Navigating the Gray Area: A School District's Documentation of the Relationship Between Disability and Misconduct
by Maria M. Lewis - 2018
Background/Context: The administration of student discipline is one of many responsibilities under the purview of teachers and educational leaders across the country. Maintaining a safe environment with minimal disruptions is not an easy task. From existing research on student discipline, we have learned that critical examination of data and continuous reflection are important, particularly in light of documented disparities in discipline practices. Under the Individuals with Disabilities Education Act (IDEA), before a school district may discipline a student with a disability for greater than 10 days, it must first conduct what is referred to as a manifestation determination review (MDR) (20 U.S.C. ß1415(k)(1)(E)). During this review process, the current version of the law requires school districts to address two questions: (1) Was the studentís behavior caused by, or did it have a direct and substantial relationship to, the studentís disability? (2) Was the studentís misconduct caused by the districtís failure to implement the studentís individualized education program (IEP), as required by law? This study examines the implementation of this standard.
Research Question: This study poses the following research question: What factors (explicit and implicit) influence decision makers when deciding whether a studentís misconduct was a manifestation of his or her disability?
Research Design: This project used a case study approach to examine 80 MDR decisions in one large urban school district in order to better understand how decision makers implement this standard. Specifically, this study reviewed 40 randomly selected decisions wherein decision makers determined that the studentís actions were not a manifestation of his or her disability and 40 randomly selected decisions wherein decision makers determined that the studentís actions were a manifestation of his or her disability.
Findings/Results: Decision makers cited the academic and behavioral manifestations of studentsí disabilities, studentsí behavioral histories, studentsí ability to control their actions, and connections to the home and community. Despite these consistent factors, the striking similarities between Yes and No decisions illustrates the overall arbitrary nature of the decision-making process.
Conclusions/Recommendations: This article discusses implications that attend to both the procedure and substance of manifestation determination review.
The administration of student discipline is one of many responsibilities under the purview of teachers and educational leaders across the country. Maintaining a safe environment with minimal disruptions is not an easy task. From existing research on student discipline, we have learned that critical examination of data and continuous reflection are important, particularly in light of documented disparities in discipline practices (e.g., Losen, 2014; Skiba, Michael, Nardo, & Peterson, 2002; U.S. Department of Education, 2014).
Since the passing of the Education for All Handicapped Children Act of 1975, educational stakeholders have been concerned about the practice of disciplining a student for actions that bear a close relationship to the students disability (Honig v. Doe, 1988), an outcome that runs counter to the Individuals with Disabilities Education Acts (IDEA, 2004) emphasis on equity (Mead, 1999). Later iterations of the law sought to address this issue. Specifically, under IDEA, before a school district may discipline a student with a disability for greater than 10 days, they must first conduct what is referred to as a manifestation determination review (MDR) (IDEA, 2004, 1415(k)(1)(E)). During this review, the current version of the law requires participants to address two questions: (1) Was the students behavior caused by, or did it have a direct and substantial relationship to, the students disability? (2) Was the students misconduct caused by the districts failure to implement the students individualized education program (IEP), as required by law (IDEA, 2004, 1415(k)(1)(E)(i))? This study examines the implementation of this standard, placing particular emphasis on the first question.
MDR is important because the outcome controls the disciplinary options available to school districts (IDEA, 2004, 1415(k)(1)(f)). If these decision makers find that a students misbehavior was not a manifestation of the students disability, the district is free to discipline the student according to the student code of conduct that applies to all students (IDEA, 2004, 1415(k)(1)(C)). The exception to this freedom is the requirement that students with disabilities, including those who have been expelled from the school system, are entitled to educational services (IDEA, 2004, 1412(a)(1)(A)). However, such services need not replicate those that students would receive in the traditional classroom setting (U.S. Department of Education, 2006, p. 46716). Furthermore, manifestation determinations have the potential to create segregated learning environments in the provision of postexpulsion services if such services are not also provided to students without disabilities. As a result, the outcome of a manifestation determination has implications for both the quality of instruction and the location in which the school district provides instruction. Alternatively, if the team determines that the students misbehavior was a manifestation of the students disability, with a few exceptions, the law requires that the student return to the setting where the incident occurred, and no sanctions are imposed on the student. The exceptions include an agreement between the school district and the parents regarding a change in placement, or special circumstances involving weapons, illegal drugs, or serious bodily injury (IDEA, 2004, 1415(k)(1)(F)-(G)).
Research in the area of MDR is also important in light of research findings related to special education identification, placement and discipline (Harry & Klingner, 2006; Losen & Orfield, 2002; Skiba et al., 2002; Skiba, Poloni-Staudinger, Gallini, Simmons, & Feggins-Azziz, 2006; U.S. Department of Education Office for Civil Rights, 2014). Students of color and male students are often overrepresented in special education, face a greater risk of being placed in more restrictive environments, and face more severe discipline than their classmates. As such, some demographic groups are more likely to encounter manifestation determinations in their academic careers. Therefore, a study that explores how school districts apply the legal requirements of MDR is a crucial component of understanding how and why these trends occur. Existing MDR literature provides clarification on the legal requirements or analyzes case law in the area of MDR (Arnberger & Shoop, 2006; Katsiyannis & Maag, 2001; Knoster, 2000; Smith, 2000; Yell, Rozalski, & Drasgow, 2001; Zilz, 2006; Zirkel, 2006, 2010). Building on this body of research, this study is the first to explore the implementation of MDR at the school district level. The purpose of this study is to better understand how school districts interpret and apply the standard set forth in the law. Given the impact that the outcome of a manifestation determination can have on a students placement and educational experience, this study poses the following research question: What factors (explicit and implicit) influence decision makers when deciding whether a students misconduct was caused by his or her disability?
This article begins with a review of relevant literature. The second section provides an introduction to the policy framework. The third section includes the research design and methodology. The fourth section is a presentation of the findings, which illustrate the procedural and substantive elements of the policy as implemented. The fifth section involves a discussion of the findings, including an analysis of the complexity inherent in the legal standard and its susceptibility to arbitrary implementation. The final section discusses the implications for practice and professional development.1
The majority of scholarly work in the area of MDR is intended to explain or clarify the legal requirements or to provide recommendations to administrators (Katsiyannis & Maag, 2001; Knoster, 2000; Yell et al., 2001). Katsiyannis and Maag (2001) discussed the manifestation determinations social solution to a medical problem and recommended the following model for making a manifestation determination:
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 his behavior? (p. 93)
This represents what Katsiyannis referred to as a more functional approach to MDR. The suggested approach was motivated by a concern that the laws subjective requirement is vulnerable to inconsistent and inaccurate results.
