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Monday, Dec. 31st 2018


Federal and congruent state law protects students in K-12 Students with Disabilities in public schools and other schools receiving federal funds from being suspended for more than 10 days without a hearing to determine if the child’s “conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability. The accused student with a documented disability, usually set forth in his IEP document, has a right to a MANIFESTATION DETERMINATION HEARING, prior to being subjected to a long-term suspension hearing. The federal law providing this right is found at 34 CFR Sec. 300.530. 

Each state has a congruent state statute and/or regulations implementing the Manifestation Determination hearing process. If the “manifestation determination” committee finds that the misconduct was caused by, or had a direct and substantial relationship to, the child’s disability, then the suspension must be limited to no more than 10 days. If the hearing result does not support the link between conduct and disability, then the student may appeal the decision to an administrative hearing officer who is not an employee of the school district. 

The key to a successful manifestation determination hearing outcome is to obtain testimony or an opinion letter from one or more treating physicians or psychologists who can confirm the diagnoses; that the diagnoses were in effect at the time of the alleged misconduct; that in the professional opinion of the healthcare provider, the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability. 

Manifestation determination hearings are strictly limited in their scope. They are not a forum to argue whether the alleged infraction of school rules is supported by the evidence; in other words, the hearing is not about guilt or innocence. It is only about whether a particular student should be subjected to the long-term suspension process at all. If the manifestation determination is in the K-12 Students with Disabilities favor, there should be no long-term suspension hearing and the student should be returned to class after no more than a 10-day suspension.

Clifford A. Cohen, a student rights attorney, is experienced in matters relating to K-12 Students with Disabilities and Manifestation Determination Hearings. Mr. Cohen can be reached at 785.979.7361, at cac@studentrightslawyers.com, or ONLINE.

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