Manifestation Determination and Bullying

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:

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.

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.

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. • http://missoulian.com/news/local/article_2ca0d8f8-c129-11de-b225-001cc4c03286.html

11. References Moore, M. (2009, October 24). Bullied out of class: parents pull autistic son from school due to taunts, hazing. Retrieved from http://missoulian.com/news/local/article_2ca0d8f8-c129-11de-b225-001cc4c03286.html 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, 2011. Wright, P.W.D., & Wright, P.D. (2009, May 4). Discipline for children with disabilities: questions and answers from osep. Retrieved from http://www.wrightslaw.com/advoc/articles/discipline_faqs_osep.htm Yell, M., The law and special education, (2006), Upper Saddle River, New Jersey 07458: Pearson Education, Inc.