While MDR research from the perspective of decision makers is limited in the literature, some researchers have explored manifestation determinations through an analysis of case law. Although in a broader special education discipline context, Smith (2000) used the law as a framework to gauge school district competency to address the 1997 amendments to IDEA, which included the laws first disciplinary provision. Smiths study included 23 legal decisions in which manifestation determinations served as the primary issue. In 13 of those cases, the school district failed to provide a manifestation determination, an error that resulted in school districts being required to properly conduct an MDR in nine out of the 13 cases. However, under circumstances where school districts complied with the procedural requirements of the law, their decision making was most often upheld.
Through a mixed-methods examination of case law from 1994 to 2003, Zilz (2006) sought to understand the impact that the 1997 version of IDEA had on the frequency, substance, and outcomes of cases related to manifestation determinations. Zilz found that most cases88 out of 99were resolved on procedural grounds. Almost 50% of the cases involved inappropriate procedures. These results demonstrate a general lack of awareness and the need for guidance in how to make a manifestation determination decision.
Arnberger and Shoop (2006) responded to this need in their publication of the The Principals Guide to Manifestation Determination, an informative article that serves to guide administrators through the use of examples. The authors summarized three hearing officer decisions that upheld school district decision making, five decisions that overruled school district decision making, two dealing with substantive concerns, and three decisions in which procedural errors occurred. The article included recommendations for practice for administrators: participate in training surrounding the procedural requirements of special education law, have at least one administrator attend all IEP meetings, demand that functional behavioral assessments take place so that IEP teams can develop appropriate intervention plans, encourage positive behavior through the use of rewards, create a discipline policy that is neither arbitrary nor capricious, and keep documentation of all aspects of development and implementation of an IEP.
Zirkel (2006) identified a gap in existing research. He argued that the research leans toward providing guidance for best practice, without proper regard for the legal requirements related to manifestation determinations. He maintained that the education law research on MDR was incomplete in that it was either out of date or lacked thorough analysis of manifestation determinations as a separate legal requirement worthy of individualized attention. On the other hand, special education literature tends to confuse, or at least fails to differentiate between best practices and legal requirements (p. 3). In fact, Zirkel noted that some special education research bases its recommendations on erroneous interpretations of IDEAs legal requirements.
Consequently, Zirkel (2006) sought to fill the void in existing literature by providing a comprehensive legal analysis of MDR. Zirkels study sought to provide a thorough examination of all law addressing manifestation determinations. The study included all relevant case law and statutory provisions from 1975 until 2006. In both the federal statutes and relevant case law, Zirkel found a shift away from an emphasis on impulsivity as a factor to consider for all students. Contrary to expectations, Zirkel did not discover a frequency of cases involving students labeled as having an emotional disturbance (ED) in which the students actions were found to be a manifestation of the students disability. In fact, Zirkel described the outcomes as not clearly predictable (p. 11). Overall, Zirkel maintained that although, as the U.S. Department of Education has correctly observed, the criteria make a no outcome easier, and individualized determinations appear to remain the key, with intervening factors including who is the hearing or review officer or judge and who are expert witnesses (p. 11).
Zirkel revisited the issue of manifestation determinations in 2010 through a comprehensive analysis of all administrative hearing decisions and court decisions after the new manifestation determination reivew provision was implemented with the reauthorization of IDEA in 2004. Zirkel found that approximately 65% of the case law resulted in decisions that favored school districts. In only five out of 14 decisions did a hearing officer find that the students actions were a manifestation of that students disability. The most common disability categories represented in the case law were specific learning disability (SLD), attention deficit disorder (ADD), and oppositional defiant disorder (ODD). The most common types of conduct leading to manifestation determinations were violence (fighting/assault) and drugs. Hearing officers and judges most were most often persuaded by burden of proof arguments that placed the burden on the parents, the deference afforded to school district witnesses versus experts brought by parents, and the relationship between impulsive or purposeful behavior.
Most recently, in 2016, Walker and Brigham studied MDR through the use of two hypothetical scenarios. The two scenarios were designed to represent each of the possible outcomes for MDR: yes, the students actions were a manifestation of his or her disability, and no, the students actions were not a manifestation of his or her disability. The authors sought to understand how participants valued information during the decision making process. Moreover, they sought to compare the reasoning of special educators and general educators. Each team involved two special education teachers and two general education teachers. For the scenario designed to lead to a Yes determination, the most commonly mentioned items influencing decision making included the students home life, history of physicality, student success with controlling his emotions, and current FBA/BIP (p. 8). These factors were grounded in the facts provided to participants. For the No scenario,
during the preferred non-manifestation case studies, assumptions, rather than facts, about the student prevailed. These included classifying the students behavior as impulsive, opinions about the students LRE [least restrictive environment] placement, concluding that the teacher provoked the student, and asserting that the student acted out because he was showing off in front of peers. (p. 8)
From existing research, we have gained an understanding of a subset of manifestation determinations, those that involve a legal challenge brought by parents. Furthermore, research that focuses on case law provides insight into the ways that courts address manifestation determinations, a related but distinct research question from the ones presented in this study. The study that is the focus of this article builds on existing research through an examination of a sample of MDR decisions made in one large urban school district. This study provides insight into the implementation of the legal standard to better understand how decision makers determine whether a students actions were a manifestation of his or her disability.
Because the law dictates what school districts must do in regard to MDR, the law will serve as the primary framework for this study. The law is explicit as to the MDR process. However, because implementation of the law includes some subjectivity, IDEAs policy goal of achieving equity will fill in the gaps in the laws specificity. Therefore, where the law provides specific requirements, the framework will inform an understanding of school districts tendency to implement the letter of the law. Where the law lacks specificity, the policy behind the law will help to examine school districts tendency to honor the intent of the law (Figure 1).
