Clarity for School Teams Regarding Manifestation Determination Decision-Making

05.14.2024

On April 9, 2024, the United States Court of Appeals for the Ninth Circuit issued an unpublished decision in C.D., by his guardian ad litem, Michell Dougherty v. Atascadero Unified School District, affirming the determinations by both an Administrative Law Judge (“ALJ”) and the District Court that C.D.’s conduct was not a manifestation of his disability. C.D. was a sixteen-year-old high school student who qualified for special education services under the Individuals with Disabilities Education Act (“IDEA”) based on a Speech or Language Impairment and an Other Health Impairment as a result of a speech-language disorder, central auditory processing disorder, borderline intellectual functioning, ADHD, and asthma. These conditions typically manifested in C.D. as difficulties with focus, attention, and compliance in the school setting.

On May 3, 2022, C.D. refused to leave a fenced area of an active construction site on campus after lunch. Numerous teachers, as well as C.D.’s case manager, his special circumstances instructional aide, the school nurse, a Board-Certified Behavior Analyst, and the principal used strategies outlined in C.D.’s behavior intervention plan to model and demonstrate appropriate, compliant behavior. When prompted by Student’s case manager to move to a safer area or go to class, Student responded by stating that nothing was wrong, that he did not want to go to class, that the case manager could not tell him what to do, that he would not move, and that he did not care if he got hurt. He made similar comments to other staff members throughout the duration of the incident, which lasted an hour and a half.

When prompted by the case manager to make safe choices, Student walked behind her, reached into her back pocket and took out a pen, and patted the case manager’s buttocks. After being told it was inappropriate to touch her like that, Student postured as if to stab her with an object in his hand and further cursed at her. Thereafter, multiple staff members continued to calmly engage with Student using strategies from C.D.’s behavior plan. These interactions prompted responses which demonstrated C.D. understood what was being asked of him and that he responded in a manner that intentionally focused on a particular individual. The incident culminated with C.D. complying with a request to walk to the nurse’s office to take his medication, but then changing direction to forcefully push and pin the case manager twice against a wall and, in a raised voice, urge her, “Let’s go…let’s do this!” C.D. was suspended and recommended for expulsion for grabbing/patting the buttocks of the case manager at the construction site and twice pushing her up against the wall in the administration building.

Before school personnel may remove a student with a disability from their educational placement to an interim alternative educational setting for more than ten school days, a manifestation determination (“MD”) team must determine: 1) if the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability; or 2) if the conduct in question was the direct result of the local educational agency’s (“LEA”) failure to implement the IEP. (20 U.S.C. §1415(k)(1)(E)(i)). In making this determination, the LEA, parent(s)/guardian(s), and relevant members of the student’s Individualized Education Program (“IEP”) team must review all relevant information in the student’s file, including the child’s IEP(s), any teacher observations, and any relevant information provided by the parents.

Here, Atascadero convened a MD meeting on May 19, 2022, to consider the impacts of Student’s disabilities on the acts of physical aggression exhibited toward the case manager. With the exception of C.D.’s parents, the team concluded that C.D.’s conduct was not a manifestation of his disability; nor was the incident a result of the District’s failure to properly implement C.D.’s IEP. Parents challenged this decision by filing a complaint with the Office of Administrative Hearings. They attributed the entirety of C.D.’s actions to his disabilities and claimed C.D.’s deficits in functional communication and poor impulse control stemming from his disabilities were the cause of his behavior on the day in question. The ALJ disagreed and concluded that C.D. failed to prove his May 3, 2022, conduct was caused by, or had a direct or substantial relationship to his disability, or that a failure to implement his IEP or BIP resulted in the misconduct.

The District Court agreed, reasoning that C.D. repeatedly used functional language throughout the duration of the 90-minute incident and understood what was being asked of him by school staff. Further, the incidents for which he was disciplined were separated by a period of time that gave him sufficient time to make volitional choices about his behavior. The evidence demonstrated that C.D. knew how to differentiate between preferred and non-preferred staff. The District Court also determined C.D. failed to show that his conduct was the direct result of any failure to implement his IEP.

The Ninth Circuit affirmed the District Court’s decision. While staff acknowledged that C.D.’s disabilities sometimes manifested in difficulties with focus, attention, or compliance, the Court found this distinguishable from the behavior displayed during the incident, which was “particularly inappropriate, violent and targeted.” Because the conduct that led to C.D.’s discipline was exceptional, volitional, and attenuated from his disabilities, the District Court had not erred in its findings.

This case serves as a strong reminder that defensible manifestation determinations often hinge on the team’s ability to articulate how a student’s disability presents, combined with careful consideration of the student’s actions before, during, and after the incident in question. Atascadero’s ability to distinguish how C.D.’s actions were not in fact impulsive, but rather volitional and intentional, was key to the conclusions at all levels of judicial review.

While not raised as an issue in C.D.’s original complaint and therefore not decided by the appellate courts, efforts to later challenge the procedural appropriateness of the team’s consideration of all relevant information at the MD review cannot be overlooked. Failure to procedurally comply with the statutory components required for a MD review can amount to a denial of a free appropriate public education if not appropriately facilitated at such meetings. Teams should be mindful to: 1) hold a MD meeting within 10 school days of the suspension or expulsion determination constituting a change of placement; 2) invite all necessary members of the IEP to participate; and, 3) ensure the team comprehensively considers all relevant information prior to making its determination. This should include discussing how the child’s disability presents for the student, specifically analyzing the child’s behavior across settings and across times during the school day, and thereafter carefully analyzing the facts and circumstances of the behavior involved during the incident in question.

Should you have any questions concerning the topic of this alert, please do not hesitate to contact the authors or your usual counsel at AALRR for clarification and guidance.