On September 12, 2019, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (complainant) against the XXXXX (district). This is the department’s decision regarding this complaint. The issue is whether the district, in the spring of 2019, properly conducted a manifestation determination for a student with a disability.
A manifestation determination is the process used to determine whether the behavior of a student with a disability that results in a proposed disciplinary change of placement is a result of the student’s disability. Behavior is a manifestation of the student’s disability if the disability caused or had a direct and substantial relationship to the behavior, or if the behavior was the direct result of the district’s failure to implement the student’s individualized education program (IEP). An expulsion is a disciplinary change of placement. Within ten days of a decision to change the placement of a student with a disability because of a violation of a code of student conduct, the school district, the parent, and relevant members of the student’s IEP team must review relevant information to determine if the conduct was a manifestation of the student’s disability. Relevant information includes the student’s IEP, teacher observations, and any additional relevant information provided by the student’s parents. This list is not exhaustive, and all relevant information must be considered. (34 CFR §300.530).
If the team determines the behavior is a manifestation of the student’s disability, the team must conduct a functional behavioral assessment (FBA) unless one had previously been conducted and develop a behavior intervention plan. If a behavior intervention plan (BIP) has already has been developed, the BIP must be reviewed and revised, as necessary, to address the behavior. Additionally, the team must return the student to the placement from which the student was removed, unless the parent and the district agree to a change of placement or an exception as discussed below applies. (34 CFR §300.530).
If the incident involves the use of drugs, weapons, or serious bodily harm, the student may be placed in an interim alternative educational setting (AIES) for not more than 45 school days regardless of whether the behavior is a manifestation of the student’s disability. In addition, if a school district believes that returning the student to the placement from which the student was removed is substantially likely to result in injury to the student or others, the district may request an expedited due process hearing. If the hearing officer finds that returning the student to the previous placement is substantially likely to result in injury, the hearing officer may order a change of placement to an appropriate interim alternative educational setting for not more than 45 school days. If, after the initial 45 school day period, the district believes returning the student is substantially likely to result in injury to the student or others, the district may repeat the request for a hearing. (34 CFR § 300.532). Additionally, the U.S. Supreme Court has ruled that school districts may petition a court directly if they believe returning a student would likely result in injury to the student or others without exhausting other administrative remedies. Honig v. Doe, 484 U.S. 305 (1988).
If the team determines the behavior is not a manifestation of the student’s disability, the district may apply the relevant disciplinary procedures in the same manner and for the same duration as they would be applied to a student without disabilities. During the disciplinary change of placement the district must enable the student to continue to receive a free, appropriate public education (FAPE) by providing services allowing the student to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the student’s IEP. The district must also ensure the student receives, if appropriate, an FBA and behavioral intervention services designed to address the behavior violation so that it does not recur. (34 CFR §300.530).
The student who is the subject of this complaint is in high school and is identified in the impairment areas of intellectual disability, emotional behavioral disability, and other health impairment. During the spring of 2019, the student engaged in serious misconduct on school grounds after school hours. This behavior resulted in an out of school suspension and recommendation for expulsion, in accordance with the district’s code of student conduct.
The student’s IEP team met on June 27, 2019, to determine whether the student’s conduct during the spring of 2019 was a manifestation of the student’s disability. The student’s IEP team was composed of the student’s attorney, the student’s parents, the student’s special education teacher, one of the student’s regular education teachers, an attorney for the school district, and a high school assistant principal who served as the local educational agency (LEA) representative. The meeting was facilitated by a district staff person with significant training and experience conducting manifestation determinations. The facilitator produced the preliminary and final documentation of the manifestation determination review.
At the meeting, the team conducted an extensive review of detailed documentation of the behavioral incident. The team also reviewed the student’s special education record dating back to when the student was in kindergarten, including all evaluations. The team also reviewed the student’s current IEP, information from the student’s parents, reports from the student’s current teachers, and information from a court-ordered competency evaluation conducted related to criminal charges the student received as a result of the incident. The team discussed the student’s intellectual functioning, which district records indicate is in the extremely low range across all domains of cognitive functioning. District records indicate the student has a history of significant inattention, impulsivity, anxiety, deficits in executive functioning, significant academic delays, and difficulty in relationships with peers and adults. The student frequently engages in behaviors such as distracting other students, being out of seat, yelling or talking back to staff, play-fighting with peers, and excessive silliness. Over the years, district staff observed the student engaging in many behaviors in an effort to avoid situations the student perceives as difficult, including academic tasks and demands from adults. The student engages in patterns of behavior typical of much younger students. For example, the student verbally denied misbehavior even when a teacher clearly saw the student engaging in the misdeeds. Another example of the student’s immature behavior occurring both at school and at home involved the student seeking different answers from multiple adults in obvious ways after being told no by the first person the student asked. The student is athletically talented and enjoyed participating in sports at school, and staff observed the student’s behavior was better when the student was engaged in sports. The student has difficulty understanding the passage of time and often needs rules explained over and over. The student’s problem-solving skills and the ability to regulate emotions are very delayed.
