Manifestation Determinations in School Discipline

Student disabilities often contribute to academic deficiencies and social behaviors that school disciplinary officials can mistake as deliberately wrong and sanctionable misconduct. School officials can mistakenly and unlawfully blame the student for disability-caused behaviors, without recognizing the disability's role and accommodating the disability. This inappropriate and unlawful blaming for disability happens more often in elementary and secondary schools, where discipline tends to be less formal and structured. High schools often don't follow formal disciplinary procedures in the way that college, university, and graduate programs would follow procedures. High school disciplinary officials are especially prone to imposing temporary discipline, such as removal from classes and short-term suspensions, without careful review of the student's circumstances. Yet those swift and sure disciplinary actions can violate the disabled student's rights. Indeed, federal disability laws and regulations generally require formal manifestation determination review whenever a student with a recognized disability faces discipline. Retain national school defense attorney Joseph D. Lento and the Lento Law Firm's student defense team if your high school student with a disability has suffered school discipline without a manifestation review and deserves relief from that sanction. Stand up for your student's rights, reputation, and future. 

The Concept of Manifestation Determination Review 

Manifestation determination review is a perfect solution for a pressing problem. Disability experts know well the role that disabilities can play in academic performance and social behaviors implicating student codes and academic standards. The student with a disability can have academic and behavioral issues that look like ordinary student misconduct but are instead the disability's manifestation. Disabilities manifest themselves in student conduct and academic issues. School disciplinary officials should also know the role disabilities play in student academic deficiencies and misconduct. But disciplinary officials nonetheless overlook that connection so often and with such harmful consequences for the disabled student that Congress, in its federal disability laws mandated manifestation determination review for many cases involving discipline of a disabled student. A manifestation determination review forces school disciplinary officials to consider and accommodate the student's disability before imposing any discipline. As a legal and procedural requirement, manifestation determination review is a practical solution to a pressing problem. 

Disability Law Requiring Manifestation Determination 

The federal Individuals with Disabilities Education Act (IDEA) is the law requiring manifestation determination review in many elementary and secondary discipline cases. Congress first enacted the predecessor to the Individuals with Disabilities Education Act in 1975. The initial act did not mandate manifestation determination reviews. Congress has since then amended IDEA frequently. Amendments in 1997 first added the requirement for manifestation determination reviews. School officials have thus long owed the obligation for those reviews in many cases. Manifestation determination reviews are nothing new. School officials cannot legitimately claim ignorance. Initially, manifestation determination reviews involved a relatively complex process that applied broadly to even potentially minor discipline. But recognizing the undue burden it had imposed on school officials, Congress in 2004 amended IDEA again to simplify the review process and limit the discipline for which school officials must first conduct a manifestation determination review. Manifestation determination reviews are still a significant and substantial right, just not as prevalent and exhaustive as they once were. The Department of Education has, in response to comments on its implementation of IDEA regulations, confirmed, “We believe the Act recognizes that a child with a disability may display disruptive behaviors characteristic of the child's disability and the child should not be punished for behaviors that are a result of the child's disability.” 71 Fed. Reg. 46720. Manifestation determination review is a sound and secure law that your student's high school official should be following. 

When Law Requires a Manifestation Determination Review 

Your high school student won't get a manifestation determination review for every potential discipline. Indeed, your high school student may suffer minor discipline, even discipline that unfairly fails to account for your student's disability, without any requirement that the school review the contributing role of your student's disability. Federal disability law generally requires a manifestation determination only when the school proposes to (1) remove your student from the school for ten or more consecutive school days or (2) change your student's IDEA placement. Either condition will trigger the manifestation determination review requirement. Your student's high school must generally complete a manifestation determination review to remove your student for ten consecutive days or to change your student's placement. Consult national school defense attorney Joseph D. Lento if you have questions over whether your student's high school owed your student a manifestation determination review. 

Ten Day Removal Requiring Manifestation Determination 

The ten-day-removal condition for manifestation determination reviews is straightforward, easily understood and measured. School disciplinary officials will often temporarily remove a student who engages in suspected misconduct, for the school day and a few days to follow. Temporary or short-term removal can give school officials time to investigate the matter without leaving students at risk of harm from the student suspected of misconduct. The removed student's own safety, the security of school property, and the efficient operation of school programs are other considerations warranting temporary or short-term removal without manifestation determination review. When amending the Individuals with Disabilities Education Act in 2004 to condition manifestation determinations on at least a ten-day removal, Congress gave school officials the latitude to remove first and investigate later, or to remove for a short period without further investigation of the role, if any, of the student's disability in causing or contributing to the misconduct. But if school officials propose to remove your student for ten or more consecutive school days, amounting to two full weeks of school participation, school officials owe you and your student a manifestation determination review. 

Changes in Placement Requiring Manifestation Determination 

The change-in-placement condition for manifestation determination reviews can be less clear than the ten-day-removal condition. The change-in-placement condition needs some explanation. The Individuals with Disabilities Education Act requires public schools through high school to provide a free appropriate public education to students with qualifying disabilities. The Act requires schools to identify and evaluate students with disabilities so as to place them in the least restrictive educational environment among student peers, while providing appropriate special education services. The Act generally requires schools to adopt, implement, and maintain an individualized education plan (IEP) for each disabled student describing the placement and special education services. Thus, when school disciplinary officials propose to impose discipline that changes the placement that the disabled student's IEP describes, they trigger IDEA's manifestation determination review requirement. Disciplinary officials would not, for instance, get to remove a disabled student from a classroom placement and into a special-education room, or move the student from a special-education room placement into isolation, without a manifestation determination review. 

