1. Manifestation Determination and Bullying
Ally Faasse
Maria DeMauro
Current Issues in Special Education
Summer 2011

2. New HIB Definition
"Harassment, intimidation or bullying" means any gesture,
any written, verbal or physical act, or any electronic
communication, whether it be a single incident or a series
of incidents, that is reasonably perceived as being
motivated either by any actual or perceived characteristic,
such as race, color, religion, ancestry, national origin,
gender, sexual orientation, gender identity and expression,
or a mental, physical or sensory [handicap] disability, or by
any other distinguishing characteristic, that takes place on
school property, at any school-sponsored function [or], on
a school bus, or off school grounds as provided for in
section 16 of P.L.2010, CHAPTER 122, that substantially
disrupts or interferes with the orderly operation of the
school or the rights of other students and that:
I don’t ordinarily read off ppt, but important to fully understand the definition of HIB.

3. HIB Definition Continued
a) a reasonable person should know, under the circumstances, will have the effect of physically or emotionally harming a student or damaging the student's property, or placing a student in reasonable fear of physical or emotional harm to his person or damage to his property; [or]
b) has the effect of insulting or demeaning any student or group of students [in such a way as to cause substantial disruption in, or substantial interference with, the orderly operation of the school]; or
c) creates a hostile educational environment for the student by interfering with a student’s education or by severely or pervasively causing physical or emotional harm to the student.

4. School Discipline
To operate efficiently and effectively, schools must have rules to regulate student conduct
In loco parentis (in place of the parent)
Difference in how we discipline students with disabilities v. typical students
Discipline plans that are written into IEP’s or Section 504 plans preempt a school district’s regular disciplinary code.
What happens when perceived bullying is a result of a student’s disability?
The issues of disciplining students with disabilities has always been an issue.
IDEA Amendments of 1997 addressed the subject of disciplining students with disabilities. Congress added a section to the IDEA that specifically address discipline issues. All students, with and without disabilities, have rights in disciplinary matters based on the due process clause of the 5th and 14th Amendments to the U.S. Constitution.
Judge Daly, in Stuart v Nappi (1978): “ Students with Disabilities are neither immune from a school’s disciplinary process nor are they entitled to participate in programs when their behavior impairs the education of other children…..school authorities can take swift disciplinary measures…against disruptive handicapped students.
In loco parentis- means that teachers and principals have the authority not only to teach but to guide, correct, and discipline the child to accomplish educational objectives. Changes in IDEA 1997 and IDEA 2004 address the area of positive behavior interventions, supports, and services for students with who exhibit behavioral problems. The purpose is to teach appropriate pro-social behavior and increase the likelihood that a student’s success in school and in post school life.
In a few situations general discipline polices must be changed when applied to students in special educaiton. These situations are when the school district’s disciplinary policy a) deprives a student of their special education and related services (i.e. long-term suspensions or expulsions with out providing educational services b) triggers the procedural safeguards of the IDEA (i.e. changes a student’s placement without a change in the IEP or without notice or c) interfes with a student’s IEP, BIP, or Section 504 accommodation plan.
Districts have to be mindful of ensuring that disciplinary practices are nondiscriminatory. All students with mental or physical impairments that affect a major life function are protected from discriminatin under Section 504 of the Rehabilitation Act of 1973 (section 504). This includes students with disabilites who are not covered by the IDEA and students in special education who are covered. This means that all IDEA –eligible special education students are also protected under Section 504.
Discrimination refers to unequal treatment of qualified students with disabilities based solely on the basis of disability. What happens to a student with tourettes?
To ensure that discipline is not applied in a discriminatory manner, and thus violates Section 504, schools officials should:
1. First, schools must use the same disciplinary procedures for student with and without dissabilities. In such situations IEP teams or Section 504 teams should include the school’s regular disciplinary policy in the students IEP or Section 504 accommodation plan.
2. Second schools must conduct manifestation determinations to assess the relationship between a studeents disabilitiy and
misconduct before using long-term suspensions, expulsions, or making changes of placements.
3. Third, administrators must ensure that all school officials and teachers understand the content of the IEP, BIP, or section 504
plans and follow the interventions and disciplinary procedures listed in theses documents.
When there is a suspension involved there are a few kinds.
Short Term, long term and expulsions.

