Special Education Discipline –
Manifestation Determinations
October 2016
Presented by:
Marcy Gutierrez
Tonight’s Agenda
• Review Paper Topics for Paper #2
• Start With What You Know
• Discuss Discipline & Manifestation Determinations
• Rialto & New Haven Cases
• Next Week
– Section 504
– Residential Placement
– Transgender Legal Issues
Research Paper #2 – Choose One Topic
• 1,000 Words – Due 11/09/16
• PROMPTS: From your review of available literature, with specific
emphasis on relevant statutory and case law, please discuss
what a school psychologist should consider, and what a school
psychologist should do, when:
– Deciding what areas to assess a child for special education?
– Deciding whether or not a student’s misconduct is a manifestation
of his/her disability?
– Deciding whether or not to recommend that the IEP team find a
child for eligible for special education
3
Deciding whether or not a student’s misconduct is a
manifestation of his/her disability?
• Just because juvenile justice authorities decline to prosecute a
student with a disability for misconduct on school grounds
doesn't mean that the district is bound by that decision. If the
conduct is unrelated to the student's disability, the district may
impose the same sanction that it would apply to nondisabled
students for the same offense. See, e.g., C.C. v. Hurst-EulessBedford Indep. Sch. Dist., 65 IDELR 195 (N.D. Tex. 2015)
(holding that the district did not violate the IDEA when it placed a
middle schooler with ADHD and SLD in an IAES for 60 days after
he photographed a schoolmate on the toilet).
• The parents of a teenager who smoked marijuana on a daily
basis throughout seventh and eighth grade could not convince a
District Court that their son's anger, anxiety, and poor academic
performance was the result of emotional disturbance. The court
upheld an SRO's determination that the student was ineligible for
4
IDEA services. P.C. and M.C. v. Oceanside Union Free Sch. Dist.,
Deciding whether or not to recommend that the IEP
team find a child for eligible for special education?
• If a student qualifies as a child with a disability, a district cannot
refuse to find the student eligible for IDEA services on the
grounds that his disabilities are too severe. See Timothy W. v.
Rochester, N.H., Sch. Dist., 441 IDELR 393 (1st Cir. 1989)
• A student needs special education and related services when the
student requires those services in order to receive an
educational benefit from the educational program. Marshall Joint
Sch. Dist. No. 2 v. C.D., 54 IDELR 307 (7th Cir. 2010).
• Eligibility decisions should consider whether a student's
educational improvements resulted from the student receiving
specialized instruction. See, e.g., L.J. v. Pittsburg Unified Sch.
Dist., 116 LRP 37786 (9th Cir. 09/01/16) (noting that a grade
schooler with SLD, OHI, and ED made educational progress only
because of the specialized services he received, the 9th Circuit
Court held that the district erred in finding the child ineligible). 5
DISCIPLINE
School Discipline
• Suspension &
Expulsion
• Interim Alternative
Educational
Settings
• Manifestation
Determinations
• Honig Injunctions
7
Suspensions & Expulsions
Jurisdiction to Suspend or Expel a Student:
• Under Education Code section 48900, et. seq.,
principal/superintendent may suspend or recommend
expulsion, and the governing board may expel, for acts of
student misconduct that are related to a school activity
or school attendance that occur:
– While on any school grounds in California;
– While going to or coming from school;
– During the lunch period whether on or off school
campus; or
– During, or while going to or coming from, a school
sponsored activity.
8
Suspensions & Expulsions
Grounds for Suspension & Expulsion
•
•
•
•
•
•
•
•
Obscenity & Profanity (§ 48900, subd. (i))
Drug Paraphenalia (§ 48900, subd. (j))
Disruption/Defiance (§ 48900, subd. (k))
Receiving Stolen Property (§ 48900, subd. (l))
Imitation Firearm (§ 48900, subd. (m))
Sexual Assault/Battery (§ 48900, subd. (n))
Harassment of Witness (§ 48900, subd. (o))
Sale of Soma (§ 48900, subd. (p))
9
Suspensions & Expulsions
Grounds for Suspension & Expulsion (continued)
• Hazing (§ 48900, subd. (q))
• Bullying (§ 48900, subd. (r))
• Aiding or Abetting Infliction of Physical Injury
(§ 48900, subd. (t))
• Sexual Harassment (§ 48900.2)
• Hate Crimes (§ 48900.3)
• Harassment of Other Students or District Staff
(§ 48900.4)
• Terrorist Threats (§ 48900.7)
10
Suspensions & Expulsions
Grounds for Suspension & Expulsion
• 3 Categories:
– 1. Recommendation / Mandatory Expulsion
– 2. Recommendation / Discretionary Expulsion
– 3. Discretionary Recommendation / Discretionary
Expulsion
11
Suspensions & Expulsions
Mandatory Recommendation / Mandatory Expulsion
• Under § 48915, subdivision (c), the principal or
superintendent shall immediately suspend and recommend
expulsion, and the Governing Board shall expel, for any of
the following acts committed at school or at a school activity
off school grounds:
– Possessing, selling, or furnishing a firearm;
– Brandishing a knife at another person;
– Sale of drugs;
– Committing or attempting to commit a sexual assault or
committing sexual battery; or
– Possession of an explosive.
