When a student with a disability violates the school code of conduct, the school can impose exclusionary disciplinary consequences on the student just as it can on any other student for up to 10 days in a school year.1 However, for any disciplinary action (or pattern of actions) that constitutes a change in placement, the relevant members of student’s IEP team (as determined by the LEA and the parent2 ) must be convened within 10 days of the decision to change the student’s placement.3 This is called a Manifestation Determination Review (“MDR”), the purpose of which is to determine whether the behavior for which the student was disciplined was caused by or related to the student’s disability. The MDR participants must consider all relevant information in the student’s file, including the student’s IEP, teacher observations, and any relevant information provided by the parent.4
At the MDR, the team must answer two questions: (1) whether the conduct that led to the disciplinary action caused by or substantially related to the child’s disability; and (2) whether the conduct that led to the disciplinary action was the direct result of the school’s failure to implement the student’s IEP.5 If the answer to either of these questions is yes, then the behavior is deemed to be a “manifestation” of the disability and the student cannot be removed except for a few special circumstances.6
In order to answer the first question, the team must look at what the behavior was, the nature of the student’s disability, the student’s past behaviors, and any other relevant information. The team should be sure to look back at the student’s most recent evaluation and any other relevant documents to see how the symptoms of the disability were described. This review process should take the whole student into account, not just the student’s listed disability/classification. For example, a student may have a classification of Specific Learning Disability (“SLD”), which in and of itself is not often associated with behavioral manifestations. However, the student may act out due to frustration or an inability to understand or complete the work because of the student’s SLD. In this instance, the behavior should be considered a manifestation of the student’s disability because the behavior is substantially related to the learning disability.
The second question is whether the conduct was the direct result of the school’s failure to implement the student’s IEP, including any Behavioral Intervention Plan. For example, if the student’s IEP requires that the student have a one-on-one aide to help with behavior, but the aide was not present on the day of the misbehavior, it is likely that the conduct was the direct result of the school’s failure to implement the IEP. If other services designed to respond to the student’s behavior were not in place, such as school social work services or counseling, then it could be said that the conduct was the direct result of the failure to implement the IEP.
As a practical matter, most school districts hold the MDR prior to any expulsion hearing given the short timelines for the MDR and the futility of going through the expulsion hearing process for a behavior that later would be determined to be a manifestation of the student’s disability. However, several school districts in Louisiana actually hold the expulsion hearing first and then hold the MDR. In these instances, it is important to pay particular attention to timelines as the MDR must be held within 10 school days of the district’s decision to remove the student indefinitely pending an expulsion hearing and the district’s failure to do so should result in the student’s immediate return to the original placement.
- 1La. Bulletin 1706 § 530(B).
- 2The team will include the Officially Designated Representative for the LEA who has the ultimate authority in determining the outcome of the MDR.
- 3La. Bulletin 1706 § 530(E). Guidance from the U.S. Department of Education’s Office of Civil Rights specifies the manifestation determination must be made “before implementing a disciplinary removal that will result in a significant change in placement.” Off. for Civ. Rts., U.S. Dep’t of Educ., Fact Sheet: Supporting Students with Disabilities and Avoiding the Discriminatory Use of Student Discipline Under Section 504 of the Rehabilitation Act of 1973 at 3 (July 19, 2022). This means a student already at 10 days of removal for the school year who is facing a new suspension that is part of the same pattern should have an MDR before the student begins serving any additional days of removal.
- 4La. Bulletin 1706 § 530(E).
- 5Id.
- 6Id. § 530(F). On these exceptions, see Section 8.5.6.