The parents revoked consent for us to provide special education services, but this kid is a real behavior problem.  If he commits a serious offense, do we have to do a manifestation determination?

Houston ISD faced that dilemma during the 2013-14 school year. According to the report of a subsequent OCR investigation, the parents revoked consent for special education services on November 7, 2013.  From then until the following March the school suspended the student out of school 16 times.  The district did not consider whether or not this series of removals amounted to a “change of placement.” Nor did the district conduct a manifestation determination.  After all, the student was no longer in the special education program, no longer protected by IDEA.

OCR was brought in to investigate a parent complaint of discrimination over this issue and two others.  OCR did not find the district at fault with regard to any of the three issues presented.  One was dismissed because it was already the subject of another proceeding. A second issue was dismissed for lack of evidence to support it. But on the discipline issue, the district agreed to a voluntary resolution.

That resolution agreement required the district to 1) re-evaluate the student as per Section 504;  2) belatedly conduct a manifestation determination regarding those 16 suspensions; and 3) if the behavior is deemed to be a manifestation of the student’s disabilities, provide compensatory services.

Note that OCR did not order the district to do this and did not express the opinion that the district was required to do this.  The law on this subject is murky.  Parents who revoke consent for services under IDEA should be told very clearly that the protections of IDEA regarding discipline will no longer be provided.  But as to Section 504, we have no clear guidance.  Courts have come to different conclusions about the availability of Section 504 after IDEA services cease.  None of the cases, to date, has directly addressed the issue of student discipline, the notion of “change of placement” and the requirement of a manifestation determination.

The best practice is to consult with your school district attorney on this issue, as it calls for a careful case-by-case analysis.  We found the Houston ISD matter at 65 IDELR 52.   The OCR report is dated November 26, 2014.