestation of the child’s disability and (2) in relationship to the behavior subject to disciplinary action, the child’s IEP and placement were appropriate.

 

If the answer to either of these questions is “yes,” then the IEP team must either:

 

(1) conduct a functional behavioral assessment (FBA) (unless the local education agency (LEA) previously conducted an FBA that resulted in the change of placement that occurred), and implement a behavioral intervention plan (BIP) for the child; or

 

(2) if a BIP was previously developed, review the BIP and modify it, as necessary, to address the behavior; and return the child to the placement from which the child was removed (unless the parent and the LEA agree to a change of placement as part of the modification of the BIP).

 

If the answers to both of the questions above are “no,” then the student may be disciplined in the same manner as a student without a disability who has violated the same or similar code of conduct.

 

What Happens if the Parent’s Disagree with the Decision made at the Manifestation Determination Meeting?

If the student’s parents disagree with the manifest determination meeting decision, a due process hearing can be requested. At this hearing if to the questions noted above are both found to be “no,” the student can be expelled from the school system, and educational services will be terminated after such an expulsion. After expulsion, a student may not attend classes, school functions, or be on school property. In John’s case, he will not be allowed to attend classes, a graduation ceremony for his best friend, or basketball games.

What About Suspensions? How are they treated under IDEA?

What if the student was not expelled? What if, like Tarah, a student receives three (3) separate suspension, totaling 11 days?

In Tarah’s case, she may be entitled to a Manifestation Determination meeting. The series of suspensions described above may indicate a “change of placement” has occurred. A “change of placement” is defined at 34 CFR 300.536:

  • 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—
  • The removal is for more than 10 consecutive days; or
  • The child has been subjected to a series of removals that constitute a pattern—
  • because the series of removals totals more than 10 school days in a school year;
  • because the child’s behavior is substantially similar to the child’s behavior in previous incidents that resulted in the series of removals; and
  • 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.

(b)(1) The public agency determines on a case-by-case basis whether a pattern of removals constitutes a change of placement

(2) this determination is subject to review through due process and judicial proceedings.

For an example, consider the case of : Marshall Indep. Sch. Dist. #413, 107 LRP 28130 (SEA MN 2007). Here, the student was a seventh grader with ADHD and Tourette syndrome. He was removed nine times in the school year, for a total of 17 days:

5 full school days and 2 half days for “inappropriate behavior or language to staff members” and 8 full days and a class period for “physical altercations.”

The Court found that the student was repeatedly denied the right to attend his general education classes due to the disciplinary removals, even though the Student had minimal disciplinary problems in the classroom setting. The provision of homework assignments and time to work on the assignments in either the EBD (emotional behavior disorder) classroom or in the ISS room did not make up for missing out on participating in the general education setting with his nondisabled peers. As a result of the District’s repeated removals (and the equivalent of 17 days missed in the general education setting) the court found that a change of placement had occurred.

If your child has been expelled, or has been repeatedly removed from her classroom this year, please do not hesitate to seek assistance from an attorney or educational legal advocate.

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