Figure 1. Policy Framework
Historically, students with disabilities were systemically denied educational services. In response, Congress enacted the Education for All Handicapped Children Act of 1975 (EAHCA, 1975). In 1997, Congress amended the federal statute through the Individuals with Disabilities Education Amendments Act (IDEA, 1997). Unlike the prior version of the law, the 1997 reauthorization of the law included a disciplinary provision. The law required MDR in instances where a disciplinary action may result in a change in placement greater than 10 days. The 1997 version of the law presumed that a students actions were a manifestation of his or her disability. For a student to face potential disciplinary action, the onus was on the school district to prove a number of factors.
Changes in the disciplinary provision accompanied the 2004 Reauthorization of IDEA. The new standard uses a more simplified, common sense procedure for schools to use in making the actual manifestation determination (Senate Report, 2003). According to the Congressional Report, [u]nder the 1997 law, schools were forced to prove a negative: that a childs behavior was not a manifestation of his or her disability based upon a complicated set of factors. Many schools found this test to be confusing and unfair (p. 44).
The 2004 version of the law included a number of changes that affect MDR. In contrast to the prior versions requirement that all IEP team members participate, the law now requires that the team of decision makers only include the local educational agency, the parent and all relevant members of the IEP team (as determined by the parent and the local educational agency) (IDEA, 2004, 1415(k)(1)(E). Additionally, the law is less specific than the 1997 version of the law in regard to the information that decision makers must review. Specifically, the law no longer requires school districts to consider evaluation and diagnostic results, and placement. The law requires that decision makers review all relevant information in the students file, including the childs IEP, any teacher observations and any relevant information provided by the parents (IDEA, 2004, 1415 (k)(1)(E)). The new criteria require school districts to determine if the conduct in question was caused by, or had a direct and substantial relationship to, the child's disability; or if the conduct in question was the direct result of the local educational agency's failure to implement the IEP (IDEA, 2004, 1415(k)(1)(E)).
In the event that decision makers find that a students misconduct is a manifestation of his or her disability, the IEP team must conduct a functional behavioral assessment and execute a behavioral intervention plan if the IEP team has not already done so. Although IDEA does not define the terms functional behavioral assessment or behavioral intervention plan, provisions related to the development of the IEP require that the IEP team consider the use of positive behavioral interventions when a students behavior interferes with his or her own learning or the learning of others (IDEA, 2004, 1414(d)(3)(B)(i)). Additionally, the section of IDEA that addresses MDR is the only section of the law that mentions a functional behavioral assessment (IDEA, 2004, 1415(k)(1)(F)). This lack of clarity further complicates a school districts ability to address behavioral concerns both before and after MDR.
Nonetheless, if the child already has a behavioral intervention plan, the IEP team must make adjustments to address the behavior in question. Furthermore, with limited exceptions, the student must be returned to the prior placement in the event that conduct is found to be a manifestation of the students disability. The exceptions include parent and school district agreement to a change in placement and conduct involving guns, drugs, and serious bodily injury. These circumstances permit 45-day removal without regard to whether the misconduct is found to be a manifestation of the students disability (IDEA, 2004, 1415(k)(1)(G)).
Drawing from both the letter and intent of the law, this framework provides a multidimensional conceptual framework that guided data collection and analysis for this study. With a focus on equity, the combined framework provides a lens to foster a deep understanding of the external and internal factors that affect the outcomes of MDR in one large urban school district.
RESEARCH DESIGN AND METHODOLOGY
Consistent with the case study approach, this research used qualitative methods to better understand the factors that affect decision makers during MDR. As stated by Merriam (1998), [d]ocuments of all types can help the researcher uncover meaning, develop understanding, and discover insights relevant to the research problem (p. 118). The original design of this study involved a review of paperwork associated with 30 decisions and interviews with school personnel who participated in the MDR decision making process during the 20122013 school year. However, as a condition of approval to conduct the study in the school district, interviews were not permitted to take place during normal work hours. After conversations with a point of contact at the school district, it became apparent that these restrictions would limit the availability of interviewees, thereby creating a skewed sample. Consequently, the design was amended to account for contextual factors. More specifically, the new design included a review of paperwork from 80 MDRs, 40 in which school district personnel determined that the students misconduct was a manifestation of his or her disability, and 40 in which the school district determined that the misconduct was not a manifestation of the students disability. The school district generously redacted the paperwork in compliance with the Family Educational Rights and Privacy Act (FERPA). To gain a well-rounded understanding of the MDR process, I also requested MDR training materials from the last five years. Following review of paperwork, an interview was conducted with both the director of special education and the manager of the Office of Student Services. This interview sought to triangulate data gathered and analyzed during document review.
A case study is appropriate for the present study because the research question is answered best through an in-depth exploration of a bounded system based on extensive data collection (Creswell, 2008, p. 476). According to Merriam (1998), the case study design is most appropriately utilized when the study poses how and why questions, manipulation of participant behavior and variables is not desirable, and the intended outcome is a holistic, intensive description and interpretation of contemporary phenomenon (p. 9). Although the present study examined the factors that influence decision makers, the research question is a part of an overarching question that asks how decision makers determine whether a students actions were caused by his or her disability. Furthermore, according to Merriam (1998), the end product of the case study is a rich, thick description of the phenomenon under study (p. 11).
The case was comprised of one large urban school district. The decision to construct the study in this manner stemmed in part from a desire to gain insight from a large and diverse sample of diverse decisions. Because the makeup of a team may be different depending on the student, a large sample of decisions provided a more representative perspective on manifestation determinations. Furthermore, urban school districts take disciplinary action more often than suburban or rural school districts. Consequently, school personnel in an urban school district likely have more experience with MDR.
Before data collection, I contacted a large urban school district to determine if the school district was willing to participate in my study. The initial correspondence was fairly informal. We discussed the benefits to the school district and the possibility of obtaining MDR paperwork and IEP cover pages from all manifestation determinations conducted during the 20122013 school year. We discussed the importance of compliance with special education law and the benefit of understanding districtwide practice from a professional development standpoint.
The individual responsible for coordinating research projects in the school district directed me to submit a formal proposal to the school district. The school district required approval from the institutional review board at my institution. Concurrently, the institutional review board desired approval from the school district. Consequently, the IRB granted conditional approval, pending approval from the school district.
