Discipline Rights & the Manifestation Determination Review

Student Discipline Rights in NYC District 11: A Guide for Parents

If your child with an IEP has been suspended in NYC District 11, which includes the Pelham Parkway, Morris Park, Allerton, and Van Nest areas, it's crucial to understand their rights and how to advocate for them. This guide provides actionable information to help you navigate the disciplinary process and ensure your child receives the appropriate support and educational services. We'll cover everything from short-term suspensions to Manifestation Determination Reviews (MDRs) and Functional Behavior Assessments (FBAs). Remember, you are your child's strongest advocate, and understanding these procedures is the first step in protecting their rights.

The information here is designed to give you a starting point. Because every situation is unique, you should seek legal advice from a special education attorney to discuss the specific facts of your child's suspension.

Short-Term Suspensions: The 10-Day Rule

New York Education Law Section 3214 governs student suspensions in New York State. It outlines the procedures schools must follow when disciplining students, including those with IEPs. A key aspect of this law is the "10-day rule." This rule states that a school can suspend a student for up to 10 cumulative school days in a single academic year without triggering a Manifestation Determination Review (MDR).

"Cumulative" means that all suspensions throughout the year are added together. So, even if your child receives several short suspensions (e.g., two days here, three days there), once those days add up to more than 10, the MDR process is triggered.

Even for suspensions under 10 days, your child has rights. New York Education Law 3214 requires that, for any suspension, the school must provide the student with an opportunity for an informal conference with the principal or other school official where the student is informed of the charges against them and given an opportunity to present their side of the story. For suspensions of five days or fewer, the law requires the school to provide written notice to the parent regarding the reason for the suspension and the period of suspension. For suspensions exceeding five days, the student is entitled to a superintendent's hearing with due process protections.

While an MDR isn't required for suspensions under 10 days, it's important to remember that your child is still entitled to a Free Appropriate Public Education (FAPE). This means that even during a short-term suspension, the school should consider whether your child needs continued access to their IEP services to make progress on their goals. Contact the Committee on Special Education (CSE) office for District 11 to discuss whether your child's IEP can be implemented at home or in another setting during the suspension.

When an MDR Is Required

A Manifestation Determination Review (MDR) is a critical process that determines whether a student's misconduct is related to their disability. An MDR is required when a student with an IEP faces a suspension exceeding 10 cumulative school days in a school year, or when a series of shorter suspensions creates a pattern that constitutes a change of placement. A "change of placement" doesn't necessarily mean a change of school; it refers to a significant alteration in the student's educational environment. A pattern of suspensions that excludes a student from their regular classroom for extended periods can be considered a change of placement, triggering the need for an MDR.

The MDR meeting must include the IEP team, which must include you, the parent(s) or guardian(s). Other attendees typically include the student (when appropriate), a school administrator, special education teacher(s), and any other relevant professionals who have knowledge of the student's disability and behavior.

During the MDR, the team addresses two crucial questions:

1. Was the student's behavior caused by, or did it have a direct and substantial relationship to, the student's disability? 2. Was the student's behavior a direct result of the school's failure to implement the student's IEP?

The MDR must occur within 10 school days of the decision to change the placement of a student with a disability because of a violation of a code of student conduct, according to NYS Part 201.13. This timeline is crucial, so be sure to track the dates and advocate for a timely review.

The Two MDR Outcomes

The Manifestation Determination Review (MDR) results in one of two possible outcomes, each with distinct implications for your child's education and disciplinary process.

Outcome 1: Behavior IS a Manifestation of the Disability

If the IEP team determines that the student's behavior was caused by or directly related to their disability, or that it was a direct result of the school's failure to implement the IEP, the behavior is considered a manifestation of the disability. In this case, the school cannot proceed with a long-term suspension (more than 10 days).

Instead, the school must take immediate steps to address the underlying causes of the behavior. This typically involves:

• Returning the student to their original placement: , unless the parents and the school agree to a change of placement as part of the IEP review. * Conducting or reviewing a Functional Behavior Assessment (FBA) , if one hasn't already been conducted. An FBA is a process of identifying the triggers and functions of the student's behavior. * Developing or revising a Behavior Intervention Plan (BIP) based on the findings of the FBA. The BIP outlines specific strategies and interventions to address the student's behavior and teach them more appropriate replacement behaviors.

Outcome 2: Behavior is NOT a Manifestation of the Disability

If the IEP team determines that the student's behavior was not caused by or directly related to their disability, and that the school did properly implement the IEP, the behavior is not considered a manifestation of the disability. In this case, the school may proceed with disciplinary actions, including a long-term suspension.

However, even if the behavior is not a manifestation, your child is still entitled to a Free Appropriate Public Education (FAPE). This means that the school must continue to provide services that allow your child to continue to participate in the general education curriculum and progress toward their IEP goals during the suspension. These services could include tutoring, alternative assignments, or other supports. It is essential to work with the CSE to ensure that your child's educational needs are met during the suspension period.

