Monthly Archives: March 2012

What is a manifestation determination meeting?

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If you are seeking out this information, your child is likely in trouble with his school district. Additionally, your child is in special education, because this issue deals with children under the umbrella of special education. A manifestation determination meeting is very serious because it means that the school district is attempting to change your child’s placement or place your child on a lengthy suspension .

What is an manifestation determination? If a school district wishes to force a change of placement or suspend a child for an amount greater than 10 days, it must conduct a manifestation determination. The term itself means that the district must decide (determination) if the conduct which was the reason for the sought after discipline was a result (manifestation) of the child’s disability. If it was not, then the suspension/change of placement may proceed. If it was, then it may not. The reason for this is simple. If the behavior was caused by the child’s disability, i.e. impassivity, then the child was really not in control of their actions and the discipline would be unwarranted.

What is the process? A manifestation determination looks like an IEP team meeting, although there will likely be more school district personnel in attendance.

How will the decision be made? The district will investigate the incident itself. In order to do this, it will look at evidence, talk to witnesses, interview any victims, talk to the administrators and school personnel who have knowledge of the incident and its surrounding circumstances. Second, the district will review relevant information regarding the child and his disability already known to the district. In other words, they will review the student’s educational records, including the child’s cumulative file, their special education documentation, any information from  Student Study Team meetings and the like. Once this step is completed, the IEP team must then make its determination.

What questions are asked to determine if the behavior is a result (manifestation) of the child’s disability?There are two questions that must be answered.

(I) if the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability; or

(II) if the conduct in question was the direct result of the local educational agency’s failure to implement the IEP.

If the local educational agency, the parent, and relevant members of the IEP Team determine that either subclause (I) or (II) is applicable for the child, the conduct shall be determined to be a manifestation of the child’s disability.

(F) Determination that behavior was a manifestation.–If the local educational agency, the parent, and relevant members of the IEP Team make the determination that the conduct was a manifestation of the child’s disability, the IEP Team shall–

(i) conduct a functional behavioral assessment, and implement a behavioral intervention plan for such child, provided that the local educational agency had not conducted such assessment prior to such determination before the behavior that resulted in a change in placement;

(ii) in the situation where a behavioral intervention plan has been developed, review the behavioral intervention plan if the child already has such a behavioral intervention plan, and modify it, as necessary, to address the behavior; and

(iii) except where there are special applicable circumstances, return the child to the placement from which the child was removed, unless the parent and the local educational agency agree to a change of placement as part of the modification of the behavioral intervention plan.

Are only special education children subject to manifest determination requirements? No, in limited circumstances, children not in special education may also be protected.  If the district has knowledge that the child has a disability, then a manifestation determination is necessary before a lengthy suspension or change of school placement.

When does a school district have knowledge that a non-special education student is disabled? A district is attributed such knowledge under three circumstances: 1) when a parent has in writing expressed to the district that the child needs services; 2) when a parent has made a written request for special education testing for the child to the district; and 3) when school personnel have expressed specific concerns about a problematic behaviors directly to the director of special education for a district or supervisory personnel.

If your child has an upcoming manifestation determination meeting, it would be wise to consult with an attorney in order to protect your child’s rights. You may contact The Law Office of Gregory R. Branch at its website, by email, gregorybranch@edrightsadvocate.com, or by phone at (714) 856-1166.

Seattle special ed teachers lose appeal of suspension for refusal to state test

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 Two Seattle, Washington, special education teachers have lost in their appeal of a ten-day without pay suspension from work for insubordination in the wake of their 2008 refusal to administer state-mandated testing. In a decision handed down December 27, the Washington State Court of Appeals upheld the teacher’s suspension holding that the district’s disciplining of the teacher was not arbitrary or capricious.

FACTS:

The two elementary school teachers, Juli Griffith and Lenora Stahl-Quarto, were described in court documents as “dedicated and good at their jobs.” Both teachers taught severely disabled students. In 2008 the teachers had six state testing eligible students in their classrooms whom they refused to test. In a letter prior to their suspension, one teacher argued that testing her children would be “inauthentic” and “ridiculous” based on the severity of the disabilities. In court documents, the students in question were described as being some of the most challenged students in the Seattlepublic school environment. According to court documents, the teacher went on to characterize giving the test as “jumping through the golden WAAS (Washington Alternate Assessment System) hoop just so it appears that our school is making ‘adequate yearly progress.’” The teachers persisted in their refusal to administer the test in the face of multiple meetings and communications that informed them that their action would be regarded as insubordination.

