by Randy Chapman

As a parent, Maria had a long rope, but she was quickly nearing the end of it. The principal had just called and asked her to come to school and pick up her son, Jeremy, because the teacher said he was "out of control." Jeremy hadn't finished his work during class time, and when the teacher told him he had to stay in during recess he had thrown his book at the chalkboard. Maria knew Jeremy could sometimes be a handful. He was in special education and had some emotional/behavioral issues, but this was the fourth time this fall that she'd been called and Jeremy had now missed 10 days of school. This time the principal said he was suspended for another 10 days and might be expelled or moved to a different school because his behavior was so disruptive.

While Maria knew that Jeremy's behavior was not acceptable, she believed it was related to his disability, and that there might be better ways to deal with it than withholding recess. Jeremy struggled to sit still through class, and recess was a much-needed break. It didn't seem fair that he might be expelled for "misbehavior" that was not Jeremy's fault. Hadn't she heard that students with disabilities could not be punished for behavior that was a manifestation of their disability? Didn't the law require that, as a child with a disability, Jeremy was entitled to appropriate educational services?

The Individuals with Disabilities Education Act (IDEA) provides that all children with disabilities have a right to a free appropriate public education, including children who are suspended or expelled. The act has specific procedures for school administrators to follow when disciplining children with disabilities. These procedures balance the need to keep schools safe with the right of children with disabilities to receive a free appropriate public education. There is a process to determine if a student's misconduct is a manifestation of the student's disability, and prevents children from being punished for "misbehavior" that is related to the child's disability. Unfortunately, the IDEA's procedures can be confusing. Here are some questions and answers regarding the manifestation determination process that should make the process clearer.

1. Who makes the manifestation determination?

The manifestation determination is made by a group that includes the child's parent(s) and the relevant members of the child's Individualized Educational Program (IEP) team. The parent and school administrators decide which IEP team members will be included in the meeting.

2. When must a manifestation determination be made?

Whenever the school decides to remove or suspend a student with a disability from the student's educational placement for more than 10 school days.

3. How does the group decide if the student's misconduct is a manifestation of the student's disability?

First, the group will review all of the relevant information in the student's file, including any information included from the IEP, teacher observations, and information provided by the student's parents. Based on that review, the group will determine whether:

(1) The student's misconduct was caused by or was directly or substantially related to the student's disability; or

(2) The misconduct was the direct result of the school district not implementing the student's IEP.

If the group determines that the misconduct was related to the student's disability or was the direct result of the IEP not being implemented, then the team will determine that the misconduct was a manifestation of the student's disability.

4. If the student knows right from wrong and understands it is wrong to violate the student code of conduct, doesn't that mean his misconduct was not a manifestation of his disability?

No, the student may know his/her behavior is wrong but the misconduct might still be directly related to his/her disability. For example, the student's disability may limit his ability to control the behavior. Or, perhaps IEP services, such as counseling, were never provided, causing the student's behavior to escalate beyond the student's control.

5. What happens if the student's misconduct is determined to be a manifestation of the student's disability?

The student's IEP team will meet and unless there are special circumstances or the IEP team changes the student's educational placement, the student will return to the school program he was in before the suspension. The IEP team will also conduct a Functional Behavioral Assessment and will implement a behavior intervention plan for the student. A Functional Behavior Assessment gathers information about the student's behavior to determine what function the student's behavior serves for the student. The behavior intervention plan is the plan to provide support to the student to intervene with the behavior.

6. What are special circumstances?

In disciplinary situations involving possession of weapons, illegal drugs, or the student has caused a serious injury, the school may remove the student for up to 45 school days, even if the misconduct is a manifestation of the student's disability. The student must receive appropriate educational services after the first 10 school days that the student is removed.

7. What if the group determines that the misconduct is NOT a manifestation of the student's disability?

If the student's misconduct is not a manifestation of the student's disability, then the student may be disciplined the same as a student without a disability. But if expelled, the student is still entitled to receive a free appropriate public education. In many cases the student's behavior is determined to be a manifestation of the student's disability. But parents have the right to appeal a decision that their child's behavior is not related to their child's disability. Hearings to resolve disagreements in the disciplinary process are expedited. That means the hearing must be held within 20 school days after it is requested and the decision must be made within 10 school days after the hearing is completed.

As much of an educating and exciting time school is for children, it can be a tough period for children with disabilities. Behavioral and emotional misbehavior in these children can be confused for traditional childhood mischief. Being aware and making sure your child's school is aware of the discipline procedures under the IDEA will ensure your child's success and happiness in their education.

About the Author

Randy Chapman is the Director of Legal Services at The Legal Center for People with Disabilities and Older People, Colorado's Protection and Advocacy System. He is the author of three books, including "The Everyday Guide to Special Education Law" (The Legal Center, 2005). "The Everyday Guide" is also available in the Spanish/English version, "Guia de la Ley de Educacion Especial," all available on Amazon.com. For 29 years, he has been promoting and protecting the rights of people with disabilities. He can be reached at www.thelegalcenter.org or 1-800-288-1376.

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