5. The Manifestation Determination
IDEA 2004 requires that within 10 school days of any decision to change the placement of a student with a disability because of a violation of a code of student conduct, the school, the parents, and relevant members of the IEP team (as determined by the parent and school administrator) shall review all relevant information in the student’s file, including the student’s IEP, any teacher observations, and any relevant information provided by the parents.
If the determination is made that the disability was not related to the misbehavior and the IEP is appropriate, the student can be disciplined as any other nondisabled student would be disciplined.
If the team determines that a relationship between behavior and disability existed or that a student’s IEP was not implemented, the student may not be expelled, although school officials will still be able to initiate change-of-placement procedures.
The purpose of this review will be to gather information necessary to conduct a manifestation determination. The reasoning behind the manifestation determination is that students should not be denied special education services because of misbehavior that could be anticipated as a result of their disabilties.
Manifestation determinations may not be made by administrators or school officials who lack the necessary expertise to make special education placement decisions.
When conducting the test, the IEP team shall consider the behavior subject to the disciplinary action and relevant information, including evaluation and diagnostic results and the student’s IEP and placement.
All decisions must be based on an individualized inquiry informed by up-to-date evaluation data. Data collection procedures should include review of records of past behavioral incidences, interviews, direct observations, behavior rating scales, and standardized instruments.
The burden of proof really is placed on the school when discipline requires any change of placement to a student who is classified or is covered under Section 504.
Finally, the team must consider any other relevant information supplied by the student’s parents.
The most powerful piece of the puzzle. If a parent has expressed behavioral concerns to the school about their child with disabilities in the past and has gone on record as saying that the student has not shown good judgment in decision making then they have a good leg to stand on when questioning appropriate disciplinary measures.

6. Why are there special rules about discipline for students with disabilites?
Protections regarding discipline are in place to prevent speculative and subjective decision making by school officials
To ensure students are not being excluded from the classroom due to their behavior
To regulate the removal of a child from his or her placement for disciplinary reasons
Amount of time child can be removed
Parental objections to proposed actions
Requests of due process hearing

7. Does IDEA contain provisions that promote proactive upfront measures that will help prevent discipline problems?
Staff development activities and improved pre-service training programs emphasizing early identification and appropriate interventions
If the child’s behavior interferes with their learning or the learning of others, the IEP team will:
Consider strategies and supports to address behavior
Add services to the IEP and begin to provide said services

8. Can a child with a disability who is experiencing significant disciplinary problems be removed to another placement?
Parents and schools in agreement-(best case scenario)
Students can be removed for up to 10 school days at a time
Beginning on the eleventh day, the school must provide the student with the necessary instruction in line with their IEP goals
If parents do not agree to a placement change, schools can continue their course of discipline as long as their disciplinary actions are consistent and in line with the treatment of their nondisabled peers
Alternative educational placements can occur for 45 days if the student
Brings a weapon to school
Possessed, used, or sold drugs, or
Is likely to injure themselves or others
Lastly, a court order can be obtained if the schools seek to completely remove a student if they feel their current educational placement is detrimental to themselves or others

9. Does the IDEA or its regulations mean that a child with a disability can never be suspended for more than 10 school days at a time or expelled for behavior that is not a manifestation of his or her disability?
If the behavior has been determined to not be a manifestation of the child’s disability, they can be disciplined the same as their nondisabled peers
The exception is that educational services must still be provided for the student to progress towards their IEP goals

10. Great example of a special needs student who’s “bullying” is a direct result of his disability.

11. References
Moore, M. (2009, October 24). Bullied out of class: parents pull autistic son from school due to taunts, hazing. Retrieved from Rutgers Safe and Drug-Free Schools and Communities Project in Cooperation with State of New Jersey Department of Education, Harassment, intimidation and bullying prevention and intervention strategies for administrators, Wright, P.W.D., & Wright, P.D. (2009, May 4). Discipline for children with disabilities: questions and answers from osep. Retrieved from Yell, M., The law and special education, (2006), Upper Saddle River, New Jersey 07458: Pearson Education, Inc.