In Reviewing MDR Decisions, Hearing Officers May Consider Whether the Student Actually Violated the Code of Student Conduct

Students with disabilities, like all students, may be disciplined for violating the school's code of conduct.  If that discipline involves a disciplinary change in the student's placement, the school district must conduct a manifestation determination review (MDR) to determine whether the student's alleged misconduct was related to the student's disability. The outcome of the MDR can be appealed to  a hearing officer.  Historically, hearing officers have generally only reviewed the evidence regarding whether the student's  misconduct was related to the students' disability or whether the school district followed the appropriate procedures. Hearing officers have not generally reviewed whether the student with a disability actually violated the code of conduct. In Letter to Ramirez , 60 IDELR 230 (OSEP Dec. 5, 2012), Melody Musgrove, the Director of the Office of Special Education Programs, clarified that hearing officers may address whether the student did, in fact, violate the code of conduct.

Ms. Musgrove's letter was in response to a letter from a former hearing officer asking for guidance on  whether it was within "a hearing officer's jurisdiction to get involved in the determination of whether a certain action by a student with a disability amounted to a violation of the school district's Student Code of Conduct."  In response, Ms. Musgrove stated "Because the hearing officer's authority includes a determination regarding 34 CFR 300.530 and that provision includes references to removal from the current placement of a child with a disability who violates a code of student conduct, there may be instances where a hearing officer, in his discretion, would address whether such a violation has occurred. The IDEA and its implementing regulations neither preclude or require that a hearing officer determine whether a certain action by a student with a disability amounts to a violation of the school district's Student Code of Conduct." Thus, hearing officers have discretion whether to make that determination, but it is within their jurisdiction. So, if parents question whether their child actually did violate the school district's Student Code of Conduct, they may raise that as an issue with the hearing officer.