Manifestation Determination Review Procedure 

The procedures that a manifestation determination review follows can be just as important to your student's outcome as to whether your student has the legal right to such a review. You should be aware of those procedures and deploy them strategically for your student's best disciplinary outcome. For the best outcome, retain national school defense attorney Joseph D. Lento to guide and assist you through manifestation determination review procedures. Consider the following procedures, each potentially critical to your student's successful outcome. 

The Timing of Manifestation Determination Review 

When IDEA requires a manifestation determination review, school disciplinary officials must conduct the review within ten school days of any decision to change your student's placement as discipline. IDEA's Section 300.530(e)(1) imposes the ten-day time within which school officials must act. The ten-day period works well with the ten-day-removal trigger for manifestation determination reviews. Within ten days of the student's change in placement, school officials may decide to restore the student's placement rather than commence a manifestation determination review. 

Who Attends the Manifestation Determination Review 

Under IDEA's Section 300.530(e), the local educational agency (LEA) representative, disabled student's parents, and “relevant members of the child's IEP team” attend the manifestation determination review. You will get to attend and participate if you so desire, which you generally should. You and the LEA determine who are the relevant IEP team members who should also attend. You, the disabled student's parent, will generally know which of the IEP team members, whether specific teachers, school counselors, school leaders, or others, would appropriately advocate in the manifestation determination review for your student's accommodation.  

What the Manifestation Determination Review Decides 

Under IDEA's Section 300.530(e), you, as the disabled student's parent, together with the local educational agency (LEA) representative and relevant members of the IEP team, decide two issues. The manifestation determination review must determine: “(i) If the conduct in question was caused by, or had a direct and substantial relationship to, the child's disability; or (ii) If the conduct in question was the direct result of the LEA's failure to implement the IEP.” You can see how significant the first question is, whether your student's disability played a role in the alleged misconduct. That question is the essential manifestation question. But you should also see how the second question, whether the alleged misconduct happened because the school failed to accommodate your student's disability in the manner your student's IEP required, can also be critical to the overall discipline issue. A yes answer to either question means your student may well have relief from any proposed discipline. A no answer generally means your student's disability rights will not improve your student's discipline outcome. 

Relevant Evidence at the Manifestation Determination Review 

Your student's manifestation determination review should provide you with ample opportunity to present exonerating and mitigating evidence and other evidence of the role of your student's disability in the alleged misconduct. IDEA's Section 300.530(e) requires that those attending your student's manifestation determination review “must review all relevant information in the student's file, including the child's IEP, any teacher observations, and any relevant information provided by the parents….” In comments supporting its IDEA regulations, the Department of Education indicated that reviews may also consider “placement appropriateness, supplementary aids and services, and if the behavior intervention strategies were appropriate and consistent with the IEP.” 71 Fed. Reg. 46719. School officials should provide your student's file and IEP for any helpful information in those files. But you should ensure that teachers with helpful observations of your student's disability and its role in the alleged misconduct also attend the manifestation determination review to share those observations or record those observations in writing for you to use at the review. You may also want or need to provide medical diagnoses, treatment records, counseling records, academic work, student statements, and other evidence helpful to your student for avoiding discipline while gaining the accommodations your student's disability warrants. Evidence makes or breaks review outcomes. Be sure to consider carefully the evidence you want and need for your student's best outcome. Retain national student defense attorney Joseph D. Lento to assist you in preparing for the manifestation determination review. Don't let your disabled student suffer dismissal and its long-term impacts, when a fair manifestation determination review should have resulted in disability accommodation. 

Manifestation Determination Review Outcomes 

In appropriate cases, manifestation determination reviews should have meaningful outcomes. They shouldn't be simply for the sake of going through the motions. School officials participating in the manifestation determination review with genuine concern for your student's welfare may, with your participation, advocacy, and agreement, decide that the school needs to take prompt corrective action to accommodate your student's disability and implement your student's individualized education plan. Consider the following favorable outcomes, each mandated by the relevant statutes and regulations. 

Manifestation of Disability 

If the manifestation determination review results in a finding that the alleged misconduct was a manifestation of your student's disability, then the school must take specific corrective actions. Under IDEA's Section 300.530(f), the school must generally “conduct a functional behavioral assessment … and implement a behavioral intervention plan for the child; or [i]f a behavioral intervention plan already has been developed, review the behavioral intervention plan, and modify it, as necessary, to address the behavior….” These actions should get your student the special education services your student needs to avoid future misconduct. These actions should also result in the dismissal of the disciplinary charges. Under IDEA's Section 300.530(f), the school must also “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 behavioral intervention plan.” Your student should be able to get right back on track as a favorable outcome of the manifestation determination review. That's how it's supposed to work. 

Failure to Implement IEP 

If, on the other hand, the manifestation determination review results in a finding that the alleged misconduct was due to the school's failure to implement the student's IEP, then the school must take immediate steps to remedy the deficiency and implement the IEP's placement and special education services. The Department of Education's comments onto its IEP regulations state that the school's local educational agency representation “has an affirmative obligation to take immediate steps to ensure that all services set forth in the child's IEP are provided, consistent with the child's needs as identified in the IEP.” 71 Fed. Reg. 46721. Often, when a disabled student doesn't get the placement and special education services the student's IEP mandates, the student will exhibit nonconforming behavior. After all, the IEP mandates placements and services necessary for the student's least restrictive education. Presumably, without those IEP placements and services, the student will not be able to participate as the law requires and the school's disability officials planned in the IEP and intended. The wrong placement and the wrong services may well lead to disrupted education and disruptive behaviors. The best possible outcome of a manifestation determination review would be that the school would acknowledge that it hadn't done as the IEP mandated and that it will promptly correct that failure so that your student can persist with a free appropriate public education. The school should then dismiss the disciplinary charges, having taken due responsibility for implementing IEP measures. 

What's at Stake In Manifestation Determination Review