In this manifestation determination example, you’ll follow along as a mother navigates the manifestation determination process to keep her son in school.
See effective advocacy strategies in action, applied to a specific situation. Includes my commentary.
Introduction
Seth is an 11-year-old boy with autism who is about to get in serious trouble in gym class today.
We’ll follow Seth’s story to see how his mother, Lynn, handles the manifestation determination that follows.
You’ll see effective strategies applied to a specific situation. And you’ll see what the whole process actually looks like from start to finish.
Although this manifestation determination example is a hypothetical story, it’s based on my experience with actual manifestation determination cases and it’s intended to be a very realistic and true to life case study.
This case study shows the application of principles and strategies discussed in several articles on the Manifestation Determination For Parents website (www.manifestationdetermination.com). To get the most out of this case study, I encourage you to read those articles first if you have not already done so. They are:
– What Is A Manifestation Determination
– How To Prepare For a Manifestation Determination
– How To Win A Manifestation Determination Hearing
Let’s get started…
Seth’s Very Bad Day
Seth is an 11-year-old boy with autism. His class goes to gym at 10:30 today. Seth usually has an aid with him in gym class.
But not today.
The aid called in sick, and the substitute aid that was with Seth earlier has been called to another classroom to help another student.
Seth’s teacher decided that Seth didn’t really need the aid for gym. It’s just gym class. What could go wrong?
The class enters the gymnasium as usual. Today, the gym teacher is going to teach the students how to juggle.
After a demonstration by the teacher, the students take turns trying to juggle using hollow plastic bowling pins. Eventually, it’s Seth’s turn to try.
He’s been watching the other students off and on. He doesn’t really get what they’re doing, but it looks fun. So he takes the pins in his hands. Everyone is watching to see what he will do.
He throws one of the pins as high as he can into the air and watches it sail across the gym.
It flies in the direction of girl who is sipping water from the drinking fountain in the corner. As the bowling pin starts to come down it becomes apparent to everyone that it’s heading right for the girl. But before anyone can shout out a warning, it strikes her on the back of the head.
Since the bowling pin was hollow and light, the blow itself was harmless. But it caused the girl to reflexively jerk her head downward into the drinking fountain, splitting her lip and breaking her front tooth. Blood gushed everywhere as she began wailing in pain.
The school nurse was called. The girl’s parents were called, who rushed her to the emergency room for medical treatment. And Seth’s mother, Lynn, was called to come pick Seth up immediately.
Lynn was at work when the call came. The school secretary told Lynn that she needed to come pick Seth up and take him home for the day. When Lynn asked what was wrong, the secretary would only repeat that “there has been an incident” and that “it’s an emergency”.
Lynn asked if Seth was hurt. The secretary wouldn’t answer, saying she was not at liberty to provide any details. Lynn assumed the worst and ran out the door.
She called her boss on the way to the school to apologize for leaving and explain what was happening. As she drove, her mind raced through one worst case scenario after another, each more horrendous than the one before. Why couldn’t the secretary just tell her what was going on?
When Lynn arrived at the school she was met by the principal. He told her only that Seth had hurt a little girl with a bowling pin in gym class and the girl had to go to the hospital. The principal said he was still unclear on exactly what happened, but that Seth was suspended pending investigation. He Told Lynn that she would receive some paperwork in a few days with more details. In the meantime, she was to keep Seth home.
Lynn was relieved that Seth seemed to be okay. At that point, she just wanted to get him home.
She took Seth and left the school. She was confused and upset. Seth also seemed pretty agitated, but his limited communication skills prevented him from being able to talk about what happened.
He wouldn’t or couldn’t answer any of her questions as they drove home. She tried to keep her questions simple, but he wouldn’t respond to them. He wouldn’t look at her. He stared out the window as he silently rocked back and forth in his seat.
Finally, she asked him the question she always asked him after school, the one they had been practicing for over a year. “Seth, did you have a good day or a bad day?”
“DID YOU HAVE A VERY BAD DAY!” he shouted.
“Did you have a very bad day?” Lynn repeated.
“Yes” he replied bluntly. And that was all he said.
Lynn took him home, did her best to settle him down, and wondered what would happen next.
A few days later, Lynn received a “disciplinary notice” from the school. It was a vague form document.
It said Seth was “suspended indefinitely pending expulsion” for “assaulting another student with a bowling pin”. It also indicated that Lynn would be receiving an additional notice of a disciplinary hearing with the superintendent.
Expulsion? Assault? With a bowling pin? Lynn couldn’t wrap her mind around that. This couldn’t be her child. Something was very wrong about all of this.
The form didn’t provide any details about what actually happened, except for one line that said “Seth confessed that he threw a bowling pin at the other student. Resulted in serious injury.”
Serious injury? Had Seth really hurt someone? Another child?