Because this study involved a vulnerable population, students with disabilities, protecting student identity was a priority for the IRB, the school district, and me as a researcher. Student identity was irrelevant to the study; therefore, seeking unredacted paperwork would have unnecessarily exposed students identities. Furthermore, access to unredacted paperwork would have required the consent of all parents, a requirement that would have undoubtedly affected the amount of paperwork available for review and would have likely extended the timeline of the study. Therefore, the decision to use redacted paperwork served a dual purpose: It preserved students anonymity and maximized the volume of paperwork to review without significant delay in the process.
Document review involved multiple stages; paperwork was reviewed numerous times in each stage. As an introduction to the sample, initial review of decisions examined all 80 decisions in their entirety. This initial review revealed broad, sweeping patterns in documentation. During the second stage, particular attention was paid to the ways in which decision makers documented their rationale for deciding that a students actions were or were not a manifestation of a students disability. Themes emerged after reviewing this portion of the paperwork multiple times. Because this study seeks to understand how decision makers decide whether a students actions were a manifestation of his or her disability, this stage of the process provided a foundation for answering the research questions posed in this study. The third stage of the review process focused on each aspect of the paperwork in isolation. For example, all decisions were reviewed to determine the ways in which decision makers document the role of the students IEP in the decision making process. These three stages exposed patterns in decision making.
The fourth stage of the review process sought to identify examples to illustrate the ways in which decision makers support their decisions. This fourth review of decisions also permitted a holistic reexamination of the trends that emerged during the first three stages. As a result, during Stage 4, the factors identified in Stages 13 served as a framework for understanding all decisions in their entirety.
Following document review, an interview was conducted with a school district contact and the special education director. Because of district time constraints, interviewees were unable to participate in separate interviews. There are strengths and disadvantages of conducting one interview with both participants rather than two separate interviews. Together, interviewees have the opportunity to comprehensively and collaboratively triangulate the findings. However, a combined interview removes the possibility of uncovering any inconsistencies between interviewees understanding of MDR districtwide. Nonetheless, although there are distinct advantages to conducting separate interviewees, a combined interview helps to ensure that the findings from the paperwork are accurately represented. Furthermore, the interviews provide greater context for understanding districtwide practices.
In addition to restrictions on the manner in which the interviews were conducted, the district requested that interview questions be submitted in advance of the interviews. Presumably based on the litigious nature of special education and the sensitive nature of MDR, interviewees wanted a chance to construct their answer before the interviews. Furthermore, interviewees sought review of responses to interview questions by an individual who deals with media and public relations. Although this approach to interviews has drawbacks, mainly that it captures interviewees rehearsed knowledge of MDR districtwide, giving interviewees the opportunity to ponder their answers in advance of the interviewees allowed them to research district practices, thereby providing greater depth and information during the interview.
Questions posed to interview participants were more general in nature. The interview began with questions related to professional development opportunities on the topic of MDR. These preliminary questions aimed to better understand school district familiarity with MDR and related training, including training opportunities at the state level.
The next stage of questions sought to answer questions that were raised during the review of paperwork. For example, many decisions involved school personnel with similar titles. This finding led to a question regarding how decision makers are selected to participate in MDR. Additionally, some decisions used a framework to guide the analysis, whereas others did not. Because the framework was not apparent in the training materials that were reviewed, a question was posed to interviewees about the origin of this framework.
The third stage of the interview directly addressed the relationship between the students disability and the misconduct under review. Interviewees were asked how decision makers make this determination. Additionally, interviewees were asked what they thought is the most important factor when deciding whether a students actions were caused by, or had a direct and substantial relationship to, his or her disability.
The fourth and final stage of the interview focused on the districts understanding of its own practices. This part of the interview process asked questions about the number of appeals, district data-keeping practices and use, strengths and areas of improvement, and how district practices compare with those of other school districts.
It is important to note that although direct observation of manifestation determination hearings would be an ideal approach to collecting data, it is an impracticable mode of data collection because of the highly personal nature of the information revealed during these reviews. Based on these concerns, and even though all documents had been redacted to remove personally identifying information, the confidentiality of the information was ensured by storing all data in a locked file box. To further maintain confidentiality, terminology unique to the school district has been removed and replaced with generic language to prevent identification of the school district. This includes legal terminology that may be unique to the state or school district. In these circumstances, federal terms will be used. These concerns are accounted for in the presentation of findings in the following section.
With respect to the substance of the paperwork, this section will present themes that arose during an extensive examination of the 80 decisions in the sample. Each of the findings extracted from the paperwork contributes to a deeper understanding of the factors that influence decision makers during MDR as the process is implemented in one large urban school district. Overall, the sample decisions revealed inconsistencies associated with the implementation of manifestation review.
OVERVIEW OF DECISIONS
To permit a manageable analysis of district practices, this study involved review of paperwork associated with 80 decisions (11% of the total number of decisions in one academic year)40 in which the team found the students misconduct to be a manifestation of the students disability, and 40 in which the team found that the students misconduct was not a manifestation of the students disability. The sample was 15% female and 85% male. Black students accounted for 87.5% of the students in the sample, whereas White students, Hispanic students, and Asian students accounted for 7.5%, 2.5%, and 1%, respectively. These percentages are in stark contrast to the district population generally, particularly for Black students, who are substantially overrepresented in the sample. To prevent identification of the school district and to preserve confidentiality, specific districtwide demographic data are not provided. The demographic breakdown of decisions is provided in Figure 2.
Figure 2. Student Demographics by Decision Outcome
The most common disability represented in the 80 decisions was other health impairment, with 32 students meeting the eligibility criteria (15 No, 17 Yes). Nineteen of the students were identified as having an emotional disturbance (ED) (5 No, 14 Yes). The third most common disability was a specific learning disability (SLD), with 11 students (10 No, 1 Yes). Five reviews involved students with a cognitive disability (CD) (2 No, 3 Yes). Some students were eligible for special education under multiple disability categories. Consequently, some individual students are represented more than once in the preceding categories. The decision to organize the data in this manner was validated by interviewees, who stated that they believe decision makers pick and choose which disability category to focus on during the review process. In 22 of the 80 decisions, the disability was unclear. These 22 decisions with unknown disabilities included 10 under the No decisions and 12 under the Yes decisions.
