Legal Mailbag – 5-4-23

By Julia V. Wilde, Counsel, Shipman & Goodwin LLP – GUEST COLUMNIST

The “Legal Mailbag Question of the Week” is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short, law-related questions of practical concern to school administrators. Each week, we will select a question and publish an answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors.

Please submit your questions to: legalmailbagatcasciacdotorg.

Dear Legal Mailbag:

As I’m sure you’ve heard, schools everywhere are seeing increased issues with student behavior this year. As the principal of a middle school, I can certainly tell you it’s true! We have seen an increase in disciplinary referrals this year, and I know my colleagues at both the elementary school and the high school are struggling as well. Things aren’t slowing down, even with the end of the year in sight. Just last week we had to deal with a seventh grader who totally disrupted a school wide assembly on community building (of all things) by running around the auditorium, screaming profanities, making threats and shooting motions, and inciting other students to walk out of the presentation!

I suspended this kid for 5 days for this atrocious behavior. Normally I might have been more lenient, but this particular student has been in ISS at least once a week this year for everything from swearing to cutting class, not to mention a 2 day suspension for fighting in the hallway. I have had it! Imagine my surprise when I got a call from a lawyer claiming to represent the student and saying that I couldn’t suspend without holding a manifestation determination meeting. Sure, this kid has an IEP to address a learning disability, but it doesn’t take much for me to determine that they manifested that chaos in my auditorium last week! I’ll leave special education to the experts, but I thought no matter what, I could suspend any student for up to 10 days without an issue. This troublemaker is only up to day 7 – what gives? When DO we have to hold these manifestation determinations anyway?

Manifestly Confused


Dear Confused:

Legal Mailbag understands the challenges you face with regard to student behavior. Maintaining an educational environment that is conducive to learning, unfortunately does sometimes require the imposition of disciplinary measures. The authority to impose discipline is however, accompanied by the related obligation to understand the limits the law places on that authority. One such set of limitations are the procedural protections that students with disabilities are entitled to under the Individuals with Disabilities Education Act (“IDEA”). In this case, it seems your student’s lawyer understands those protections and is correct that a manifestation determination is required.

Under the IDEA, a district may remove a child with a disability from their current placement for disciplinary reasons, including suspension, for no more than 10 consecutive school days. 34 CFR 300.530(b)(1). The removal of an eligible student for more than 10 school days however, constitutes a change in placement under the IDEA and triggers additional protections. 34 CFR 300.536(a)(1). One of those protections is the district’s obligation to conduct a manifestation determination, within 10 school days of any decision to change the placement of a child with a disability for disciplinary reasons, to assess whether the misconduct is a manifestation of their disability. 34 CFR 300.530(e). Generally speaking, a district cannot suspend a student with a disability for more than 10 school days for conduct that is a manifestation of the student’s disability.

Here, even with the recent 5 day suspension, your student has only been issued a total of 7 days of out of school suspension. Given the general rule, your understanding that you can still discipline the student because you are still within the 10 “free” days makes sense. However, it’s a little more nuanced than that. So, as you astutely inquired, “What gives?” Well, the IDEA does. Remember, you also indicated that the student is a frequent flier in ISS. (By the way, if the student really is in ISS weekly, at this point in the year you have violated state law. C.G.S. 10-233(f) limits the maximum amount of in-school suspension allowed, but that’s a discussion for another day!) Under the IDEA, while removals for less than 10 days don’t automatically constitute a change in placement, they may. 34 CFR 300.536(a)(2). This would be the case where the series of shorter term removals constitute a pattern which changes placement by impacting the student’s ability to make progress in the general curriculum, access IEP services or participate with nondisabled students to the extent required in their IEP. 71 Fed. Reg. 46,715 (2006). In this case, with regular referral to ISS as well as multiple out of school suspensions, it would be hard to argue that the student’s placement hasn’t been changed. Here, a manifestation determination meeting must be convened by the PPT (not you) to determine whether the student’s conduct was a manifestation of their disability, which ultimately dictates whether or not you can proceed with the suspension. If the conduct is determined not to be a manifestation, you can proceed with your suspension. Finally, Legal Mailbag also reminds you that these protections, including the requirement that a manifestation determination be held required if disciplinary action would constitute a significant change in placement, also apply to students receiving accommodations pursuant to Section 504.