Lynn couldn’t fight back the emotions sweeping over her. She had been through so much with Seth. She had worked so hard to get things moving in a positive direction. So, so hard. And things seemed to be going well lately. She had started to feel some stability. There were some days where she really felt on top of things, and hopeful about Seth’s future. Then this.
One event is all it took for everything to start spinning out of control again. What would happen if Seth got expelled? How would he learn? How would he get the socialization he needed so badly? And how would she work? Tears came, and eventually a blessed numbness, but no answers.
Commentary – Problems with disciplinary notices
The notices provided by schools in disciplinary situations are often woefully inadequate to tell the parent what actually happened. Even when notices provide some detail, they are notoriously one sided, inaccurate, or incomplete.
As a parent, you should not rely on the information in the disciplinary notice alone, nor should you assume that the disciplinary notice contains all available information.
There is much more you need to know about what happened. You need to find out the truth about what really happened, and you need all of the details. That includes the details about your child’s behavior, but also the details about the surrounding circumstances.
In order to get those details, you are going to have to be proactive and go digging for them. You are going to have to talk to people, ask questions, request documents.
As we’ll see shortly, the details will change everything for Lynn. Notice what she does to get that additional information.
A Call From The Teacher
Later that day, Lynn got a call from Seth’s special education teacher informing her that Seth was being scheduled for a manifestation determination.
“What’s a manifestation determination?” Lynn asked.
“It’s part of the student discipline process for special needs students” the teacher replied. The teacher provided no further explanation, but her tone made it sound like this was just some procedural formality. They worked out a date and time for the manifestation determination meeting, to occur 5 days later.
Before getting off the phone, Lynn asked the teacher what happened that day in gym class. The teacher said she didn’t exactly know, she wasn’t there, and suggested talking to the gym teacher.
After a bit of phone tag, Lynn got the gym teacher on the phone and asked him what had happened. He told her the whole story, exactly as it had occurred.
She also asked the gym teacher what a manifestation determination is. He said “I don’t know, apparently it’s some kind of formality that the special ed kids have to go through before they get expelled”.
Lynn got off the phone more confused than ever. None of this was making any sense.
The disciplinary notice called Seth’s actions an “assault”, but what the gym teacher described sounded like an accident.
And the disciplinary notice said that Seth “confessed”. But how could Seth “confess” with his severely impaired language skills? He hadn’t been able to communicate anything to her about what happened, how could he have told the principal anything?
Lynn was getting a growing sense that maybe things were not as they appeared. Maybe the school was making some kind of mistake. Maybe there was hope here after all.
She realized that she was going to have to get on top of this and not just let it happen. She needed to figure out what was going on.
She turned to the internet to find out more about this manifestation determination procedure. And after many hours of research she came to an understanding of what it was and what she needed to do about it.
Commentary – What a manifestation determination is all about
Through her research, Lynn learned that the manifestation determination is basically a student discipline defense procedure for students with disabilities. But unlike other defense procedures, it is not about guilt or innocence. It’s about whether the misbehavior was caused by the student’s disabilities. If so, the misbehavior is deemed a “manifestation of a disability”.
More specifically, a “manifestation of a disability” means the misbehavior that got the child in trouble was either :
- “caused by, or had a direct and substantial relationship to, the child’s disability”, or
- “the direct result of the LEA’s failure to implement the IEP” (LEA means the school)
If one of those two conditions is met, then the misbehavior is deemed a “manifestation of a disability”.
Lynn also learned that if the misbehavior was a “manifestation of a disability”, then the school cannot punish the student for that misbehavior.
She also discovered that it is usually much easier to prove that a misbehavior was caused by a disability than to prove that it was caused by the school violating the IEP. That’s because violating an IEP is illegal, and schools are very reluctant to admit that they did something illegal (as we’ll see later in the story).
Finally, she learned that the manifestation determination process is conducted in the form of a meeting, similar to an IEP meeting, and that “relevant members” of her IEP team would be there.
Lynn concluded that she needed to go to that meeting and convince everyone that what happened in the gym that day was caused by Seth’s autism, and thus was a “manifestation of a disability”. If she could prove that, then the school could not punish Seth. No more suspension, and no expulsion.
But was the incident really caused by Seth’s autism? And if so, how could she prove it? Would the school even listen to what she had to say about it?
Let’s see what Lynn does next.
Lynn Investigates The Facts
One thing that puzzled Lynn about the situation was Seth’s confession.
Lynn knew that Seth’s language skills were inadequate to communicate such things. His verbal ability to answer questions was pretty much limited to answering simple yes or no questions.
So Lynn called the principal and asked him what Seth had actually told him about the incident. The principal replied “He confessed to the whole thing”.
“Okay”, Lynn said, “I get that you’re saying he confessed, but what I’m asking is what did he actually say?”.
“He said he intentionally threw the bowling pin at the girl because he thought it was funny” the principal replied.