Figure 3. Number of Decisions by Disability Category
Although the MDR process also applies to circumstances in which a students aggregate misconduct amounts to a greater than 10-day removal from school, many decisions in the sample involved an individual instance of misconduct that, alone, was sufficient to constitute a 10-day removal. In many decisions, the paperwork explicitly referenced the districts discipline code and characterized the misconduct as an expellable offense. The incidents under consideration primarily involved violence or altercations with staff and students, weapon possession, or drugs.
WHO ARE DECISION MAKERS?
The law requires the team of decision makers to include the local educational agency, the parent and all relevant members of the IEP team (as determined by the parent and the local educational agency) (IDEA, 2004, 1415(k)(1)(E). In general, special education administrators and building administrators served as the representative of the local educational agency. Fifty-seven of the 80 decisions included a special education administrator, who, according to interviewees, was responsible for leading the meeting. Thirty-two decisions involved a principal, assistant principal, or other building-level administrator. In most instances, building-level administrators took the place of special education administrators, although some decisions involved both special education administrators and other administrators such as a principal or an assistant principal. The core team of decision makers in all but one decision in the sample included a general education teacher and a special education teacher. Consistent with IDEAs emphasis on parental involvement, a parent or family member was present in 67 of the 80 decisions. Paperwork documented efforts to contact parents, including those decisions that did not involve parents. Students were involved in 33 of the 80 decisions. In 12 of the 80 decisions (6 No, 6 Yes), neither a parent nor a student was present for the decision.
Additional decision makers were much less common. For example, a school psychologist was present for six of the decisions. A school social worker was present for only four of the decisions in the sample. Similarly, a speech and language pathologist participated in four decisions. Other individuals participating in decisions included service providers, service coordinators, and interpreters. The findings presented thus far represent the general information regarding the sample. The remainder of this section will focus on the content of the paperwork.
SUBSTANCE OF THE PAPERWORK
The district paperwork specifically asks decision makers to describe all information considered during MDR. The document requires school districts to answer the two questions posed by IDEA: Did the behavior have a substantial relationship to or cause the misconduct? Was the behavior a direct result of the school districts failure to implement the students IEP? A check box is provided next to each question. Generally, below each one of these questions is a space to provide justification. It is worth noting that only one decision indicated that the students actions were the result of the school districts failure to implement the IEP. However, on further review, it was determined that this was likely a clerical error. In fact, the information provided that the students actions were caused by, or had a direct and substantial relationship to, the students disability, but this box was not checked. As a result, the findings presented in this article stem from decisions that hinged on the relationship between the students disability and misconduct, rather than whether the IEP was implemented with fidelity.
The district form includes a section that directs the team to document consideration of all relevant information in the students file. Consistent with the legal standard, following this prompt, the team is provided with four separate boxes dedicated to specific data sources, including the students IEP, teacher observations of the student, relevant information provided by the parents, and other relevant information. Each box provides a space for team members to document consideration of information gathered from each source.
In those decisions in which the team of decision makers determined that the students actions were not a manifestation of the students disability, teams often used a narrow interpretation of the students disciplinary history or emphasized the students ability to control or understand the behavior. Other No decisions described how the students disability or the behaviors associated with the students disability were distinct and unrelated to the misconduct in question. Similar to the No decisions, Yes decisions focused on the students behavioral history, control, or understanding and the relationship to the disability. However, unlike the No decisions, these concepts were more broadly understood.
Some decisions summarily dismissed the connection between the students disability and the misconduct in question, without providing documentation of the reasons underlying the determination. [Students] disability had nothing to do with the behavior demonstrated. The team agrees the incident does not have a direct and substantial relationship to the students disability. This lack of analysis appeared in Yes decisions as well. The remainder of this section will explore the themes that emerged during a review of the paperwork.
Academic and Behavioral Manifestations of Disability
Although some decisions included very little analysis, others either explicitly or implicitly relied on guiding questions. For example, some decisions included the following prompt: What are the observable manifestations of this disability for this student as reported by individuals knowledgeable about this disability? In regard to the content of the IEP, some decisions provided direct quotations from the students IEP. Others detailed the students IEP without explicitly referencing the question posed in the framework.
Some No decisions described the students disability in terms of academic behavior, such as one that affects alertness, concentration, or information processing or that leads to distractions. At first glance, drawing attention to these nonaggressive, academic behavioral manifestations appears to create a distinction between characteristics that are associated with the kind of behaviors that are often subject to MDR and those that are not. However, these considerations were evident in Yes decisions as well. For example, a student with a hearing impairment was described as having significant bilateral hearing loss and subsequent language delay. He is functioning independently at a mid-3rd-grade reading level. . . Despite the seemingly benign behavioral effect of the students hearing impairment based on this description, the team of decision makers determined that alcohol possession was a manifestation of this particular students disability.
A second noteworthy theme that emerged in both Yes and No decisions was the students prior behavioral history. Nonetheless, there were a few decisions involving students who did not appear to have a history of behavioral concerns. For example, one students IEP team developed behavior goals in the area of work completion and appropriately responding to teacher re-direction. No other behavioral concerns were evident at the time of the evaluation. Although a clean behavioral record was uncommon in the sample overall, it was more common in No decisions than Yes decisions.
For a few No decisions, the emphasis on a students behavioral history included an acknowledgment of prior identified disabilities. Paperwork associated with one decision noted that the student was formerly identified as having an Emotional Disturbance, which was deemed no longer appropriate because the student had experienced recent success in controlling his or her behavior. In fact, a recent improvement in behavior was mentioned a number of times in No decisions. For example, a student with a specific learning disability and other health impairment
was found to no longer qualify for an Emotional Disturbance as rating scales indicated that he had average socio-emotional behaviors and that severe, chronic and frequent behaviors had not been noted in the last 2 years. His most current IEP indicated that while he had historical difficulties with controlling his anger, he had made gains and was demonstrating appropriate behaviors. . .
The students recent success in exhibiting appropriate behaviors provided a foundation for a conclusion that the students actions were not a manifestation of the students disability. According to this line of reasoning, if the students behavior improved, this progress signifies an ability to control behavior. Therefore, decision makers concluded that the student chose not to control his behavior in the set of circumstances under consideration.
