School Suspensions, Expulsions & Manifestation Determination Reviews

Know Your Child’s Discipline Rights — Before It’s Too Late
 

When your child is facing a school suspension, expulsion, alternative placement, or Manifestation Determination Review (MDR), what you do next can matter.  Students with disabilities have important protections under the Individuals with Disabilities Education Act (IDEA). In some circumstances, those protections can even apply to a student who does not yet have an IEP.   Parents should understand these rights before agreeing to a disciplinary change of placement or walking into a manifestation determination meeting unprepared.
 

Special Discipline Rights for Students With Disabilities
 

A student with an Individualized Education Program (IEP) can be disciplined for violating school rules. Having an IEP does not mean that a student can never be suspended or removed from school.   However, when disciplinary removals constitute a change of placement, IDEA provides additional protections. One of the most important is the Manifestation Determination Review (MDR).
 

What Is a Manifestation Determination Review?
 

A Manifestation Determination Review is a meeting at which the school district, the parent, and relevant members of the student's IEP Team review all relevant information in the student's file, including the student's IEP, teacher observations, and relevant information provided by the parents.
 

The team must answer two critical questions:

1. Was the conduct in question caused by, or did it have a direct and substantial relationship to, the child's disability?

2. Was the conduct in question the direct result of the school district's failure to implement the child's IEP?

If the answer to either question is YES, the conduct must be determined to be a manifestation of the child's disability.
 

That decision can dramatically affect what the school is legally permitted to do next.
 

When Is a Manifestation Determination Required?
 

Under IDEA, a manifestation determination generally must occur within 10 school days of the decision to change the placement of a child with a disability because of a violation of the student code of conduct.
 

A disciplinary removal can become a change of placement when:

• The student is removed for more than 10 consecutive school days; or

• The student has experienced a series of removals that constitutes a pattern, considering factors such as the total number of days removed, the length of each removal, the proximity of the removals to one another, and whether the child's behavior is substantially similar to behavior in previous incidents that resulted in removals.
   

An expulsion or long-term disciplinary reassignment may also constitute a disciplinary change of placement.

Important: Parents sometimes hear that an MDR is automatically triggered simply because a student has accumulated 10 total suspension days. The legal analysis is more nuanced. Multiple short-term removals must be examined to determine whether they constitute a pattern and therefore a change of placement.
 

What Happens if the Behavior IS a Manifestation of the Disability?
 

If the team determines that the conduct was a manifestation of the child's disability, IDEA generally requires the IEP Team to address the behavior rather than simply remove the student through an ordinary disciplinary change of placement.
 

Depending upon the circumstances, this can include conducting a Functional Behavioral Assessment (FBA) and implementing a Behavior Intervention Plan (BIP), or reviewing and modifying an existing BIP.

Generally, the student must also be returned to the placement from which the student was removed unless the parent and school district agree to a different placement as part of modifying the student's behavioral intervention plan.
 

The 45-School-Day Exception
 

IDEA contains an important exception involving certain serious incidents.
 

School officials may remove a student with a disability to an appropriate Interim Alternative Educational Setting (IAES) for up to 45 school days when the student:

• Carries or possesses a weapon at school, on school premises, or at certain school functions;

• Knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, under the circumstances specified by IDEA; or

• Inflicts serious bodily injury upon another person under the circumstances specified by IDEA.

These special removals may occur regardless of whether the behavior is determined to be a manifestation of the student's disability.   Students with disabilities also remain entitled to important educational protections during qualifying disciplinary removals.
 

What if You Disagree With the Manifestation Determination?
 

You do not necessarily have to accept the school's manifestation determination decision.   If you disagree with a determination regarding manifestation or with certain disciplinary placement decisions, IDEA allows a parent to challenge the decision through an expedited due process hearing.  Because disciplinary timelines move quickly, parents should act promptly.

8 Common Mistakes Schools Make When Disciplining Students
 

School disciplinary decisions are not automatically correct simply because an administrator made them.

Here are eight issues parents should investigate when their child is facing suspension, expulsion, alternative placement, or another serious disciplinary consequence.
 

MISTAKE #1 — The Student Did Not Actually Violate the Rule
 

Start with the most basic question:

Does the alleged conduct actually satisfy the rule the school says your child violated?
 

Read the exact language in the school's Code of Student Conduct and compare it with the evidence and the school's description of what happened.
 

Sometimes the facts alleged by the school simply do not satisfy every element of the offense charged.

Do not assume the school's disciplinary label is correct.
 

MISTAKE #2 — The School Fails to Provide Proper Notice
 

Students facing disciplinary action have procedural protections.
 

The specific notice and hearing requirements can depend upon the type and duration of the discipline, applicable state law, district policy, and constitutional due-process requirements.
 

Parents should examine:

• What notice was provided;

• When it was provided;

• What violation was alleged;

• What evidence supports the allegation; and

• What opportunity the student was given to respond.
   

Procedural errors can matter.
 

MISTAKE #3 — The School Fails to Follow Its Own Procedures
 

The school's Code of Student Conduct, district policies, state law, IDEA, Section 504, and constitutional due-process requirements may all affect a disciplinary case.   Schools expect students to follow the rules.  Schools must follow the rules, too.  Before accepting a suspension or expulsion decision, determine whether the school actually followed the procedures that apply to your child.
 

MISTAKE #4 — The School Improperly Exercises Its Discretion
 

Not every disciplinary decision is mandatory.
 

Administrators may have discretion regarding the consequence imposed, and that discretion should be exercised consistently with applicable law and policy.
 