“He most certainly did not say that. My son is incapable of putting together such sentences. I’m asking you to tell me exactly what words actually came out of his mouth.”
The principle paused and let out an exasperated sigh. “Okay, I asked him if he threw the bowling pin, and he said ‘yes’. I asked him if he intentionally tried to hit the girl with it and he said ‘yes’. I asked him why he did it and he didn’t say anything so I asked him if he thought it was funny, and he said ‘yes’. So you see, he confessed to the whole thing.”
Lynn bit her tongue and tried to stay calm. “My son has severely impaired language skills. He can’t understand the kinds of questions you were asking him. His ‘yes’ responses didn’t mean anything”.
“I disagree. You weren’t here. I was looking right at him. He knew what he was saying.”
Lynn could tell the principal was getting irritated with her, and that he wasn’t going to listen to what she was saying. And she was about to lose her cool and say something she would regret. So she politely thanked him for speaking with her and hung up.
Her next call was to the school’s speech therapist.
Lynn conveyed what the principal had said about the confession. The speech therapist agreed with Lynn that Seth’s ‘yes’ replies to those questions were probably meaningless. Lynn told the speech therapist that she needed her to come to the manifestation determination and explain that to the principal. The speech therapist said she was planning to be there.
Next, Lynn wanted to verify what the gym teacher had told her about what happened. She wanted to make sure he had told her everything that occurred. So she called Seth’s classroom to talk to the aid who would have been in gym class with him that day.
The teacher answered and Lynn asked to speak with Seth’s aid. The teacher explained that the school has a policy that aids don’t communicate with parents, and that she (the teacher) could answer any questions Lynn might have.
Lynn explained that she wanted to ask the aid what happened in the gym, and that she really needed to talk to the aid directly about it.
The teacher paused a long while, and eventually explained that the aid was not in the gym that day because she had called in sick. Lynn then asked if she could talk to the substitute aid that was with Seth in the gym that day.
After another long pause, the teacher finally admitted that there was no aid with Seth in the gym that day. She explained that they were short-handed and the substitute aid had been needed in another classroom during that period.
“But doesn’t Seth’s IEP say he’s supposed to have an aid in gym class?” Lynn asked.
“His IEP says he is supposed to have adult assistance throughout the day” the teacher replied matter-of-factly. “The gym teacher was providing the adult assistance in gym class that day.”
“I see” Lynn said, biting her tongue again. She realized that there was nothing more to be learned from the teacher so she politely thanked the teacher for speaking with her and hung up.
She then called the office and requested all the records related to the incident. The secretary put her through to the principal.
Lynn requested the investigation report, witness statements, pictures, any video tape they might have showing what happened, and any other records of the incident.
The principal said there were no pictures or video, but he would email her the documents she requested.
A few hours later the documents came to her inbox.
The investigation report said that Seth had thrown a bowling pin at a female student, striking her in the face and causing her serious injury requiring medical attention. It went on to say that this information came from several witness statements. It also said that “Seth confessed to this, and said that he intentionally threw the bowling pin at the other student because he thought it was funny”.
Lynn was becoming furious. How could the principal so mischaracterize what had happened? She turned to the witness statements to see what the witnesses had actually written.
The gym teacher’s written statement was consistent with what he had told her on the phone, but wasn’t nearly as clear or detailed about it. It said that when Seth was given the bowling pins “he threw one and it hit a female student in the head. She injured her mouth and was bleeding, at which point I called the office”.
A written statement from one of the students said “Seth was goofing around with the bowling pins and threw one and it hit (name redacted). She was bleeding all over her face.”
Another student’s statement just said “Seth threw a bowling pin and hit (name redacted) in the head.”
The witness statements were true enough, but they were missing important details. They were misleading.
The principal wasn’t there. He only knows what the witnesses told him. And if this is what the witnesses told him, then Lynn could see why the principal was doing what he was doing.
She also realized that the principal didn’t really know Seth. To intentionally hit another student with something would have been totally out of character for him. He had some aggression issues when he was in preschool, but that had been resolved long ago.
Seth was not aggressive with other students at all now, not for years. Not even when he would get frustrated or angry. Sometimes he would hit himself if he got upset, but not anyone else.
And Seth wasn’t very good at throwing things. “Seth couldn’t hit the side of a barn if he was standing inside” Lynn chucked to herself.
But the principal didn’t know these things about Seth. Because the principal had never actually spent 30 seconds with Seth prior to the incident.
Commentary – Doing your own investigation
Lynn is doing her own investigation into what happened, getting as many details as she can, and drawing her own conclusions. She is not relying on what the principal told her, or what the principal believes happened. That’s good, because the principal seems to be wrong about a few things.
This is extremely common. And it’s one of the reasons you need to do your own investigation and figure out what really happened for yourself. Sometimes the school administrators get it wrong.