Yes decisions also stressed behavioral inconsistencies. For example, one student can go for days doing the right thing and accept redirection. His behaviors are unpredictable when he becomes upset and can escalate to dangerous behaviors. Unlike the treatment of recent behavioral improvement in No decisions, many Yes decisions appeared to reference inconsistent behavioral patterns as justification to reach a conclusion to favor the student. To illustrate, one student
previously had a behavior plan in his IEP but these were removed during his most recent annual IEP meeting because the team felt he had progressed to the point of not needing a behavior plan for violent behaviors. His behavior was evident in that he seems to have followed other students into a situation he normally would not be involved in, trying to fit in with students he looks up to. This incident was a [sic] extreme manifestation of [students] disability therefore the team believes that may of his decisions were out of his control.
It is striking that this description of the childs behavioral pattern is similar to the behavior described in the No decision referenced earlier. Both students experienced recent behavioral improvements. Nonetheless, one team determined that the students actions were caused by or had a direct and substantial relationship to the students disability, whereas the other dismissed a similar behavioral pattern as evidence of a relationship.
Ability to Control Behavior
A students ability or inability to control his or her conduct appeared in both Yes and No decisions. Students were described as impulsive in both Yes and No decisions. One student was described as having difficulty controlling anger around people of authority. Teachers observed that students in both Yes and No decisions had difficulty with escalating behavior. In one No decision, a teacher stated, I wish he could learn to control his anger. He should channel his anger to more productive activities. Control was also implied in teachers portrayals of behaviors as choices. Consistent with the theme of choice, students in both Yes and No decisions were observed as refusing to do or complete work, refusing to follow rules or directions, and refusing services or support from teachers. Teachers depicted students in both Yes and No decisions as demonstrating behavioral improvement.
Some parents provided insight regarding students ability or inability to understand the consequences of their actions or their ability to control their behavior. These considerations were present in both Yes and No decisions. For example, one students parent was in agreement that he is capable of understanding the consequences of bringing a weapon to school. On the other hand, in a Yes decision, a mother indicated that her son knows right from wrong. Furthermore, some parents indicated that they believed their children were capable of making good choices. Some parents described their children as impulsive or not typically impulsive, whereas others were concerned that falling in with the wrong group of kids . . . is what caused [students] poor decision making.
Students were often described as having inappropriate social skills or peer interactions. Students in Yes decisions were portrayed as having inappropriate social interactions, whereas students in No decisions were characterized as intimidating their peers, interfering with their peers academic success, initiating conflicts with peers, or arguing with peers. Many students were identified as needing redirection.
The paperwork described various triggers or explanations for students behavioral problems. For example, one student
gets angry when he is picked on and he doesnt like for others to bump into him. [Student] will calm himself when he is allowed extra computer time or time alone to calm down. Any negative remarks will trigger his anger. [Students] negative behavior has escalated after witnessing a traumatic event in 2008.
Personal issues came up in both Yes and No decisions.
Connection to the Home and Community
Many students in Yes decisions reportedly exhibited similar behaviors at home or in the community; some students in No decisions exhibited similar problems at home or in the community. One mother reported concerns with [students] escalating behaviors at school and in the home. One students parent indicated that her childs behavioral problems were a product of his housing situation. When the student was living in another state with his father, he did not have behavioral issues. Parents in No decisions described their children as helpful at home and not hav[ing] behavioral problems at home. Parents and guardians expressed frustration about their childrens behavioral concerns. One parent said that his son has been at many schools and does not know what else he can do.
Outside services and therapy were mentioned more often in Yes decisions than No decisions. In addition to outside therapy or services, parents mentioned whether their child was prescribed medication and whether he or she was taking it at the time of the incident. Some students were already receiving outside services, and others would be seeking out such services in the future. One parent indicated that her sons behavior is more manageable when he takes his medication. She concluded that he must not be taking his medication regularly. Another student is currently on medicine, but his doctor was in the process of doubling the dose of medications for ADHD and mood disorder at the time of the offense. On the other hand, a student who was the subject of a No decision refuses to take his medication. In general, information regarding medication appeared more often in Yes decisions than No decisions.
Summary of Findings
Overall, the implementation of the standard seemed arbitrary. At times, information provided appeared to support an opposing outcome or either outcome. For example, in one decision, the paperwork indicated that [t]he IEP team reviewed students school records and IEP and determined that he has a lengthy history of aggressive and disruptive behaviors. In addition, the team determined that student's disability manifests in his behaviors. Nonetheless, this team of decision makers deemed that this students misconduct, beating up another student, was not a manifestation of the students disability.
Some teacher observations appeared to support a different conclusion than the one drawn by decision makers. For example, one student is unable to disengage from extremely aggressive behavior once he is involved. This students behavior, fighting with students and staff, was deemed not the result of his cognitive disability. Another student is a very nice man however when he is upset he has demonstrated lack of self-control and can become out of control and at this point can harm someone or possibly even himself. Despite this lack of control, the team determined that the students physical violence toward staff was not a manifestation of his disability.
This study asked what factors influence decision makers when deciding whether a students actions were a manifestation of his or her disability. In summary, decision makers cited the academic and behavioral manifestations of students disabilities, students behavioral histories, students ability to control their actions, and connections to the home and community (Table 1). Despite these consistent factors, the striking similarities between Yes and No decisions illustrate the overall arbitrary nature of the decision making process.
Table 1. Considerations by Outcome
This study posed the following research question: What factors (explicit and implicit) influence decision makers when deciding whether a students misconduct was caused by his or her disability? A total of 80 decisions were reviewed. The overview of paperwork presented in the previous section demonstrates the complex and subjective nature of MDR. As explained in the commentary accompanying the publication of the final federal regulations, the purpose of the current standard is
to assure that the manifestation determination is done carefully and thoroughly with consideration of any rare or extraordinary circumstances presented. The Conferees further intended that if a change in placement is proposed, the manifestation determination will analyze the childs behavior as demonstrated across settings and across time when determining whether the conduct in question is a direct result of the disability. (U.S. Department of Education, 2006, p. 46720)
Unfortunately, the sample paperwork reviewed in this study does not illustrate careful and thorough decision making. Of course, it is possible that the paperwork underrepresents the true analysis that took place during the decision making process. However, interviewees expressed concern about quality of the decision making process as well (personal communication, school district personnel, June 27, 2014).