The information in the court-ordered competency evaluation was consistent with the district’s information about the student. It also included several details of the court examiner’s interactions with the student. For example, the evaluation indicated the student did not remember his birth date and could not tell the examiner the current date. The student could tell the examiner they were in the state of Wisconsin but had to guess on the name of the city. Even when the student tried hard to pay attention during the evaluation, the student was not able to understand the concepts the examiner described and could not retain the information even shortly after the examiner shared it. Based on the evaluation, the examiner determined the student was not competent to be involved in criminal proceedings.
At the manifestation determination meeting, after reviewing the relevant information, the members of the IEP team discussed their opinions about whether the student’s behavior was a manifestation of the student’s disability. All team members agreed the student’s IEP was being implemented as written. The student’s teachers and parents strongly believed the behavior was caused by or had a direct and substantial relationship to the student’s disability. The teachers cited many examples of the student’s difficulty with problem-solving, generalizing from one situation to another, desire to be accepted by peers but lack of age-appropriate social skills, and an inability to understand the consequences of actions. The student’s teachers interacted with the student every day, sometimes multiple times per day, and felt they knew the student very well.
The assistant principal, serving as the LEA representative, believed that the behavior was not a manifestation of the student’s disability. The LEA representative felt the serious behavioral incident had some correlations to previous patterns of disability-related behavior, but felt there was sufficient evidence the student knows the difference between right and wrong. The LEA representative cited a different incident from earlier in the school year involving the student taking money and not being truthful about it. The LEA representative said in that situation, after making up several stories about why the money went missing, the student somehow recovered the money and returned it after the LEA representative told the student the police might become involved. The LEA representative’s day-to-day contact with the student was limited almost exclusively to behavioral incidents.
The meeting became quite emotional and contentious, and since the LEA representative disagreed with the rest of the team members, the LEA representative determined he had to make the final decision. The LEA representative determined the behavior was not a manifestation of the student’s disability. The team went on to determine that pending the student’s expulsion, the student would be placed at a community site for one-to-one education with a teacher for two hours per day. According to the district’s code of conduct, the student would not be allowed on the grounds of any district building or facility for the duration of the expulsion. Given the nature of the misbehavior, an expulsion abeyance program offered by the district in other situations was not available to the student. At a hearing on August 19, 2019, the district expelled the student until the second semester of the 2020-2021 school year with the potential for early readmission at the start of the summer of 2020, subject to several conditions.
The decision as to whether a student’s behavior is a manifestation of their disability must be made by a group of individuals. (34 CFR §300.530[e]). No one person can make these determinations. (See Metro-Nashville [TN] Pub. Schs., 66 IDELR 289 [OCR 2015]). In this instance, the LEA representative alone disagreed with the unanimous conclusion of the other members of the IEP team regarding whether the student’s behavior was a manifestation of the student’s disability. In making the decision, the LEA representative relied exclusively on his personal interactions with the student, which were limited to interactions in the disciplinary context. In doing so, the LEA representative discounted evidence provided by the rest of the team, including the student’s parent. This evidence included many specific examples supporting the conclusion that the student’s behavior had a direct and substantial relationship to the student’s disability, such as evidence of the student’s low cognitive functioning, lack of age-appropriate interpersonal skills, and limited problem-solving skills.
Evidence provided by the district for purposes of this complaint suggested that the information regarding the competency evaluation was not appropriate to consider since the standard for competency in a criminal proceeding is very different than that in special education law. However, the student’s attorney shared the information for the purpose of informing the manifestation determination, and while the ultimate outcome of the competency evaluation was not determinative for purposes of the manifestation determination process, it was appropriate for the team to consider the information within the report.
Furthermore, evidence provided by the district for purposes of this complaint suggests the LEA representative’s manifestation determination was influenced by the serious nature of the student’s misconduct and the district’s reasonable concern about returning the student to the placement from which the student was removed. However, this consideration is not a proper consideration in determining whether the behavior is a manifestation of the student’s disability. (34 CFR § 300.530([e][i] and [ii]). Had the team determined the behavior was a manifestation of the student’s disability, the district would have had options available to address the district’s concerns regarding the student’s behavior and associated safety risks. The IEP team could have offered alternative placements and attempted to seek the parents’ agreement. The district could have requested an expedited due process hearing or sought a court order to demonstrate returning the student to the previous placement was substantially likely to result in injury to the student or others.
The district did not properly conduct a manifestation determination for a student with a disability. Within 20 days from the date of this decision, the district is directed to conduct a new manifestation determination. The district must demonstrate that the decision as to whether the student’s behavior was a manifestation of the student’s disability is not determined by the belief of one person, is reasonably based on the evidence available to the IEP team, and does not consider information that is irrelevant to the questions to be answered under 34 CFR § 300.530(e)(1)(i) or (ii). Depending on the outcome of the manifestation determination, the district must review, and if necessary, revise the student’s IEP, including behavioral supports and placement, to ensure it is appropriate for the student to continue to receive FAPE. The IEP team must also consider whether compensatory services are required. The district must submit a copy of the manifestation determination and revised IEP documents to the department within ten days of the meeting.
All noncompliance identified above must be corrected as soon as possible, but in no case more than one year from the date of this decision. This concludes our review of this complaint. This decision is final for the IDEA State Complaint process. These issues may be addressed through other dispute resolutions, including mediation and due process hearings. Visit http://dpi.wi.gov/sped/dispute-resolution for more information.
//signed by BVH 11/21/19
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support