12
Suspensions & Expulsions
Time Limits on Suspension from School
• No more than 5 consecutive days;
• Cannot exceed 20 school days in a school year; or
• 30 school days if the student has, for purposes of
adjustment, enrolled or transferred to another
regular school or class, an opportunity school or
class, or a continuation education school or class.
• Expulsion hearing within 30 days.
13
Special Education Discipline
• Special education student discipline protections
apply whenever:
– (1) The District seeks to make a disciplinary
change in a special education student’s
placement; or
– (2) The District had “knowledge” that the
student was a child with a disability.
14
Knowledge that the Student has a Disability
• “Knowledge” of a student’s disability occurs when:
– The parent expressed concern in writing to a teacher, or
supervisory or administrative personnel of the District,
that the student needs special education;
– The parent requested a special education assessment
of the student; or
– The child’s teacher/District personnel express to the
special education director/District advisory personnel
specific concerns about a pattern of behavior
demonstrated by the student.
15
Knowledge that the Student has a Disability
• “Knowledge” does not exist when:
– The parent has refused to allow the District to
assess the student;
– The parent refused special education services; or
– The District assessed the student and found that
the student did not qualify for special education
16
Knowledge that the Student has a Disability
• If there is a basis of knowledge that a student being
suspended or expelled has a disability, the District must
hold a “manifestation determination” within 10 school
days of a decision to make a disciplinary change in
placement.
17
Student Discipline and Special Education
Changes in
Placement
18
Change of Placement
• A change of placement occurs if:
– More than 10 consecutive school days; or
– More than 10 cumulative days of short-term
removals and constitute a pattern.
19
Change of Placement
• Removals constitute a pattern when:
– Removals total more than 10 school days in a
school year;
– Behavior is substantially similar to the child’s
behavior in previous incidents that resulted in
the series of removals; and
– Additional factors such as the length of time of
the removal, the total amount of time of the
removal, and the proximity of the removals to
each other.
20
Change of Placement: Interim Alternative
Educational Settings
• A student may be moved to an IAES for up to 45 school
days if the student does any of the following at school or at
a school function:
– Possesses a weapon;
– Possesses or uses illegal drugs, or sells or solicits the
sale of a controlled substance; or
– Has inflicted serious bodily injury upon another person
while at school, on school grounds or at a school
function.
Query: How to do this?
21
Serious Bodily Injury
• The IDEA adopts the definition of "serious bodily injury " set forth
at 18 USC 1365 (h)(3). 34 CFR 300.530 (h)(i)(3).
• That provision defines SBI as bodily injury which involves:
– substantial risk of death;
– extreme physical pain;
– protracted and obvious disfigurement; or protracted loss or
impairment of the function of a bodily member, organ, or mental
faculty. 71 Fed. Reg. 46,722 (2006).
22
SBI
• Pocono Mountain Sch. Dist. (2008), 109 LRP 26432 (finding that
although the student's behavior was injurious, frightening, and
intimidating, "a broken nose does not fit within the [IDEA's] narrow
definition of the infliction of SBI).
• re: Student with a Disability (2010), 54 IDELR 139 (holding that while a
paraprofessional suffered discomfort, disorientation, and pain that she
rated at "seven" on a scale of one to 10 after being hit by a student, she
was given no pain medication at the hospital and was back to normal
the next day, and thus she did not suffer extreme pain within the
meaning of the statutory definition of SBI)
• Westminster Sch. Dist (2011), 56 IDELR 85 (a teacher's medical
treatment, the fact that two drugs failed to provide pain relief,
and her own characterization of her pain as the worst of her life
showed that she suffered a
23
Change of Placement
•
•
•
•
Bus suspensions
On-campus suspensions
Suspensions for less than one full school day
Being “sent home early”
24
Change of Placement: Bus Suspensions
• If transportation is included
in the student’s IEP, a bus
suspension must be treated
as a “removal.”