Professional development opportunities in the last five years have emphasized the procedural requirements of MDR. The school districts focus on the procedural aspects of the law was further confirmed during the interview with school district personnel. Moreover, when asked about the school districts strengths in implementation, interviewees responded by saying, [w]e do it. This compliance-driven statement accurately summarizes the findings of the study. More specifically, in compliance with the legal standard, decisions in the sample included individuals who are required by law. Decisions included review of the students IEP, teacher observations, information provided by parents, and any other relevant information, once again in compliance with the law as it is written. However, it is possible to appear to be in compliance with the written letter of the law without honoring the intent of the law. School district interviewees referenced the following areas in need of improvement: maintaining objectivity in the decision making process, asking and answering the appropriate questions, detailed documentation, and team composition. A commitment to improving each of these aspects of implementation will help to achieve compliance with the intent of the law. Furthermore, the school districts willingness to participate and their support throughout the research process is a testament to their commitment to improving practice.
Under the 1997 standard, the law presumed that a students actions were a manifestation of his or her disability. School districts argued that this standard was confusing and made it too difficult to discipline students with disabilities (Senate Report, 2003). This assertion presumes that students with disabilities engage in behavior that is not a manifestation of their disabilities more often than not. It is unclear if this is the case, in general or in the sample reviewed. However, the entire population of decisions in the 20122013 school year included 251 Yes decisions and 470 No decisions.
The current legal standard requires decision makers to answer two questions: (1) Was the students behavior caused by, or did it have a direct and substantial relationship to, the students disability? (2) Was the students misconduct caused by the districts failure to implement the students IEP, as required by law (IDEA, 2004, 1415(k)(1)(E)(i))? The present study raises a fundamental question about what it means for a students actions to be caused by, or have a direct and substantial relationship to, the students disability. Based on IDEA and its corresponding case law, we know that each decision must be an individualized determination; generalizations about the behavioral manifestations of specific disability categories violate the law. The court reinforced this commitment in S-1 v. Turlington (1981), a case in which a school district claimed that procedural protections related to discipline were only available to students with emotional behavioral disabilities. Rejecting this argument, the court restated IDEAs mandate that decisions be based on individualized determinations. However, even when decisions are made on an individual basis, as the sample data in this study demonstrate, analyzing the relationship between misconduct and a students disability is no easy task.
A more cut and dried scenario may involve a student with an emotional disturbance with severe behavioral problems at school, at home, and in the community. If this particular student engages in the type of misconduct that the student has historically struggled to controlphysical aggression, for examplethe link between the disability and the misconduct appears fairly clear. However, what about a student who has not demonstrated a pattern of behavioral problems? Or a student whose violent actions were a response to being bullied on the basis of his disability? What about a student with an emotional disturbance who turns to drugs as a means to self-medicate? How about a student with a learning disability and no history of behavioral problems who responds aggressively to a teacher after becoming frustrated with an assignment?
Returning to Doe v. Maher (1986), the case from which the current standard originated, is particularly instructive. Maher involved a student who was labeled as emotionally disturbed. Doe was facing potential expulsion for assaulting another student and breaking a school window. A second student, Smith, a student with similar emotional struggles, faced the possibility of expulsion for making sexual remarks to female students. The court in Doe provided some guidance on the distinction between those behaviors that are a manifestation of a students disability and those that are not. According to the court,
[A] handicapped child's conduct is covered by this definition only if the handicap significantly impairs the child's behavioral controls. Although this definition may, depending on the circumstances, include the conduct of handicapped children who possess the raw capacity to conform their behavior to prescribed standards, it does not embrace conduct that bears only an attenuated relationship to the child's handicap. An example of such attenuated conduct would be a case where a child's physical handicap results in his loss of self-esteem, and the child consciously misbehaves in order to gain the attention, or win the approval, of his peers. Although such a scenario may be common among handicapped children, it is no less common among children suffering from low self-esteem for other, equally tragic reasons. (Doe v. Maher, 1986, footnote 8)
Similarly, at the time the current version of the law was pending, members of Congress stated,
The Conferees intend that in order to determine that the conduct in question was a manifestation of the childs disability, the local educational agency, the parent and the relevant members of the IEP team must determine the conduct in question be the direct result . . . not an attenuated association, such as low self-esteem, to the childs disability. (H.R. Conf. Rep. No. 108-779, 2004, pp. 224225)
These two sources provide some clarification regarding the relationship between a students actions and his or her disability. The relationship must be clear and direct; the connection cannot be attenuated. Greater guidance and professional development will not only assist school district personnel in their practice but also ensure that students with disabilities are treated equitably and that they are afforded the rights to which they are entitled under federal special education law.
The findings of this study present an ideal opportunity to reflect on the implementation of manifestation determination review and the implications for practice. At the district level, school district leaders should emphasize both the procedural and substantive aspects of the law as it is both written and intended. Because the decision making process involves many individuals, all educational personnel should be well versed in the legal requirements (Zilz, 2006).
School districts should make sure that both school district personnel and parents understand that an MDR is a special education decision that is separate from a disciplinary decision. As stated in the training materials reviewed in the present study, the MDR process is not an opportunity to determine whether the student in fact engaged in the misconduct alleged. This guilt or innocence determination is properly in the hands of those individuals who handle disciplinary decisions for all students. These individuals only become a part of the process after a representative of the education agency, the parents, and other relevant IEP team members find that the students actions were not a manifestation of the students disability. If the special education team determines that a students actions were a manifestation of his or her disability, a change of placement should only occur for nondisciplinary reasons. For example, parents and the school district may agree that the student would be better served in a more structured environment. Assuming this placement is the least restrictive environment for the student, this agreement complies with the law. In essence, teams that make these decisions decide that the misbehavior indicates that the child needs some change in the IEP (i.e., a change in goals, change in placement, or both) in order to help him or her learn from the incident.
