We’re trying to make a manifestation determination, and the parents keep arguing that their child is innocent, that he didn’t violate our Code of Conduct. What to do?

I attended a surreal ARDC meeting many years ago.  Someone at the middle school had started a fire that went out of control and burned the school down.  You will not be surprised to hear that this was a violation of the Code of Conduct.  The principal investigated the matter, and concluded that a student—let’s call him Adam—started the fire.  There was no “smoking gun” as it were, proving that Adam started the fire.  And Adam and his parents vehemently denied that he had anything to do with it.  But the principal felt there was enough evidence for her to conclude that Adam did it.

Adam was in the special education program, so an ARDC meeting was necessary to conduct a manifestation determination.  District practice at the time called for the ARDC meeting to be held prior to the general education due process hearing. So we were in the bizarre position of deciding if Adam’s disability caused him to start a fire that his parents contended he did not start.

I learned a few things from that.  One of them was that the general ed due process procedures should happen first. That’s where the arguments over “guilt or innocence” should be made.  If the principal finds that the student violated the Code of Conduct, and the parents disagree with that, they should take it up with the superintendent or the school board, just as a parent of a non-disabled student would do.  They should not make that argument to the ARDC.

This came up in a recent federal court decision involving a Texas district. The student was assigned to DAEP for 60 days due to a violation of the Code of Conduct that the parents claimed he did not commit.  They requested a special education due process hearing where they continued to assert that the student did not violate the Code of Conduct.  They lost there, and took it on to federal court.  They continued to argue about the Code of Conduct.  The judge ruled in favor of the school district, dismissing the parents’ argument as “not relevant” to the issues the hearing officer was to decide.  In other words, the hearing officer should not have addressed this issue—he should have confined his decision to the manifestation determination.

That may sound strange until you go back to the fundamentals about what a special education due process hearing is about.  Special ed hearing officers have jurisdiction over decisions of the ARDC—not the principal or the superintendent.  The ARDC deals with five things, five issues that can be appealed to a hearing officer: 1) identification; 2) evaluation; 3) placement; 4) the provision of FAPE; and 5) manifestation determinations.  The parents, in this case, were not arguing about any of that.  Even though it was a discipline case, they were not arguing about the manifestation.  Like Adam’s parents long ago, they argued that the kid didn’t do it in the first place.  The court said: that’s not what the ARDC deals with, and it’s not what a special ed hearing officer deals with.

The lesson here is that long term disciplinary action involving a student with a disability requires a two-step process.  The two steps should be kept separate and distinct.  Campus administrators investigate the matter and make a decision about whether or not the student has violated the school’s Code of Conduct. That’s the first step, and, of course, it requires due process. The student must be informed of the charge, and have an opportunity to rebut the charge, or otherwise, tell his or her side of the story.

Then it goes to the ARDC—the Admission, Review and Dismissal Committee—for step two.  The ARDC has two functions.  First, it must make a manifestation determination. Then it must make sure that the student will continue to receive a FAPE—Free Appropriate Public Education.

Thus if the parents are trying to convince the ARDC that the student did not commit the offense, they are making the argument to the wrong body.   If the campus administrators determined that the student committed the offense, and the parents disagree with that, they should take it up on appeal to the superintendent or the school board.  The ARDC lacks the power to overturn the principal’s decision.

The case is C.C. v. Hurst-Euless-Bedford ISD, decided by the federal court for the Northern District of Texas on May 21, 2015.

DAWG BONE: LONG TERM SPECIAL ED DISCIPLINE IS A “TWO STEP.”  DON’T MIX THEM UP.