There are many different reasons why this can occur. I’ll summarize a few of the most common to give you an idea of what to look out for.
One typical problem is that witnesses who are children do not have very good communication skills. When they tell the story of what happened, they sometimes use poorly chosen words and ambiguous phrasing, and leave out important details. They may also state their opinions or suspicions about things as if they were facts that actually happened.
Another common problem is that the principal who is evaluating a child’s behavior and intentions may not know the child at all. This lack of context makes it hard for the principal to correctly interpret what really happened and why.
Also remember that school administrators are extremely busy. They simply do not have all day to play detective when investigating a disciplinary incident. They have to figure out what happened as quickly as possible. In some cases, this can lead to a rush to judgment, where the principal starts to think they know what happened, and then they stop investigating, or they view all the information they receive through the narrative they have already adopted.
All of the above can play into producing a false confession, too. The accused student doesn’t have good communication skills to begin with, and they are nervous sitting in the principal’s office being questioned. They may misunderstand questions, or misstate their answers.
And if the principal has already concluded the student is guilty, he may simply ignore the student’s denials and keep asking the same questions until the student says something ambiguous that sounds like a confession to the principal. The principal means well. He believes he has a naughty child in front of him who is lying to him, and it’s his job not to let the kid “get away with it”. But such dynamics can produce false confessions.
Lynn is figuring out what actually happened, as well as gaining an understanding of what mistakes the principal is making and why. She’ll need to correct his mistakes. But how is she going to do that when he doesn’t seem interested in listening to what she has to say? Let’s find out…
If only the principal knew Seth better. But when she tried to explain Seth’s language deficits to the principal, he wouldn’t listen. She realized that he probably wasn’t going to listen to her about anything else either.
How to get through to him…
She got out Seth’s special education records – his IEP, his evaluations, notes from the teacher from the last few years. She had them all shoved together in a big file. She put them in order and started reading through them to see if anything in there would help convince the principal.
It was pretty much all there, but in bits and pieces. A comment here, and observation there, a low score on a motor skills evaluation…
There was lots of information about Seth’s language deficits. The IEP even said “Seth’s ability to answer questions is limited to yes or no questions, and only to simple concrete questions about things he is familiar with”.
None of the documents said anything about his throwing skills, but they said that he needed physical therapy for “significant delays in gross motor skills” and mentioned that he is “extremely clumsy” and “trips over things, including his own feet, so frequently that it represents a safety risk”. They also said he needed occupational therapy for his “severely impaired fine motor skills”.
She found another passage that talked about Seth not understanding how to participate in new activities. It said that he won’t follow instructions because he doesn’t understand them. It said when teaching Seth a new or novel activity, someone needs to help him hand-over-hand numerous times until he gets the hang of it and understands what’s expected.
She also found a passage that talked about Seth having poor motor planning skills. It said he had difficulty understanding cause and effect, and an impaired ability to plan or coordinate sequences of actions.
Nothing in any of the documents mentioned anything about aggression. To the contrary, the IEP described him as being “nice”, “kind” and “well liked by the other students”.
He did have a behavior intervention plan, but it was to prevent him from hitting himself when upset. There was no mention of being aggressive toward anyone else.
It seemed to Lynn that these documents would be helpful, though she wasn’t sure just how yet. She went through with a highlighter pen and marked all those passages she thought might help her.
Commentary – The importance of special education records
It’s not enough to know what happened. It’s not enough to know that what happened was caused by your child’s disabilities. You have to be able to prove it. Sometimes you have to prove it to people who have already made up their minds and/or who view you as having little credibility.
Your child’s educational records can be a big help. School officials may discount or ignore your beliefs, opinions or other input. But it is very hard for them to ignore what their own records say about your child.
To the contrary, whatever is stated in a child’s special education records is generally treated as indisputable reality by the school. So it is very important for you to go through those records and identify relevant information that can help you prove your points.
Don’t assume that the school officials already know what those documents say. Some of the school officials may have known at one time, but have since forgotten. Others, including general education administrators like the principal or superintendent, may never have read them at all. And they may be too busy to read them carefully before the manifestation determination meeting.
It is up to you to take the time to review those documents carefully, scour them for any facts or statements that support the points you want to make, and bring those passages to the school’s attention later at the meeting.
Lynn Finds The Causal Connection
It was obvious to Lynn that this whole incident was caused by Seth’s disabilities. It was a mistake, an accident, that happened because Seth didn’t know what he was doing. But while this was common sense to her, she knew it was far from obvious to the principal, and perhaps others wouldn’t see it so clearly either.
She had to be able to spell it out for them.
So she sat down and thought things through until it was crystal clear in her mind, until she could articulate it in words, logically and in detail. Then she wrote it down so she wouldn’t forget it.