In terms of decision makers, it would be beneficial to include individuals with training in the ways in which disabilities manifest themselves in students. For example, school districts may want to include a certified behavioral analyst who understands not only various disabilities but also potential triggers and environmental factors that may cause a student to engage in misconduct in a specific set of circumstances. Including these behavioral specialists ensures that the term relevant is understood in a meaningful way in implementation.
In addition to including experts who are trained in the behavioral manifestations of disabilities, it is imperative that teams include decision makers who are knowledgeable about the particular student under investigation. Teachers must not be selected to participate based on their title alone. For example, as one decision in the sample demonstrated, a teacher who is new to the school district and knows very little about the student may not be able to offer much information to the deliberation process. Furthermore, it may be helpful to include, either formally or informally, the perspective of individuals who witnessed the conduct under review. Doing so will allow decision makers to better understand the context and any antecedents that may have led to the incident. These procedural suggestions have direct implications for the substance of the decision making process.
Requiring that decision makers provide sufficient detail in the paperwork will ensure that MDR includes an in-depth analysis of the relationship between the conduct under consideration and the students disability. Decisions in the sample did not always indicate how various sources of information were used. Some decisions simply stated that the IEP, for example, was appropriate. However, in these decisions, there was very little information regarding the relationship between the misconduct under review and any past behavioral problems. For each of the sources of information reviewed, decision makers should document the association between the behavior under review and information reviewed. An auditor should be able to review the paperwork and understand how decision makers used the information reviewed to reach their conclusion. Unfortunately, this forensic analysis was not possible in all decisions in the sample.
A simple modification of the paperwork requiring decision makers to explain why a students behavior is or is not a manifestation of the students disability would have a meaningful impact on the documentation of the decision making process. Supporting documentation should provide specific references to relevant portions of paperwork reviewed (e.g., see page 15 of evaluation dated x/x/2012 for an explanation of the childs behavioral triggers). These recommendations do not assume that decision makers do not engage in robust analysis. Moreover, it is worth noting that this recommendation does not aim to burden decision makers with unnecessary additional paperwork. On the contrary, this is intended to be a minor revision. Unfortunately, fidelity to the law cannot be guaranteed with only a conclusory check box to record analysis, nor is compliance served by simply giving decision makers the benefit of the doubt. Requiring documentation of analysis and justification ensures that the decision makers in all decisions consider all relevant information in a meaningful way. Adjusting the documentation in this way will assist school districts in understanding districtwide strengths and weaknesses in the implementation of manifestation review while also protecting school districts from any challenges brought by parents. Requiring decision makers to document their decision making will help to ensure that the intent of the law is honored.
School districts should conduct periodic audits of MDR to ensure that both the letter and spirit of the law are implemented with fidelity. To do so, school districts will have to determine how to access all MDRs in a systematic way. Until the study began, the district had never systematically collected nor reviewed MDR paperwork. The school district had to create a formula to identify all MDRs. Based on the creation of this formula for the present study, the school district now tracks this decision point as a part of their special education data system. Audits permit school districts to understand districtwide practices that will illuminate best practices and potential areas in need of improvement. Similarly, a systemic examination of practices will allow districts to disaggregate data related to this particular decision point, which will provide a nuanced perspective on the large body of research documenting inequities related to special education identification and student discipline (Harry & Klingner, 2006; Losen, 2014; Losen & Orfield, 2002; Skiba et al., 2002; Skiba, Simmons, et al., 2006). An analysis of districtwide practices will also allow school districts to construct professional development opportunities that take local needs into account.
The law requires that decision makers consider whether the students actions were a manifestation of the students disability or whether the students conduct was the result of the school districts failure to implement the students IEP. Under the old version of the law, decision makers were required to consider whether the IEP was appropriate. This requirement was removed in the current version of the law because parents have the right to challenge the appropriateness of an IEP at any point in time (U.S. Department of Education, 2006, p. 46719). Although the current iteration of the law does not require decision makers to consider the appropriateness of the IEP as a component of MDR, consideration of the IEP at this stage of the special education process reinforces the school districts commitment to ensuring that students with disabilities receive a free appropriate public education. School districts should not wait until parents challenge the appropriateness of the IEP. Instead, school districts should use MDR as an opportunity to take a proactive approach to the delivery of a free appropriate public education.
As the current study demonstrates, the law, as it is currently written, permits subjective and superficial analysis during the MDR process. This consequence has the potential to interfere with the purpose of the law, which is to promote equity and ensure that students with disabilities are not disciplined for behavior that is caused by their disabilities. Although parents have the right to appeal the outcome of MDR, interviewees only recalled one instance in which a parent challenged the teams decision. In that situation, the issue was resolved between school district attorneys and the parents attorney before it reached a legal venue. However, even if parents decide to challenge outcomes, Zirkels 2010 research demonstrates that courts are more likely to uphold school districts decisions. Moreover, Smith (2000) found that when school districts complied with the procedural requirements, their decisions were often upheld. This deferential treatment of the substance of MDR is troublesome in light of the lack of rigor required under the current standard. Because decisions may not be challenged through litigation, and litigation may not always ensure that the intent of the law is honored, this study demonstrates the need for great attention to the decision making process.
There is a wealth of research that examines inequities in special education identification and student discipline (Harry & Klingner, 2006; Losen, 2014; Losen & Orfield, 2002; Skiba et al., 2002; Skiba, Simmons, et al., 2006). This study is situated at the intersection between these two bodies of research. MDR is the mechanism through which student discipline is possible. Determining the relationship between a students disability and student misconduct is inherently subjective. Furthermore, contextual factors at the district, building, or classroom level have the potential to impact the outcome. The findings of the current study demonstrate that, in implementation, the 2004 MDR standard ensures procedural compliance and school district authority, regardless of the strength of the relationship between misconduct and the students disability. The school district that is the subject of this study appears to be in compliance with the procedural aspects of the law. However, the paperwork did not demonstrate an emphasis on the substance of the decision making process. In 2004, Congress sought a simplified, common sense manifestation determination process that could be used by school personnel (U.S. Department of Education, 2006, p. 46720). However, contrary to Congressional intent, this simplified process does not assure that the manifestation determination is done carefully and thoroughly with consideration of any rare or extraordinary circumstances presented (H.R. Conf. Rep. No. 108-779, 2004, note 237245, pp. 224225).
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