The 45-Day Interim Alternative Setting

In very specific and serious situations, a school can remove a student with an IEP to an interim alternative educational setting for up to 45 school days, regardless of whether the behavior is a manifestation of the disability. These situations are limited to cases involving:

• Weapons: The student possesses or carries a weapon to school or a school function. * Drugs: The student knowingly possesses or uses illegal drugs, or sells or solicits the sale of controlled substances, while at school or a school function. * Serious Bodily Injury: The student has inflicted serious bodily injury upon another person while at school or a school function. "Serious bodily injury" generally means an injury that involves a substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.

Even in these situations, the school must continue to provide educational services that enable the student to participate in the general education curriculum and progress toward their IEP goals. The interim alternative setting should be designed to meet the student's individual needs and provide the necessary supports.

If you disagree with the school's decision to place your child in an interim alternative setting, you have the right to challenge the decision through an expedited due process hearing. This is a faster process than a regular due process hearing, designed to resolve the issue quickly. You should consult with a special education attorney immediately if your child is facing a 45-day removal.

FBAs and Behavior Intervention Plans

A Functional Behavior Assessment (FBA) is a crucial tool for understanding and addressing challenging behaviors in students with IEPs. An FBA is a systematic process of identifying the triggers (antecedents) and functions (reasons) behind a student's behavior. It helps the IEP team understand why a student is engaging in a particular behavior.

The school district is required to conduct an FBA when a student's behavior impedes their learning or the learning of others. This is especially important when a student is facing disciplinary action. The FBA should be conducted by qualified professionals, such as school psychologists, behavior specialists, or special education teachers with expertise in behavior management.

A good FBA should include:

• Clear definition of the target behavior: What exactly does the behavior look like? * Identification of antecedents: What events, situations, or triggers precede the behavior? * Identification of consequences: What happens immediately after the behavior? * Determination of the function of the behavior: What does the student gain or avoid by engaging in the behavior? (e.g., attention, escape from a task, sensory stimulation) * Data collection: Objective data to support the findings of the FBA.

Based on the findings of the FBA, the IEP team should develop a Behavior Intervention Plan (BIP). The BIP outlines specific strategies and interventions to address the student's behavior. A good BIP should include:

• Proactive strategies: Strategies to prevent the behavior from occurring in the first place (e.g., modifying the environment, providing clear expectations, teaching replacement behaviors). * Reactive strategies: Strategies to respond to the behavior if it does occur (e.g., de-escalation techniques, planned ignoring, redirection). * Reinforcement strategies: Strategies to reward the student for engaging in appropriate behavior. * Data collection: A system for monitoring the effectiveness of the BIP.

You, as a parent, have the right to request an FBA proactively, even before a crisis occurs. If you notice that your child is struggling with certain behaviors, or if you anticipate that certain situations might trigger challenging behaviors, you can request that the school conduct an FBA. Putting this request in writing to the school principal and the CSE is recommended. Early intervention can often prevent more serious behavioral issues and disciplinary actions down the road.

Day 1 Checklist: What to Do When Your Child Is Suspended

If your child with an IEP is suspended in NYC District 11, here's a checklist of immediate actions you should take:

1. Get the Suspension Notice in Writing: Obtain a written copy of the suspension notice from the school. This notice should include the reason for the suspension, the length of the suspension, and your child's rights. 2. Count Cumulative Suspension Days: Keep track of the number of days your child has been suspended this school year . This is crucial for determining when an MDR is required. 3. If Approaching 10 Days, Request MDR in Writing Immediately: If the current suspension, combined with previous suspensions, is approaching or exceeds 10 cumulative school days, immediately send a written request to the school principal and the CSE requesting a Manifestation Determination Review. Clearly state that you are requesting an MDR due to the cumulative number of suspension days. 4. Contact the CSE Office to Request Continuation of Services: Contact the Committee on Special Education (CSE) office for District 11 to discuss how your child's IEP will be implemented during the suspension. Advocate for continued access to services, such as tutoring, alternative assignments, or other supports, to ensure your child continues to make progress on their IEP goals. You can find contact information for the District 11 CSE on the NYC Department of Education website. 5. Document Everything: Keep detailed records of all communications with the school, including dates, times, names of people you spoke with, and the content of the conversations. Save all documents related to the suspension, including the suspension notice, emails, and letters. 6. Consider Legal Consultation: Consult with a special education attorney to discuss your child's rights and explore your legal options. An attorney can provide guidance on navigating the disciplinary process and advocating for your child's needs. 7. Escalation (If Necessary): If you are not satisfied with the school's response, you have the right to file a State Complaint with the New York State Education Department (NYSED). You can also request an expedited due process hearing to challenge the school's decision. An attorney can help you with these processes.