Over the years in deliberations on a manifestation determination I have often heard two diametrically opposed opinions shared. The first opinion expressed often goes something like this, “He has an emotional disturbance, therefore everything he does is impacted by his disability.” The response to that is often expressed similarly to, “I know lots of kids who have emotional disturbances and have not done that, so it is clearly not related to his disability.” Having set the stage with these polar opposite positions, let us delve into the manifestation determination review and try to determine which, if either, of these positions is correct.

The manifestation determination review, as defined by the Office of Special Education, means a process to review all relevant information between a student’s disability and the behavior subject to the disciplinary action. In short, the mandate requires that the Individualized Education Program (IEP) team must review all relevant information in the student’s file, including the child’s IEP, any teacher observations, and any relevant information provided by the parents to determine if the conduct in question was:

a) caused by, or had a direct and substantial relationship to the child’s disability, or

b) the direct result of the Local Education Agency’s failure to implement the IEP.

As simplified by the Individuals with Disabilities Education Act (IDEA) 2004, a manifestation determination is required for removals that constitute a change of placement under IDEA’s disciplinary procedures and is not required for removals for less than 10 consecutive school days that do not constitute a change of placement. The manifestation determination must occur within 10 days of any decision to change the child’s placement because of a violation of the code of conduct.

So, the committee meets and had to answer two questions:

1. Was the conduct a manifestation of the child’s disability? And

2. Was the conduct the direct result of the school’s failure to implement the child’s IEP.

If the answer to the first question is yes, the behavior in question had a direct and substantial relationship to the child’s disability then it is a manifestation of the child’s disability. As such, there are two considerations that follow immediately:

• Has the child had a functional behavioral assessment (FBA)? If not does one need to be conducted? To me, this is a no-brainer. Clearly, if the student is violating the code of conduct and has not had a functional behavioral assessment, this needs to happen right now.

• Does the child have a behavioral interventions plan (BIP)? If so, does it need to be reviewed and revised? If not, does one need to be written? Again, if the student is violating the code of conduct then a behavior intervention plan needs to be in place. So, if the student does not have one, create one. If the student does have one, it did not work or we would not be here, so it needs to be reviewed and revised.

If the answer to the second question is yes and the behavior was the direct result of the school’s failure to implement the child’s IEP, then a thorough reviews of the failure on the part of the school needs to be conducted and as the Department of Education explains, “The LEA has an affirmative obligation to take immediate steps to ensure that all services set forth in the child’s IEP are provided, consistent with the child’s needs as identified in the IEP.”

As a result of the affirmative answer to either of these questions, the child must be returned to the placement from which he or she was removed as part of the disciplinary action with two notable exceptions:

• if the behavioral infraction involved special circumstances of weapons, drugs, or serious bodily injury; or

• if the parents and school agree to change the child’s placement as part of the modification of the Behavioral Intervention Plan.

In either case, then the child need not necessarily return to the same placement.

However, if the local education agency uses one of the exception clauses involving special circumstances, definitions under CFR 300.530 of “weapons,” “drugs,” and “serious bodily injury” should be reviewed and considered. For example, serious bodily injury is not a bloody nose or a black eye. Serious bodily injury is an injury which “involves substantial risk of death; extreme  physical pain; protracted and obvious disfigurement; or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.”

Under the special circumstances, school personnel may remove a student to an interim alternative education setting for not more than 45 school days without regard to whether the behavior is determined to be a manifestation of the child’s disability. 

If the MDR committee determines that the answer is “no,” then it means the child’s behavior was not caused by or did not have a direct and substantial relationship to the child’s disability or the child’s behavior was not a direct result of the school’s failure to implement the IEP.

When the determination is no, the school personnel have the authority to apply the relevant disciplinary procedures to the child with disabilities in the same manner and for the same duration as the procedures would be applied to a child without disabilities, except whatever special education and related services the school system is required to provide the child with disabilities still must be provided.

In removing the student to an alternative educational placement under the special circumstances clause or if the behavior is not determined to be a manifestation of the disability, the committee must determined the educational services for a free appropriate public education that may be provided in the alternative placement in order to enable to child to continue to participate in the general education curriculum, although in another setting and to enable the child to progress toward meeting the goals set out in the child’s IEP. The student who is removed form the current placement must receive, as appropriate a functional behavioral assessment and a behavior services and modifications, that are designed to address the behavior violation so that it does not recur.

So, now that we know how it works, and after reviewing all relative documents and hearing teacher comments and reviewing parental input, what factors should be considered in determining if the behavior is a manifestation of the disability?

• discipline history (total number of suspensions, proximity of suspensions, length of each suspension)

• pattern of behaviors (is this an isolated incident or is this substantially similar to previous behaviors)

• contributing factors (unique circumstances, witness statements, students and personnel involved, environmental factors, direct and indirect antecedents, etc.)

• potential danger (was this behavior likely to result in injury to the student, other students, or school personnel?)

In other words, this decision is not based on the label that has been applied to the student. The decision is based on the student and should be made by school personnel and parents who know the student and are familiar with the student and his or her behavior. Saying “everything about this kid is related to his disability” or “other kids with this disability don’t do this” does not determine if this particular behavior is a manifestation of this particular disability for this particular student. And that gets to the heart of the matter in a manifestation determination review.

Many teachers are starting the semester virtually. Some of you will move on to face-to-face classes soon, others may be teaching online all year. So, what is important in starting the year off right if you must start virtually?

