As the kick-off to the school year winds down and daily routines take shape, we start to see serious student discipline issues pop up. And one situation that always leads to confusion is what to do when a student who does not have an IEP is up for expulsion and then the parent requests an evaluation or argues that the student should have already been found eligible. You know special rules apply, but trying to piece it all together can make your head spin.

We’re flowchart people over here at Franczek P.C. Let’s start with a visual representation of the process, then we’ll dig into some of the complexities and reference guidance the Office of Special Education Programs (OSEP) released earlier this year.

Click here to download a copy of our discipline flow chart.

That’s not too complicated, right? The first question we should consider is “What is a ‘basis for knowledge.’” IDEA deems a school to have knowledge that a student has a disability if one of the following three events occurs before the behavior that led to the discipline:

  1. The parent expressed concern in writing to the student’s teacher or an administrator that the student needs special education and related services; or
  2. The parent requested a special education evaluation; or
  3. The student’s teacher or another staff member expressed specific concerns about a pattern of behavior to the director of special education or other supervisory personnel.

Note that these are very specific events. You may encounter a situation where there are arguable child find red flags but they do not fit into one of the three bases for knowledge. In that case, you follow the “no basis for knowledge” branch of the flowchart. Additionally, the school is not deemed to have knowledge if one of the three circumstances above applies but:

  1. The parent did not give consent for an evaluation or for services; or
  2. The student was evaluated and determined ineligible.

The next tricky question is what to do if you need to conduct a manifestation determination review, or MDR, for a student who has not yet been determined eligible for special education. The MDR needs to be conducted within 10 days of the decision to impose a disciplinary change of placement, but an evaluation typically takes much longer. The OSEP guidance directs that the school cannot postpone the MDR while it conducts the evaluation.

While holding an MDR without evaluative data and an identified disability seems like an impossibility, that is exactly what OSEP states teams need to do. The school must determine if the conduct was caused by or had a direct and substantial relationship to the student’s suspected disability using all relevant information that is available. That information may include teacher reports, disciplinary history, response to prior interventions, and information provided by the parents. You don’t have a crystal ball; manifestation determinations are not an exact science. Use your best deductive skills and document your reasoning. If the decision is challenged later, a hearing officer will be more likely to defer to a well-reasoned and well-documented determination.

What about determining whether the student’s conduct was the direct result of the school’s failure to implement the IEP? Sometimes a parent will argue that the student should have had an IEP, and that the conduct was the direct result of the student not having that hypothetical IEP implemented. The guidance, however, suggests this argument is too speculative. While the parent may have a child find claim, that would not impact the manifestation analysis.

One final point from the guidance relates to procedural safeguards. We sometimes joke that parents could wallpaper their house with all the procedural safeguards notices schools have given them—and other times cry for all the lost trees. As we move to more and more electronic communication and documentation, many districts have posted the procedural safeguards notice on their websites and offer parents an electronic copy when the notice must be provided. The guidance explains that such actions may be helpful, but the school “must still offer parents a printed copy of the procedural safeguards notice” and recommends documenting if parents decline a paper copy in favor of electronic.

We hope this flowchart and explanation help you breathe a little easier when you encounter complicated discipline situations. Disciplinary decisions for students who are identified as eligible under IDEA and those who may be eligible present individualized considerations. For guidance on any specific matters, make sure to reach out to your Franczek attorney or other legal counsel.