Jan 30, 2011
A parent called Disability Law Colorado when her son’s school limited her participation in a meeting about her son’s behavior.
Disability Law Colorado filed a complaint against the Cherry Creek School District with the Colorado Department of Education. Thanks to our involvement the meeting was held again and the rules about the meeting process were clarified.
The Case
In September 2010, Disability Law Colorado was contacted by a distraught mother whose child’s school placement was being changed following an episode of difficult and disruptive behavior. The mother was justifiably angry that her son’s school failed to follow the law by limiting her full participation in his “manifestation determination review.”
IDEA
The Individuals with Disabilities Education Act (IDEA) provides that all children with disabilities have a right to a free appropriate public education, including children who are suspended or expelled.
The IDEA has specific procedures for school administrators to follow when disciplining children with disabilities. These procedures balance the need to keep schools safe with the right of children with disabilities to receive an education. There is a process to determine if a student’s misconduct is a manifestation of his or her disability, and this prevents children from being punished for “misbehavior” that is related to their disability.
The manifestation determination is made by a group that includes the child’s parent and the relevant members of the child’s Individualized Education Program (IEP) team. The group meeting is not a hearing and Disability Law Colorado believes it is intended to be collaborative and non-adversarial, with participants focused on the child’s best interests.
Manifestation Review Must Include Parent
After studying all the facts in this case, Elizabeth Collard, an attorney/investigator in Disability Law Colorado’s Special Education Program, was convinced that the school had acted improperly. The case was undeniably complex, as the child had exhibited serious behavior and criminal charges were pending. However, the boy had serious disabilities, and the law is clear that the manifestation review should have included his parent.
The law also states that parents be allowed to select other representatives from their child’s IEP team. This was not done.
Ruling in Favor of Client
Disability Law Colorado filed a state complaint against Cherry Creek School District with the Colorado Department of Education (CDE) and we are pleased to report that in January we received a decision in our client’s favor.
The state complaints officer found that the district violated the IDEA and significantly impeded the parent’s opportunity to participate in the child’s manifestation determination review.
The state complaints officer also found that the district’s discipline policies were defective as they did not use the manifestation determination language that the manifestation determination team is selected “as determined by the parent and the LEA” (local education agency), did not advise the parent orally or in writing of the district/school IEP team members who would be attending the meeting, and did not notify the parent orally or in writing of her right to invite relevant members of the child’s IEP Team.
The district and the parent disagree on whether the school provided the mother with the Colorado Department of Education’s Procedural Safeguards Notice, but even if they did, this would not have supplied her with adequate notice concerning the IEP team members from the district/school who would be attending the meeting.
Since the mother did not have this information, she could not make an informed decision as to other relevant IEP Team members who should attend the meeting.
Manifestation Determination Process
Finally, the state complaints officer Cherry Creek stressed the collaborative, non-adversarial nature of the manifestation determination process. She noted that the Cherry Creek School District’s policies, which refer to the meeting as a “hearing,” demonstrate a fundamental misunderstanding of the law. The district is required to hold another manifestation determination review (MDR) with the right participants, review and change its policies, and train staff in the appropriate MDR process.
Staff Training Recommended
Disability Law Colorado has long advocated for schools to use their limited resources to train staff in how to better address the needs of children with disabilities, instead of spending money unnecessarily on attorneys because the law is not followed.
Many of the cases of difficult behavior that result in MDR, suspension or expulsion of students with disabilities could be diffused or de-escalated if staff were provided with the resources to support the children in their care.
Conclusions
This decision underscores the right of all children with disabilities—even those whose behavior is extremely difficult and disruptive—to a free appropriate education.
Disability Law Colorado always tries to work informally with schools and school districts to address cases before litigation becomes necessary. In this case, legal action was imperative to protect the rights of the child, and we believe the decision by the Colorado Department of Education will forge systemic change in school districts throughout the state.