Parents should investigate whether:

• The evidence supports the decision;

• Relevant mitigating circumstances were considered;

• The punishment is authorized by policy;

• Required procedures were followed; and

• The student received a meaningful opportunity to challenge the allegations.
   

A disciplinary hearing should be a meaningful process — not merely a formality designed to approve a decision that has already been made.
 

MISTAKE #5 — The Team Makes an Incorrect Manifestation Determination
 

This is one of the most significant problems we encounter.
 

The MDR is not supposed to be a superficial discussion about whether the student "knew right from wrong" or "could have made a better choice." 
 

That is not the legal standard under IDEA.
 

The team must determine whether the conduct:  was caused by, or had a direct and substantial relationship to, the child's disability; OR was the direct result of the district's failure to implement the IEP.
 

The team should carefully examine the student's disability, evaluations, behavior history, IEP, behavioral data, FBA, BIP, teacher observations, parent information, services, accommodations, and other relevant evidence.

We have seen cases in which the relationship between the disability and the conduct appeared significant, yet school personnel initially attempted to find that the behavior was not a manifestation.
 

Parents should come to the MDR prepared to present evidence, not merely prepared to listen.
 

MISTAKE #6 — The School Removes the Student Longer Than the Law Allows
 

Discipline involving a student with a disability requires careful tracking of removal days.

Parents should know:

• How many school days the child has been removed;

• Whether removals are consecutive or cumulative;

• Whether multiple removals constitute a pattern;

• Whether a change of placement has occurred;

• Whether an MDR was required;

• Whether educational services are required during the removal; and

• Whether the school is relying upon one of IDEA's special-circumstances provisions.

We have represented students whom school officials attempted to remove for substantially longer than the applicable rules permitted.

 

Count the days. Read the notices. Check the law.
 

MISTAKE #7 — The School Unlawfully Discriminates Against the Student
 

Students are protected by federal and state civil-rights laws, including protections against disability discrimination.

Depending upon the circumstances and applicable law, discrimination may involve disability, race, color, national origin, sex, or other legally protected classifications.
 

We have handled cases involving extremely lengthy removals of students with disabilities where we challenged the legality of the school's actions and sought remedies, including compensatory educational services.

A disciplinary label does not eliminate a student's civil rights.
 

MISTAKE #8 — The School Failed to Identify the Student's Disability
 

This mistake can begin long before the disciplinary incident occurs.
 

Public schools have obligations to identify, locate, and evaluate children suspected of having disabilities who may need special education and related services.
 

A student struggling with persistent behavioral, emotional, attentional, developmental, communication, or academic problems should not simply be labeled a "behavior problem" without considering whether an evaluation is warranted.
 

When schools fail to evaluate and identify eligible students appropriately, those failures can have serious consequences when discipline occurs.
 

What if My Child Does NOT Have an IEP?
 

This is extremely important.
 

A student does not necessarily lose IDEA's disciplinary protections simply because an IEP has not yet been created.

Under IDEA, certain disciplinary protections may apply to a child who has not yet been determined eligible for special education if the school district had knowledge that the child was a child with a disability before the behavior that resulted in disciplinary action occurred.
 

Subject to IDEA's specific exceptions, a school district is generally deemed to have such knowledge when, before the behavior occurred:

1. The parent expressed concern in writing to supervisory or administrative personnel, or to a teacher of the child, that the child needed special education and related services;

2. The parent requested an evaluation of the child under IDEA; or

3. The child's teacher or other school personnel expressed specific concerns about a pattern of behavior demonstrated by the child directly to the district's director of special education or other supervisory personnel.
    

There are important exceptions to this rule. For example, IDEA provides circumstances in which a district will not be deemed to have knowledge, including certain situations where a parent refused an evaluation or special education services or the child was evaluated and determined not to be a child with a disability.
 

That is why the specific facts and timeline matter.

Do think Your Child May Need an IEP? Put Your Request in Writing.
 

If you believe your child may have a disability and needs special education and related services, do not rely exclusively on conversations with teachers or administrators.
 

Consider making a written request for an evaluation.
 

Your request should clearly explain your concerns and state that you are requesting an evaluation to determine whether your child is eligible for special education and related services under IDEA.

Keep a copy of the request and documentation showing when it was delivered.
 

Facing a Suspension, Expulsion or Manifestation Determination?
 

Do not wait until after the meeting to learn what your child's rights were.
 

Manifestation determinations and school discipline cases can move quickly. The evidence presented, questions asked, documents reviewed, legal standards applied, and objections raised can affect what happens next.

At MyChildWins.com Education Advocates, LLC, we help parents understand and assert their children's special-education rights in disciplinary proceedings.
 

We can help parents:

• Prepare for Manifestation Determination Reviews;

• Review IEPs, evaluations, FBAs and BIPs;

• Analyze suspension and removal histories;

• Identify potential procedural violations;

• Prepare arguments and evidence for MDR meetings;

• Address failures to implement an IEP;

• Challenge inappropriate disciplinary changes of placement;

• Request evaluations and pursue IEP or Section 504 eligibility when appropriate; and

• Evaluate options when parents disagree with a manifestation determination.
   

Your Child's Education Is Too Important to Guess
 

If your child is being suspended, expelled, transferred to an alternative school, or scheduled for a Manifestation Determination Review, the time to understand your options is before important deadlines and meetings pass.
 

Schedule a FREE consultation with MyChildWins.com today.
 

Call 321-758-8400