Manifestation Determination: How the Law Is Implemented
In situations where the IEP team decides that there was no relationship present, school officials may apply the same disciplinary procedures and severity that they use for students without disabilities. Even so, students with disabilities must continue to receive services consistent with the content of their IEPs. In circumstances where IEP teams are convinced that misconduct was related to student disabilities, school officials may not apply the same disciplinary procedures that they use for children without disabilities. Where manifestations are established, the IDEA requires IEP teams to conduct functional behavioral assessments if they are not already in place or review these assessments and plans if they have already been implemented for students with disabilities, revise the IEPs as necessary to implement behavior intervention plans, and return children to their then-current placements unless their parents and local educational officials agree to changes in placements based on the modifications of the behavioral intervention plans.
The differential application of disciplinary procedures when manifestations are established represents the fundamental belief that students with disabilities should not be treated the same as children without disabilities for behavior that is a function of their disabilities, because their actions are out of their control. The language of IDEA 2004 differs subtly but in meaningful ways from its 1997 predecessor, which required only that IEP teams evaluate simply whether misconduct was a “manifestation of” student disabilities. In contrast, IDEA 2004 directs IEP teams to consider whether misconduct was caused by student disabilities or was the direct result of the failure of local educational officials. The new language essentially places more accountability on students, because IEP teams are unlikely to meet the stringent criteria of evaluating whether misbehavior is a manifestation of students’ disabilities.
Students with disabilities may be removed from school for up to 45 school days and placed in appropriate interim alternative placements without manifestation determinations (as long as the same penalties would apply to students who do not have disabilities) under three circumstances: possession of weapons at school or school related functions; knowing possession or use of illegal drugs or selling or soliciting the sale of controlled substances while at school, on school premises, or at school functions; and infliction of serious bodily injury on another person while at school, on school premises, or at school functions. When parents and local educational officials disagree with the decisions of IEP teams, either party may appeal by requesting hearings to challenge their actions. Appeals must be arranged by the educational agency within 20 school days of the date the hearings are requested, and a determination must be made within 10 school days after the hearings are completed. Once parents request appeals, students remain in their then-interim alternative placements pending the outcomes of hearings or until the expiration of their suspensions. The burden of proof at such hearings rests on the parties making the appeals.