Manifestation Determinations Done Right: Caselaw Lessons and Compliant Practices Presented by Jose Martín, Attorney at Law Richards Lindsay & Martín, L.L.P. Austin, Texas

Basic IDEA Rule Schools may impose long-term disciplinary removals only after finding the offense was not related to the student’s disabilities (i.e., not a “manifestation” of the disabilities) Thus, the MD review (MDR) is crucial

The 2004 MDR Reforms Policy background—Congress wanted a “raising of the bar” for MDRs Modern MDR Formulation—Need for causal, direct, or substantial relation between behavior & disability Failures to implement IEP must directly result in behavior for a link finding

The 2004 MDR Reforms “Attenuated” relationships, like low-self esteem arguments, are not enough Also, a desire to simplify MDRs (which was quite complicated under IDEA ‘97) Analysis of behavior across settings and time (a new emphasis for MDRs) Appropriateness of IEP not an MDR issue, only implementation

When is the MDR Required? Main situation—For disciplinary changes in placement (long-term removals of >10 consecutive school days) Also, when short-term removals get to be “too much” in a year (pattern of exclusion)

How is “new” MDR Different? Closer logical relationship between behavior and disability required now Compare to IDEA ‘97 provision, where even slight links could support link finding And, 1997 language was obtuse—new formulation is more straightforward Very difficult to to argue behavior related to IEP failures With stay-put change, fewer MD cases…

Modern MDs in Action San Diego USD (SEA Cal. 2009) Student claims possession of pills was impulsive and related to ADHD Student had texted and talked to another about sharing the pills at school HO upheld school’s no-link finding based on the student’s long-term arrangements

Fitzgerald v. Fairfax Co. (E.D.Va. 2008) ED Student involved in paintball vandalism at school over span of hours at night Notice parents’ procedural arguments… Court found no link, noted student was the “planner,” and that he went back for ammo three times

Medford Pub. Schs. (SEA Mass. 2010) Student involved in off-campus car break-in Facts showed planning (disguise, alibi) Private psych argued relation to “executive function deficits,” but without evaluation and limited contact with student

In re: Student (SEA W.Va. 2009) Student with ADHD, ODD, borderline IQ, took a pill given to him by older boy Records indicated he was impulsive, susceptible to peer pressure School’s brief MDR did not review key info above, predetermined MD

Summary of Impulsivity Cases Argument is essentially de rigeur in cases of emotional or behavioral disabilities But, if behavior involves steps, plans, time, argument tends to fail Facts must on their face show impulsivity

MaST Charter Sch. (SEA PA 2006) Student brings knife for protection, on various occasions Parent submits new eval with new diagnoses (with scant support) Panel finds behavior not impulsive or related to ADHD

Panel notes new diagnoses don’t seem to meet IDEA eligibility model Does a condition need to rise to level of IDEA eligibility, alone, to “count” for MD purposes?…

Why did it matter if behavior was related or not, if school only wanted 45-day removal for the weapon offense? Is this not moot? See Pemberton case Also see R. S. v. Corpus Christi ISD (controlled substances, 30-day placement, HO finds mootness)

Township HSD (SEA Illinois 2010) Facebook threat not related to teen’s ADHD, Bipolar, borderline IQ HO finds link, says student did not intentionally violate school rules because “he did not fully comprehend the potential consequences” and did not intend to carry out the threat

Fulton County Sch. Dist. OHI student threatens to kill teacher Team only addresses link to ADHD without addressing ODD, which they knew about And, there was evidence of pattern of threats…

Scituate Pub. Schs. Asperger’s student having bad day, wants to go home, escalates by pulling on principal’s necktie School interprets tie as a “weapon” HO says no dice—not readily capable of injury, and no “possession” (control)

But, behavior not related to disability, since it was purposeful, calm escalation HO says no evidence of lack of understanding of consequences… (slipping back to old thinking?...)