Peter was a nine-year old boy with diagnosed ADHD, learning disabilities and emotional problems. He was provided special education services in the regular education classroom. His classroom behaviors often upset his new, first year teacher. He would often ask that directions be repeated and he needed extended time on most assignments. He would also become agitated and frustrated when he could not follow the teacher’s instructions. One day when he was agitated a peer grabbed the work with which Peter had been struggling. Peter was trying to figure out how to cut out and paste a picture onto his class assignment. He was using blunt end plastic school scissors. When the classmate pulled his work away from him, Peter picked up the scissors he was using in a threatening manner to the student and told him he had better watch out. The teacher sent the student to the principal’s office. This was not a first visit but it was the first for “violent behavior.” Under mandates for “zero tolerance for violence” the principal immediately suspended the student for the rest of the school year. One month remained in the school year.
Questions: Can the student be expelled in such a case? If this were your child what steps would you take?
Important points: Understand disciplinary regulations under IDEA. These include manifest determination IEP meetings and due process hearings. Procedures may vary by state but it is important to understand the steps that can be taken.
Result for Peter: In Peter’s case both a manifest IEP meeting and a due process hearing were held. It was determined that his actions were due to his disability. His IEP team was asked to reconvene to provide more support for his emotional disabilities in the regular education classroom. The parents had to hire an attorney to help them work through the steps of this process.
Manifest determination hearings follow disciplinary actions by the school that result in expulsion or a changing in placement. If a disciplinary action involves a request for a suspension or other actions involving removal from a program for more that ten days, the IEP team must meet to determine whether the misconduct resulted from the disability. This is referred to as a manifest determination hearing, review or IEP meeting.
A manifest determination for a student with disability involves a review of the student’s misconduct, the student’s disability, and the services provided to determine if (1) the behaviors resulted from or were a manifestation of an inappropriate placement or educational program for the student and (2) if the misconduct resulted from the student’s disability. If the answer to either of these questions is “yes,” the student will not be expelled but a student’s placement can be changed. If the answers to both questions are “no,” the school can proceed with the recommendation for expulsion. Expulsion of a student with disability, in that case, must occur as it would for a student without a disability.
The manifest determination hearing, or IEP team meeting, occurs after a child with a documented disability is recommended for suspension. Most often student suspension results when a student carries a weapon to school or to a school function, or if a child knowingly possesses or uses illegal drugs or sells or solicits the sale of such drugs. School officials can also request and alternative educational setting (AES). Under IDEA a student may have his/her educational placement changed due to disciplinary action for one of three circumstances:
- For certain drug and weapons offenses
- By a hearing officer for certain offenses
- By school officials for certain violations of state and local codes of conduct.
Before an expulsion can be initiated within a school system for a student with a disability, the IEP team must conduct a “manifest determination.” In this meeting they must determine whether the behavior exhibited by the student that resulted in expulsion was a result of the disability. For example, did a student who lifted a pair of blunt end paper scissors to scare another child do so because he was impulsive due to ADHD or did he due so simply as an act of aggression? In all cases parents should make certain they are aware of the time of this meeting and plan to attend. A manifest determination hearing must occur within ten (10) days after the date on which the decision was made to recommend an expulsion. If the student’s parents disagree with the manifest determination meeting decision, a due process hearing can be requested from a panel outside of the basic IEP team. At this meeting it is wise for parents to engage the services of an educational legal advocate, or a special education lawyer, who can help them make certain needed procedures are followed in the hearing. If this meeting determines the answers to the questions raised above to be “no,” the student can be expelled from the school system. Educational services can be terminated after such an expulsion.
Expulsion from a school is very serious. It means the student may not attend classes, school functions or be on the school property. For example, a student who has been expelled cannot attend a graduation ceremony of a sibling. The student cannot attend school sporting events. Access to public education is denied. Another school within the system cannot be forced to take a student who has been expelled.
This is a very difficult issue. The rights of both teachers and other students must be protected. Violence and the use of drugs put others at risk as well. The case example presented at the outset of this discussion shows how expulsion can quickly happen in situations where it is not justified. In many cases the expulsion is justified. When this happens work with the IEP teams to determine if alternative education programs can be put into place so that the student can continue his or her education. Check to determine the procedural policies of your public school system.
To read more on “manifest determination” follow the links below.