She started with the fact that Seth’s IEP states that he doesn’t “get” new activities. He has to be shown, hand over hand, numerous times to understand what to do. He can’t just follow the instructions given.
Juggling was a new activity. Nobody showed him hand over hand what to do. He didn’t understand the instructions. He didn’t understand what was expected. He saw the other kids tossing the bowling pins in the air. So that’s what he tried to do.
She worked her way through each issue the same way.
He didn’t intend to hit the girl, proven by his school records saying that he is not aggressive, and with his poor motor skills he couldn’t hit someone intentionally if he wanted to. Logically, this had to have been an accident.
His confession to the contrary should be disregarded. His school records document that he wouldn’t have been able to understand the questions or meaningfully participate in that conversation. The speech therapist had said the same thing.
He couldn’t have even anticipated what might happen if he threw the bowling pin high in the air. His school records say he has difficulty anticipating cause and effect, and that his ability to plan sequences of events is impaired.
She wrote all this down to take with her to the meeting. Writing it down in such detail really helped her clarify in her own mind how each thing was related. And having it written down meant she didn’t need to worry about getting flustered in the meeting and maybe forgetting something important.
“This should convince that principal” she said to herself.
But then a thought occurred to her – what if there are others at the meeting who want to see Seth expelled. How do I convince them? I don’t even know who they are, how many there will be, or what they are thinking.
Lynn Looks For Allies
Lynn picked up the phone and called the special education supervisor who comes to her IEP meetings.
Lynn asked her who would be coming to the manifestation determination meeting. The supervisor informed her that she should have received an invitation in the mail listing the other invitees. Lynn said she hadn’t received that yet. So the supervisor rattled off the list.
Gym teacher, classroom teacher, speech therapist, herself (the supervisor), the special education director, the principal, and the superintendent.
Lynn was very uncomfortable with the list.
First of all, she had never met the superintendent or the special education director. Why were they coming? She was pretty sure they didn’t know Seth.
And where was the rest of the IEP team? Where were the physical and occupational therapists? Where was the school psychologist?
The supervisor explained that the superintendent was coming because under district policy he has to approve any expulsion, so he is involved in the disciplinary case. The special education director is coming because she comes to all manifestation determination hearings to make sure they are done correctly.
Lynn asked if the school psychologist and the other therapists could be added to the list. “Sure” the supervisor said, “the list is supposed to be by agreement between the district and the parent, so if you want them there we will have them there”.
Lynn started to feel a little better. But she was dying to know what the supervisor was thinking about all this. So she asked.
“Do you think what happened was because of Seth’s autism?”
“Well, that’s what we’re going to try to figure out at the meeting” the supervisor replied.
“C’mon, you’ve been to all the IEP meetings, you know Seth. You know he would not have intentionally done that.”
“Honestly Lynn, I just don’t know. I would hope not. But I wasn’t there. I don’t really know what happened. From what the principal told me, it sounds pretty bad.”
“But the principal has it all wrong” Lynn said. She then went on to explain everything she had discovered, and the mistakes the principal had made in interpreting the events.
“Hmmm” the supervisor replied. “Well, now I’m more confused than ever. This is why we have these meetings, to get everyone in the same room at the same time and hash all this out. I hope you’re right though. I’d hate to see Seth get expelled. Good luck, I’ll see you at the meeting.”
Lynn thanked the supervisor for listening and hung up.
Lynn knew who she had to call next. The superintendent.
She swallowed hard. If the superintendent had to approve any expulsion, then it was going to be really important to help him understand what this was all about.
She realized that the only information he was getting was probably from the principal, and that information was all wrong.
She tried repeatedly to get the superintendent on the phone, but was unable to connect with him. He never returned any of her calls.
In the meantime, she reached out to the special education director. She got the director on the phone, but the director was not interested in having any discussion about the case. “I don’t know what happened” the director said, “that’s why we have the meeting, to figure it all out. We can discuss it then.”
Lynn thanked her for taking her call and hung up.
Next she called the school psychologist, who turned out to be very sympathetic.
“I think this was probably an accident” he said. “All things considered, with Seth’s disabilities, I don’t think he knew what he was doing.” Lynn confirmed that he was coming to the meeting, thanked him for his support and hung up.
Lynn doesn’t realize it yet, but all these phone calls she’s making are going to help her a lot when the meeting comes.
She was getting a picture of what each person thought, what each person knew or didn’t know, what each person understood or misunderstood.
There were still a few unknowns, and she decided to just assume those people would be against her at the meeting. Those people, plus the principal who was clearly against her, would be the people she would have to convince at the meeting.
Commentary – Finding out what others are thinking
One good way to prove things at a manifestation determination meeting is through the words of others. The school officials that are against you just don’t view your beliefs and opinions as having a lot of credibility. But they cannot so easily dismiss what their own personnel say, either live at the meeting or in the form of the school’s own records. So you use the words of others to make your points.
