LEGAL MECHANISMS FOR PREVENTING THE EXCLUSION OF STUDENTS WITH DISABILITIES Olivia Enders CUESEF, 2019
Objectives ■ Connect exclusionary disciplinary practices to the school to prison pipeline ■ Understand the law as it relates to exclusionary discipline ■ Define manifestation determination and outline the procedure and function ■ Problematize manifestation determination ■ Provide strategies for advocacy for students with disabilities
Definition – Exclusionary Discipline Exclu Ex lusionary ■ Discipline which removes or excludes a student from the Discipli Di line students’ usual educational setting Suspension ■ Goal is to punish undesired -In-School behaviors, deter similar -Out of School behaviors, promote appropriate - behavior Expulsion or removal https://supportiveschooldiscipline.org/learn/refere nce-guides/exclusionary-discipline
Why does this matter? ■ Overrepresentation of students with disabilities who are excluded from school – Suspended twice as often as often as their general education peers (U.S. Department of Education Office for Civil Rights, 2014) – This may be an underestimate! ■ Exclusionary discipline strengthens school-to-prison pipeline – Statistically significant association between experiences of exclusionary discipline, subsequent justice system contact (Novak, 2018) – Experiencing discipline is associated with increases that a student will drop out, which is associated with experiencing incarceration
Understanding the Law ■ Individuals with Disabilities Education Act (IDEA) of 2004 – Least Restrictive Environment – Free and Appropriate Public Education – Protection from exclusionary discipline practices
Protection from Exclusion - Section 300.530 ■ (b) Gen Gener eral . (1) School personnel under this section may remove a child with a disability who violates a code of student conduct from his or her current placement to an appropriate interim alternative educational setting, another setting, or suspension, for not more than 10 consecutive school days (to the extent those alternatives are applied to children without disabilities), and for additional removals of not more than 10 consecutive school days in that same school year for separate incidents of misconduct (as long as those removals do not constitute a change of placement under § 300.536). ■ (c) Additional a authority . For disciplinary changes in placement that would exceed 10 consecutive school days, if the behavior that gave rise to the violation of the school code is determined not to be a manifestation of the child’s disability pursuant to paragraph (e) of this section, school personnel may apply the relevant disciplinary procedures to children with disabilities in the same manner and for the same duration as the procedures would be applied to children without disabilities ■ THEY CAN DENY A FREE AND APPROPRIATE EDUCATION!
Manifestation Determination Review (MDR) ■ (e) Manifestation d determi mination . (1) Within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct, the LEA, the parent, and relevant members of the child’s IEP Team (as determined by the parent and the LEA) 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— ■ (i) If the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability; or ■ (ii) If the conduct in question was the direct result of the LEA’s failure to implement the IEP.
So, what’s that mean? ■ Schools must determine whether the behavior is a manifestation of the disability IF: – Change in placement/exclusionary discipline is longer than 10 consecutive days – Series of removals constitutes a pattern or exceeds 10 cumulative school days – Removal from a program to an alternative educational setting is proposed ■ Key questions include – Is the behavior related to the disability? – Is the behavior related to a failure to implement a child’s Individualized Educational Plan? Knudsen, M. E., & Bethune, K. S. (2018).
Required Members of the MDR Team Local education agency representative (principal, director of special education) Parent/guardian Relevant IEP Team Members (special education teacher, general education teacher, etc.) Knudson & Bethune, 2018
What’s a manifestation, really? ■ Attempt to assess ”cause” of behavior, but this is ambiguous! ■ Manifestation Determination as a Golden Fleece, Katsiyannis & Maag, 2001 – Conceptually, methodologically flawed – Serves more of a political purpose than an educational one – Logically impossible unless there is a known physical cause – Disability categories are socially defined, socially negotiated, but the process of making this “determination” is based on a medical model – No empirically validated methods – Serves function of excluding students, despite intent of law
Consider this: Emotional/Behavioral Disorders are defined in IDEA 2004 as “…a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child’s educational performance: (A) An inability to learn that cannot be explained by intellectual, sensory, or health factors. (B) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers. (C) Inappropriate types of behavior or feelings under normal circumstances. (D) A general pervasive mood of unhappiness or depression. (E) A tendency to develop physical symptoms or fears associated with personal or school problems.”
Case Study & Personal Experiences ■ Walker & Brigham (2017) studied MDR process using case studies – Implicit bias about “bravado”, “gang involvement” – Use of conjecture – Do we assume manifestation and prove otherwise, or vice versa? ■ Burden should be on school to prove it was not – Process yielded inconsistent results ■ Suspension of student with LD – Overview of disciplinary incident – Determination of manifestation – Consequences
Recommended Questions ■ Does the student possess the requisite skills to engage in an appropriate alternative behavior? ■ Is the student able to analyze the problem, generate solutions, evaluate their effectiveness, and select one? ■ Does the student interpret the situation factually or distort it to fit some existing bias? ■ Can the student monitor their behavior? (Katsiyannis & Maag, 2001; Knudsen & Bethune, 2018)
Strategies for Advocating ■ Actively participate in the team – ask to be involved ■ Call into question determinations that suggest behavior was not related to the disability ■ Advocate for more robust services – Increased collaboration – Changing elements of the environment (analyzing antecedents) – Counselors – Board-Certified Behavior Analysts – Training & support for teachers ■ Advocate for restorative justice – How can we address the harm? Restore & heal?
References Individuals with Disabilities Education Act, 20 U.S.C. § 1400 (2004) Katsiyannis, A., & Maag, J. W. (2001). Manifestation determination as a golden fleece. Exceptional Children; Reston , 68 (1), 85–96. Knudsen, M. E., & Bethune, K. S. (2018). Manifestation Determinations: An Interdisciplinary Guide to Best Practices. TEACHING Exceptional Children , 50 (3), 153– 160. https://doi.org/10.1177/0040059917745653 Novak, A. (2018). The association between experiences of exclusionary discipline and justice system contact: A systematic review. Aggression and Violent Behavior , 40 , 73–82. https://doi.org/10.1016/j.avb.2018.04.002 Walker, J. D., & Brigham, F. J. (2017). Manifestation Determination Decisions and Students With Emotional/Behavioral Disorders. Journal of Emotional and Behavioral Disorders , 25 (2), 107–118. https://doi.org/10.1177/1063426616628819
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