Since everyone is so unconnected, one of the first things teachers need to do is connect with the students. While I normally advocate establishing procedures in the first few days of school, I always want teachers to be at the door welcoming students to class, especially at the beginning of the semester. Sometimes this is difficult to do because there is so much paperwork to be done at the beginning of the school year, but kids need to know they are more important than paperwork. One of my mentors used to say, “Do not let people get in the way of the school business. People are the school business.”

This year, spend a little time talking to each student as they log in. As some students are trying to log in and others have not made it yet, you may get 30 seconds or so to speak to an individual student. Don’t waste that time saying, “We will get started when more students get on.” That makes it sound like the individual student is not important…what is important is the content and we won’t start that until more students get here….why would I waste my time on just one kid? While you are waiting, get to know the students who are there.

Now (back to my mantra) teach procedures and expectations. Although you will not be teaching your procedures for passing in papers, sharpening pencils, dismissal, etc. as you usually would, you do want to teach procedures and expectations for Zoom sessions or whatever software you are using. This may be the sign in procedure. Will there be an introductory assignment each day for them to get started on when they first sign in? What are your expectations for when class will start? Although I have encouraged you to use any time you have before everyone logs in to get to know students, you do not want to waste time each day waiting for students to log in. This may be acceptable on the first few days of class, but students need to know that you expect them to be at class on time, which means log in on time. Emphasize the rationale that what you are teaching is important and they need to know it, so you do not want to waste their time or the time of others waiting on everyone to log in.

Other expectations may include what register of language is required. For example, is formal English required in oral communication or will we be more informal since we are online? And what about written communication? Can we use text abbreviations like BTW, IMHO, and LOL or must we type everything out in English? Your school’s guidance and your tolerances are in play here. You might also consider what class you are teaching. If you are teaching English/Language Arts, requiring typed English will give you much more information in informal assessments of student ability than allowing text speak. However, if you are teaching math, you may be more interested in their ability to comprehend and perform the calculations and may allow texting for quicker chats.

So, as the semester starts, do not forget that your students are probably less connected to the school than they have ever been. You have the opportunity to connect with them. Each and every student you see on your screen needs a connection to you. Clearly, some will need that connection more than others, but make the effort. Be the connector and the connection.

“But by this age they should know how to sharpen pencils!” the frustrated teacher protested. “I should not have to teach simple things like lining up and waiting until the teacher is not talking to sharpen pencils.”

“So, the procedure in your room is, ‘when you need to sharpen your pencil, if the teacher is not talking, form a line and sharpen your pencil,’ correct?” I asked.

“Yes,” she said. “It is that simple.”

Indeed it does sound simple. But then I asked the rest of the participants what the procedure was for sharpening pencils in their classrooms. One teacher has the helper of the day to sharpen pencils at the end of each day and put sharpened pencils in a box. To get a sharp pencil, the children were to place their dull pencil into the dull box and get a sharp one from the sharpened pencil box.

Another teacher said he never lets the students sharpen pencils during class because of the noise and distraction of having students line up. “Inevitably, some kid will be standing in line in front of the class to sharpen his pencil and will distract the whole class by clowning around.” As such, he tells the kids they must sharpen pencils before the bell rings or they will be counted tardy. If their pencil lead breaks during class, they better have another pencil ready or borrow from a neighbor.

One teacher protested, “I don’t like them borrowing pencils from each other, so I let them borrow one from me. However, I make them leave an item of value with me so I make sure I get the pencil back.”

Another teacher said we were making a big deal out of nothing, “As long as no one was addressing the class, just let them sharpen their pencils.”

“So,” I said, “clearly there is no National Policy on Pencil Sharpening!”

Imagine that you are a student going to 6 classes per day, plus home room and you have to guess at each teacher’s pencil sharpening procedure. It is going to be difficult enough to remember each one’s procedure once you have gone through the trial-and-error phase of learning the right procedure by doing it wrong enough times.

Now throw into the mix that there are numerous other procedures that teachers do differently: in Mrs. Smith’s class we hand papers in from front to back, in Mr. Jones’ class we hand papers in from right to left, in Mr. Thomas’s class a student helper picks up all papers, Mrs. Santo picks up the papers herself, and in Mr. Washington’s class you just put the papers in the “Finished” basket.

So what is the procedure for lining up, going to the bathroom, going to the nurse, getting a tissue, asking for help, and on and on it goes. And what about dismissal. Does the teacher dismiss or is the bell the signal to leave?

The solution: It is actually pretty simple. Teach procedures and expectations. I encourage teachers to spend a good portion of the first two weeks of school to “direct teach” classroom procedures and expectations. Of course I get the push back that it takes too much academic time. I assure them, and you, that the time invested will be more than made up for in not having to deal with it throughout the semester.

Once the procedures and expectations have been taught, every time a new student moves in, when we come back from a break, or when semesters change, a quick refresher on expectations and procedures will make sure everyone “gets it.” By having well thought-out procedures and expectations taught and practiced, teachers can hold students accountable and time for academic engagement is maximized.

Another important time to revisit procedures is if and when students are consistently not following the procedure. If this happens, either I did not teach the expectation clearly or students are not following it. Either way, let’s re-teach that skill just as we would re-teach an academic concept that the class was not “getting.”

With Spring Break happening now for many schools, you have the opportunity to make the rest of the year run smoother than ever. Think about procedures in your classroom. What is working? What is not? Once you have decided what your procedures are going to be, and why, on your first day back after Spring Break, teach those procedures and expectations to your students. If you consistently hold students to those procedures, they will be more confident and your life will be so much simpler.