Lynn is going to show us how that’s done later when she gets to the meeting. But it’s all this preparation she’s doing now – before the meeting – that will enable her to do it. She has to talk to people before the meeting and find out what they are thinking so she knows what they are likely to say at the meeting.
Note that none of these people are legally required to have these preliminary conversations with Lynn. Those who do are doing so out of courtesy. So she is always polite and appreciative, even if she doesn’t like what they have to say. If you get rude or hostile while talking to school personnel, they will likely stop talking to you, and that will hinder your preparation efforts.
Lynn’s Final Preparation – And Her One Big Mistake
In the remaining few days before the meeting Lynn went through everything again in her mind and took some more notes. And she organized her records so she would be able to find anything she needed at the meeting quickly.
She also thought about hiring an attorney to represent Seth at the meeting. But when she started calling around, she couldn’t find one that knew anything about manifestation determination hearings. And as she talked to attorneys about fees, it became apparent she was not going to be able to afford an attorney anyway. She decided she would just have to handle it on her own.
Commentary – Finding an attorney or advocate to help you
This was a mistake on Lynn’s part.
In this manifestation determination example, Lynn encountered a common obstacle. She couldn’t find an attorney with expertise in manifestation determinations because she was looking in the wrong places. Such attorneys are few and far between, but they are out there. One way to find them is by looking in specialized directories that list special education attorneys who represent students and parents. These include yellowpageskids.com and the COPAA directory.
The cost of an attorney is a problem for Lynn. But that doesn’t necessarily mean she can’t get legal help. Some attorneys take cases on a sliding scale, adjusting the fee to the client’s ability to pay. Some may allow payment arrangements, or even take the occasional case for free (“pro bono”) when necessary.
There are also non-profit agencies that may be able to provide free legal help for those who qualify, such as Legal Aid or Protection and Advocacy agencies.
Lynn shouldn’t have given up so easily.
She also failed to consider using a non-attorney special education advocate, which is another option. They tend to charge much less than attorneys, and some work for free. They can be found through the same directories mentioned above.
Had Lynn set out to find an attorney or advocate right at the beginning, she might have had time to find one and work out the details to get that extra help. Part of her mistake was waiting until the last minute to look into this.
She is out of time now. The day of the manifestation determination hearing has arrived.
Lynn Makes Her Case At The Manifestation Determination Hearing
Lynn was extremely nervous as she packed up her materials for the meeting. She loaded all of her school records, her notes, and a bottle of water. She said a quick prayer, took a deep breath and headed off to the school.
Lynn’s mother had come over to watch Seth while Lynn was gone. Lynn had decided not to bring Seth to the manifestation determination hearing.
She didn’t know whether he was required to be there or not, but nobody had told her he needed to come so she assumed this was okay. She didn’t think Seth would understand the meeting or be able to participate in any helpful way. But she was pretty sure the principal would try to put words in his mouth if given the opportunity, like he had during Seth’s “confession”. She wasn’t going to give him that opportunity.
When she arrived at the school the secretary directed her to the conference room. It was the same room where she had her IEP meetings for Seth. She walked into the room to find some people already there, but not everyone. She was glad she wasn’t late.
Those who had arrived before her were all familiar faces from Seth’s IEP meetings. They greeted her warmly. She replied in kind and began unpacking her materials, laying them out in front of her so she could access everything easily.
The remaining members of the team shuffled in over the next few minutes.
The special education director and superintendent came in and introduced themselves. Lynn managed to smile at them, shake their hands, and tell them it was nice to meet them.
The principal came in last and sat down next to the superintendent. Lynn forced a fake feeling smile and said “Hello”.
He smiled back and said “Good morning.” Lynn looked away, trying not to be too obvious about doing so. She was trying to keep her emotions in check, and the principal’s presence was making that difficult.
After all, this was all his fault really. Her anger simmered as the thoughts passed through her mind. If only he had done a more competent investigation. If only he would listen to her. If only he weren’t such a bull headed…
She closed her eyes, took a deep breath, and cleared her mind. Focus she told herself. Be angry later, right now just focus on the issues.
Then the special education director announced that it was time to get started.
The director passed around an attendance sheet. The situation reminded Lynn of her IEP meetings, except that there was an unfamiliar tension in the room. The principal and superintendent sat next to each other and looked out of place in their suits and ties.
Next the director passed out a packet of documents that included Seth’s IEP, the disciplinary notice Lynn had received, the principal’s investigation report and the witness statements. Everyone got a copy of each document.
Then the director passed around copies of a “draft” manifestation determination form that had already been partly filled out.
Lynn glanced down and tried to skim what was written, and it didn’t look good. It looked like the principal had written it.
Lynn’s heart began to pound. She didn’t know what to do. Was this whole process just going to be a rubber stamp for the principal’s expulsion request? She couldn’t let that happen.
