When Should We Manifest a Manifestation Determination?

A student with a disability found guilty of violating the Code of Conduct is entitled to a manifestation determination review (“MDR”) prior to imposition of a disciplinary penalty that will result in a “disciplinary change in placement” (i.e., a suspension for more than 10 school days that are either consecutive or constitute a pattern of suspensions for substantially similar behavior in the same school year). The purpose of the MDR is to determine if the behavior was a manifestation of the student’s disability, or a result of the school’s failure to properly implement the student’s IEP. The basis for the MDR is that it would be improper, perhaps discriminatory, for the school district administration to effect a disciplinary change in placement for conduct caused by the student’s disability.

There has long been a debate as to whether the MDR should precede a superintendent’s hearing, on the theory that there would not be a need for the disciplinary hearing if the behavior is a manifestation of the disability. We have taken the position that the superintendent’s hearing should first convene and, if the student is found “guilty” of the misconduct, the matter should be reviewed by a MDR team to determine whether such conduct was a manifestation of the student’s disability. Only when the conduct is determined to not be a manifestation of the disability does the matter proceed to the penalty phase of the superintendent’s hearing. If a manifestation is determined, the charges are dismissed and the student returns to the student’s placement unless the school and parents agree otherwise. There are a number of practical reasons for bifurcating the superintendent’s hearing to include the manifestation review as a middle phase. Besides being consistent with Section 201.9 of the Commissioner’s Regulations, it allows the MDR team to understand the full context of the misconduct in making its determination.

Now, a recent decision from the Commissioner has highlighted the importance of convening the fact-finding phase of the superintendent’s hearing prior to the MDR. In Appeal of M.W., 61 Ed. Dept. Rep. Decision No. 18,068, the school district conducted the manifestation determination review before the student discipline hearing commenced. The Commissioner ruled against the school district. According to the Commissioner, conducting the MDR prior to the phase 1 fact-finding portion of the student discipline hearing “presupposes a student’s guilt.” (There may need to be an exception made when a parent seeks to adjourn the superintendent’s hearing beyond the point where the out of school suspension becomes a “disciplinary change of placement,” as defined by Part 201. Please contact us to review the District’s options to ensure compliance with the Individuals with Disabilities Education Act “IDEA”) should this occur.)

Appeal of M.W. also reminds us of the importance of a student discipline hearing officer remaining neutral. The Commissioner ruled against the school district in part because the superintendent of schools served as hearing officer and also called witnesses on behalf of the District, responding directly to statements and inquiries “as if he were serving as the District’s representative.” Although a superintendent of schools is authorized by statute to serve as the “hearing officer” in a student discipline hearing under Section 3214 of the Education law, it is improper for a hearing officer to also actively prosecute the case. The Superintendent or designee must take care to preside over the hearing in a fair and neutral manner and not overstep his or her role. Someone else should present or prosecute the case.

Please contact our office should you have questions regarding the timing of a manifestation determination review or other procedural requirements for student discipline hearings.