Toolbox Tuesday!! Let’s talk about manifestation determinations.

On Tuesdays around here we like to emphasize our firm’s all day training program about the discipline of students with disabilities.  We call it The Toolbox because it provides ten “tools” that are available in various situations.  One of those—Tool #6—can only be used if the ARD Committee concludes that a student’s behavior is NOT a manifestation of the student’s disability.  Tool #6 is a Disciplinary Change of Placement. As that name implies, this is a punitive measure. The student continues to receive appropriate educational services, but in a different and stricter setting.  This is the consequence that is applied to non-disabled students who commit serious violations of the Code of Conduct. If a student with a disability does the same type of thing, and it’s not caused by the disability, the consequence should be the same. 

But what do you do when the members of the ARDC are not in agreement?  For today, let’s just consider internal disagreements.  There are times when all of the school staff members of the Committee are in agreement and the parent dissents. But today we want to talk about disagreements among the school staff.  Here are a few things to think about.

 1. This is to be expected.  The law sets up ARD Committees with a variety of members so that different perspectives can be shared.  The teacher may view the child differently than the assistant principal does. The school psych does not have the day-to-day experience with the child that the teacher does, but she does have more expertise and training about certain issues. So don’t be surprised or alarmed when people see things differently. 

2. You can hold a staffing to discuss this situation in advance of the ARDC meeting.   The federal regulations guarantee that parents have the right to participate in “meetings” about the IEP and placement of the child.  That same regulation goes on to say that this right does not extend to “preparatory activities that public agency personnel engage in to develop a proposal or response to a parent proposal that will be discussed at a later meeting.”  34 CFR 300.501(b)(3). 

3. You should give more weight to the input of the person with the most expertise in the specific area you are dealing with.   On October 30th in the Daily Dawg we told you about a case where the specific issue was eligibility.  A private psychologist said that the student should be eligible because she had an emotional disturbance.  The ARDC disagreed, largely based on teacher input as to “educational need.” The court agreed with the school. Notice: if you are talking about “educational need” the insights of classroom teachers with personal experience with the student should carry more weight than those of a qualified school psychologist.  That is not the case when you are making a manifestation determination about a student who has already been declared eligible due to an emotional disturbance.  When you are focusing on whether or not a behavior is a manifestation of a disability, particularly with a student who has an emotional disturbance, the school psych will generally have more expertise than a teacher or administrator. Everyone’s input counts, but some more than others.

4. Ultimately, the school does have to speak with a united voice at an ARDC meeting, and that voice should come from the person designated as the representative of the district.  However, that person should not dictate the school’s position, but rather, give voice to it after careful consideration of all of the input.


Tomorrow: 5th Circuit on Least Restrictive Environment.