“Ummm…” Lynn squeaked out, “I’m sorry, but there are things in here that aren’t right”.
The director responded “It’s just a draft. It’s a starting point for discussion. Everything in that draft is subject to change based on the team’s discussions and decisions today.”
The director then asked Lynn if the demographic information on the form was correct. It was.
The director moved down the form to the next box, which asked for a description of the student’s misbehavior. What was written there was “Seth assaulted another student with a bowling pin.”
While Lynn was thinking about how incredibly wrong that was, the director moved on to the next box which asked about Seth’s disabilities.
“Wait!” Lynn said. “Can we go back and talk about the behavior a little bit?”.
“Of course” the director said. “Did you have something you wanted to say about that?”
“Yes, what’s written there is not right. I think we should talk about what happened in detail.”
The principal spoke up. “I think we all know what happened.”
“I’m not sure we do” Lynn replied. “I talked…”
The principal cut her off. “Lynn, you and I talked about what happened and I told you everything. We gave you the investigation report and the witness statements too. You’ve seen all of that. It’s very clear what happened. I know you don’t want to believe it. But you’re looking at this situation through the eyes of a mother who doesn’t want to believe her child could do such a thing. As school officials, we have to be objective and deal with reality.”
“Just wait a minute, OK?” Lynn needed to regain her composure. She thought carefully about what to say next. Everyone was looking at her.
“I don’t think what’s written in this draft is an accurate description of what happened that day” she said, turning to look at the gym teacher. “Of all the people in this room, you are the only one who actually saw it happen. What did you see?”
The gym teacher looked nervous. “Uhhhhh….”
The principal cut him off. “He’s already given us a written witness statement which describes what he saw. You’ve read it Lynn. We’ve all read it. We all know what happened. That’s really not what we’re here to decide.”
Just then the superintendent joined in. “Lynn, this isn’t a disciplinary hearing per se” he said. “We aren’t here to decide Seth’s guilt or innocence.”
Then the director spoke up. “Actually, the superintendent is right that this is not a disciplinary hearing, and it isn’t for this team to decide guilt or innocence. However, we do have to decide whether the conduct in question was caused by a disability, and we can’t really do that if we don’t have a clear picture of what the student’s conduct was. So if there is confusion or disagreement about that, we need to discuss it and try to get on the same page about exactly what happened.”
She turned to the gym teacher and said “Why don’t you just tell us what happened that day”.
The gym teacher told the story exactly as he had told it to Lynn before, exactly as it had actually happened. He stuck to the facts, and didn’t offer any opinions or characterizations.
When he was done, the principal immediate jumped in and added “Which is exactly what this MDR form says.”
“The form makes it sound like Seth did this intentionally” Lynn said, gesturing to the gym teacher. “What he just described sounds like an accident”.
The superintendent said “Again, this isn’t a disciplinary hearing. Guilt or innocence isn’t an issue for this meeting”.
“I know” Lynn said, “but that’s not my point. I don’t think it’s accurate to say that he threw the bowling pin at the girl. From what the gym teacher says, it sounds like he threw it up in the air. I think there’s a big difference between those two things.”
Out of the corner of her eye, Lynn noticed several heads nodding in agreement with her. She started feeling a little more confident.
“Ok” the superintendent said, “that’s your opinion and you’ve made it known. We’ve heard what the gym teacher has to tell us about what happened”. He turned to the director. “Let’s move on, shall we?”
“Wait” Lynn said. “I want to know whether the gym teacher thinks this was intentional or not.”
The gym teacher waived off the question “I can’t read Seth’s mind.”
“No, but you were there” Lynn said. “You watched Seth throw that pin. Did it look like he was throwing it at the girl?”.
“No, that’s not what it looked like” the gym teacher said. “In fact, he wasn’t even looking at her when he threw it. He was looking up.”
“Alright now listen” the principal interrupted, “this has gone far enough. That’s his opinion. He wasn’t the only witness. We have many other witness statements that all say that Seth threw the pin at the other student”.
“I disagree” Lynn said. “I don’t think any of the witness statements actually say that.”
The principal pulled out the witness statements and looked at them silently for moment. His face twisted as he realized Lynn was right. “What’s your point? And why is this even relevant?”
“We need to get on the same page about exactly what Seth did, so we can decide whether what he did was disability related behavior” Lynn said, adding “like the director said.”
The director nodded in agreement.
The principal responded. “I know darn well what happened, and I’m sorry but I can’t let you twist it around like you’re doing. I know you want to give Seth the benefit of a doubt. He’s your son. But Seth is autistic, and you know how autistic kids can be.”
“No” Lynn said, leaning back in her chair, “tell me how autistic kids can be.”