A central question in the decision that was appealed was whether the teachers were acting on principle or based on direct requests by the parents of the students in their rooms. While in the earlier trial the teachers presented evidence that the parents did not wish their children tested, the lower court made a determination that the teachers were acting on principle. This decision was based on the fact that in all the communications with the district prior to their suspension, parent requests were never mentioned as a motive for their refusal to test.

DECISION:

In upholding the lower court’s allowance of suspension, the court began be review the holding that the teachers acted on principle rather than at parent direction. The court noted that “eventually, parents of the six students submitted written refusals. But, the misconduct occurred between the fall of 2008 and the beginning of January 2009. The first letter did not arrive until January 27. Four more arrived in February, and one came in May. None of the six letters included any indication that the parents expressed their refusal to the teachers in the fall of 2008.” Based on these facts, the court refused to disturb the lower court’s findings.

Next, the court looked at whether the teacher’s acts amounted to insubordination. According toWashingtonlaw,

a teacher is insubordinate if she willfully refuses to obey a reasonable regulation governing her conduct.

Here, because the teachers were notified in advance of their actions on numerous occasions by the district that their refusal to administer the test would be insubordination, and further, aWashingtonstate employee in charge of alternate assessments informed Quarto that the test was federally mandated, the court determined that the teachers’ actions were insubordinate.

According to Levi Pulkkinen, the SeattlePi.com writer whose article brought this matter to my attention, it is unclear whether the teachers plan to appeal this decision toWashingtonState’s Supreme Court. The teachers’ attorney did not return a request for comment on the decision.

If as a parent you have concerns about your child being required to take part in state or federally mandated testing, please contact The Law Office of Gregory R. Branch through its website, through email at gregorybranch@edrightsadvocate.com, or by phone at (714) 856-1166.

Due process in special education

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 A phrase that strikes concern and apprehension into the hearts of school district personnel is “due process hearing.” When parents feel their child’s right to a free and appropriate public education is being denied, they have the legal right to file for a due process hearing, which means they are suing the school district to attain educational rights for their child.

Due process is essentially the guarantee of fairness provided to us by the United States Constitution.  The 5th Amendment, which only applies to actions by the federal government, states in relevant part that a citizen cannot “be deprived of life, liberty, or property, without due process of law.” It was not until after the Civil War that this protection was extended to citizens aggrieved by actions of state and local governments.

The 14th Amendment, passed in 1868, states that no State shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

So, since what the Constitution guarantees is that the government will not deprive its citizens of life, liberty, or property, without due process of law, which of these rights is a student being deprived of when a school district does not offer him an appropriate education?

Interestingly, the argument being advanced in a due process hearing is that the child is being deprived of a property right. In Goss v. Lopez, the Supreme Court held that State compulsory attendance laws created a property right in education and thus, in order to be deprived of the right to attend, the State must provide due process, essentially some sort of legal process for ensuring the right is not being taken away arbitrarily.

Thus, when parents file for a due process hearing, they are utilizing the state-mandated system for enforcing their child’s property rights to an education, a right founded under the Individuals with Disabilities Education Act, a national law which similarly to compulsory attendance laws creates a property interest in attending school.

You may download a Request for Due Process form at www.oah.dgs.ca.gov.

If you feel that your child is being deprived of due process, please contact my law firm through its website, via email at gregorybranch@edrightsadvocate.com, or by phone at (714) 856-1166.

Candy cane case reopened just three days before Christmas

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There will be no celebrating of Christmas with candy canes by two Texasarea principals this holiday season. Yesterday, an appeal was filed with the U.S. Supreme Court seeking to overturn the 5th U.S. Circuit Court of Appeals decision granting the educators qualified immunity in the so called “Candy Cane Case.” It is doubtful that it is coincidental that the appeal was filed just three days prior to Christmas in a move that is sure to increase publicity for this case.

Read the rest of my Examiner.com article on Morgan v. Swanson here.

If you feel that your child’s free speech rights are being infringed, please call me at 714-856-1166. You can also contact me through my firm’s website

Reviewing school bullying in California for 2011

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It was good year for the anti-school bullying movement in California. Anyone who reads the newspapers knows that bullying is a pervasive issue in schools, and one that adults are starting to take much more seriously. For years the prevailing attitude of most adults was that bullying was just part of growing up and that children just needed to work it out and learn how to deal with it. Read the rest of my article here.