• Such removal constitutes a
change in placement if it is
for more than 10
consecutive school days,
which requires a
Manifestation
Determination (“MD”)
(OSEP Letter to Sarzynski, 112 LRP 35343, June 21, 2012)
25
Change of Placement: On-Campus Suspensions
• On-campus suspensions count as days towards suspension
unless:
– The student continues to receive the services specified
in his IEP;
– The student is able to appropriately participate in the
general curriculum; and
– The student is able to participate with nondisabled
children to the same degree he could before
suspension.
(Parent v. Cloverdale Unified School District (2010) OAH Case No. 2010081062)
26
Day 11 Services
• On Day 11 of suspension, or if the student is being
recommended for expulsion, the District has additional
requirements:
– 1. Day 11 services AND
– 2. MD Meeting
• a “Manifestation Determination” within 10 school
days of a decision to make a disciplinary change in
placement.
• District must notify parents and provide procedural
safeguards
27
Manifestation Determinations
• The MD Review must include at least one parent/guardian
and relevant members of the student’s IEP team.
– It is best to have the whole IEP team present.
• Review all relevant information in the student’s file,
including the IEP, teach observations, and any other
relevant information.
28
Manifestation Determinations
• The IEP team will determine whether the student’s
behavior that led to the discipline was:
– Caused by, or had a direct and substantial relationship
to, the child’s disability; or
– The direct result of the Director’s failure to implement
the student’s IEP.
29
Manifestation Determinations
• If the answer to both questions is “no”:
– The District can discipline the student in the same manner as
general education students.
– The District may need to conduct behavioral assessment or offer
behavioral interventions.
• If the answer to either question is “yes”:
– Student cannot be further disciplined.
– Return the student to the placement from which they were
removed, unless placement is changed through IEP process or
student is placed in IAES.
– Must conduct behavioral assessment and develop behavioral
intervention plan, unless the student already has one.
– If IEP was not properly implemented, must take immediate steps
to remedy this.
30
Manifestation Determination IEP
• At each subsequent suspension past 10 days, the team
MUST conduct a MD, even for the same offense.
• A school site may NOT exceed 20 days of suspension for a
special education student.
31
Section 504 Discipline
• MD meeting must be held to determine if the student’s
behavior was a manifestation of their documented
disability.
• A 504 student is not entitled to services on Day 11 of
suspension.
32
Change of Placement: Interim Alternative
Educational Settings
Honig v. Doe
• Honig is the touchstone Supreme Court case regarding the
IDEA’s “stay put” provisions.
• Judicial relief to remove “dangerous” student from school
is an exception to stay put.
33
Take Aways
• Communication between GEN and SPED
• Follow Timelines
• Conduct Proper MD
34
Case Examples
35
Questions
36
PLEASE NOTE
These materials are for instructional purposes only.
This information is not intended as legal advice.
If you need a legal opinion on this subject matter, contact
Lozano Smith at www.lozanosmith.com.
37
Additional Note
All rights reserved. No portion of this work may be copied,
or sold or used for any commercial advantage or private
gain, nor any derivative work prepared therefrom, without
the express prior written permission of Lozano Smith
through its Managing Shareholder. The Managing
Shareholder of Lozano Smith hereby grants permission to
any client of Lozano Smith to whom Lozano Smith provides
a copy to use such copy intact and solely for the internal
educational purposes of such client.
38
Disclaimer: These materials and all discussions of these materials are for instructional purposes only and do not constitute legal advice. If you need legal
advice, you should contact your local counsel or an attorney at Lozano Smith. If you are interested in having other in-service programs presented, please
contact [email protected] or call (559) 431-5600.
Copyright © 2016 Lozano Smith
All rights reserved. No portion of this work may be copied, or sold or used for any commercial advantage or private gain, nor any derivative work prepared there
from, without the express prior written permission of Lozano Smith through its Managing Partner. The Managing Partner of Lozano Smith hereby grants
permission to any client of Lozano Smith to whom Lozano Smith provides a copy to use such copy intact and solely for the internal purposes of such client.
39