Manifestation Determinations: Suspensions and Special Education Students

If your special education student gets suspended from school they have certain rights that a general education student may not have.

First, a special education student can be suspended or removed to an alternative placement for up to 10 school days for the entire school year due to a violation of student conduct. If your child is suspended for more than that or the district is attempting to move him to an alternative placement for more than 10 days then the district must first hold a manifestation determination meeting within 10 days of the decision to move the student. To review so far - the district can decide that they want to suspend for more than 10 days or even decide that they want to move your student but they can NOT actually do it until they conduct a manifestation determination meeting.

What is a manifestation determination? It could be like an IEP or it could be more like an expulsion hearing - depending on your district. Under the law the district, parents, and all relevant members of the IEP team review all relevant information in the students file, including their IEP, relevant observations, and information provided by parents to determine whether the conduct in question was caused by or had a direct and substantial relationship to the child's disability or if it was the direct result of the district's failure to implement the IEP. If either of these apply then the violation was a manifestation of the child's disability. If neither of these apply then it was NOT a manifestation of the child's disability and the suspension or move to an alternative placement goes forward UNLESS you appeal the result by requesting a hearing. If your child is removed to an alternative setting the district is still required to provide him with a FAPE.

If the violation is a manifestation of my student's disability what happens next? The IEP team must then conduct a functional behavioral assessment and implement a behavioral intervention plan or if a behavior intervention plan was already developed they must review the plan and modify it to address the behavior. The child also gets to stay at his or her current placement unless the parents and the district agree to a change in placement.

Are there circumstances where this doesn't apply? Of course there is. The district can remove the student to an interim alternative educational setting for not more than 45 days regardless of whether or not the violation was related to the student's disability in the following circumstances: 1) the student carried or possessed a weapon on school premises or a school function; 2) the student knowingly possesses or used illegal drugs or sold or solicited the sale of a controlled substance while at school or at school function; or 3) has inflicted serious bodily injury upon another person while at school or at a school function. The interim setting is still determined by the IEP team.

What if my child is not eligible for special education? In that circumstance they may still be protected if the district had knowledge that the child was a child with a disability before the behavior occurred. The district will be deemed to have such knowledge if the parent expressed their concern in writing that the student was in need of special education, if they requested an evaluation or if the teacher of the child or other personnel expressed specific concerns about the behavior to the director of special education or other personnel.

Can the school call the police? The laws that govern special education students do not do prohibit the district from reporting a crime to the appropriate authorities or prevent law enforcement or judicial authorities from exercising their responsibilities.