“They can get aggressive. I’ve dealt with lots of autistic kids at this school over the years, and they’re prone to aggression. Seth isn’t the first one to hurt somebody.”
“They’re not all like that” Lynn replied. “Seth isn’t like that at all.”
“That’s what they said about that autistic kid that shot up Sandy Hook. We’re not going to have another Sandy Hook at this school, not on my watch. I consider keeping kids safe to be my highest job priority, and I’m darn well gonna do it.”
“Ok” interrupted the director. “This case has nothing to do with Sandy Hook, and we’ve gotten way off topic. I think it’s time to move on to discuss Seth’s disabilities.
Lynn wanted to respond to the principal, but she realized the director was right about being off topic. And the director seemed to be taking Lynn’s side on a lot of things. Lynn decided to follow the director’s lead and let it go. Thanks to the gym teacher, the real facts had gotten out. Everyone had heard what actually happened.
The draft form had a one-word answer in the box asking for a description of Seth’s disabilities. It just said “autistic”.
“Does everyone agree that Seth has autism?” the director asked.
Everyone nodded in agreement.
Then the director started to move on to the next box.
“Wait” Lynn said. “Autism affects different kids differently. Don’t we need to talk about how Seth’s autism affects him individually?”
The director shook her head. “The box just asks what the disability is.”
The superintendent added “Everyone knows what autism is.”
To Lynn’s surprise, the school psychologist jumped in. “Autism is a spectrum disorder. Just putting the word ‘autism’ on the form really doesn’t tell us anything meaningful about Seth’s disabilities or how they affect his behavior. “
The director turned back to Lynn. “Ok, well, what do you want us to know about Seth’s disabilities?”
Lynn was starting to feel like she was getting the hang of this. She was starting to realize that they don’t listen to her very much, but they do listen to each other.
So she started going through the school records, document by document, page by page, highlighted sentence by highlighted sentence. Word for word she read all of the passages she had highlighted earlier. Everyone listened quietly. As she read, she could see some heads nodding. People were agreeing with what she was saying. Why wouldn’t they – these were their own words, not hers. These were their opinions, not hers.
When Lynn finished, the director asked if anyone had anything else to add.
Nobody said anything. So she moved on.
“Let’s see…” the director said, “we’ve discussed the student’s IEP and other records, parent input…”. She was checking boxes on the MDR form as spoke.
“Nobody had anything further to add…so the next issue is whether the conduct in question was caused by or substantially related to the disability.”
Lynn knew that this was the key question the whole meeting was really all about. She wanted to get this part of the discussion started on the right track, so before anyone else could say anything she said “Yes, his behavior was caused by his autism.”
“How so?” the Director asked.
Lynn opened her mouth, but nothing came out. Everyone was looking at her. The principal was glaring at her. She knew the answer, but she couldn’t find the words to explain it.
Then she remembered the notes she had written. It was all there. She picked up her notes and started talking, running through her whole analysis just as she had written it.
As soon as she had finished, the principal spoke up. “Lynn, I’m sorry, but your just not dealing with reality here. He confessed. He admitted that he intentionally hit that girl with the pin, and that he did it because he thought it was funny. That’s not about being disabled. That’s not about failing to understand an activity. He knew what he was doing and he did it intentionally.”
Lynn opened her mouth to respond, but then remembered – they don’t listen to me, they listen to each other. Lynn turned to the speech therapist and asked “Given Seth’s language skills, do you think Seth understood what he was communicating when he ‘confessed’?”
The speech therapist paused thoughtfully. “Seth has very limited language skills. He can’t really have a reciprocal conversation. He doesn’t understand a lot of abstract concepts. Any verbal communication with him has to be very concrete for him to understand it.”
“He knew what he was saying” the principal replied. “I was looking right at him. He understood.”
Lynn spoke up and told the team what the principal had told her about the confession, that he had asked Seth leading questions to which Seth just kept replying “yes”.
“That wouldn’t be meaningful” the speech therapist said. “In that context, with that subject matter, I can’t imagine Seth understood what you were asking him. For example, he doesn’t understand what the word ‘intent’ means, it’s an abstract concept. If you asked him whether he intended to hit the girl and he said yes, then that was a meaningless answer.”
Lynn turned to the psychologist. “Do you have any thoughts on this? Do you think he would have understood what he was being asked?”
“No. Asking him to assess what his own intentions were during a prior event…I don’t think he could grasp that at all.”
The teacher spoke up next. “If you ask Seth a yes or no question that he doesn’t know the answer to, he’ll just guess. He’ll just pick one and say it. He doesn’t know how to say ‘I don’t know’ or ‘I don’t understand’. Sometimes he will toggle back and forth between the two. He’ll try ‘no’, and if your response suggests that wasn’t the right answer he’ll try ‘yes’. He’s not really answering the question at all, he’s just trying to give you what you want so you stop asking him the question.”
There was a long silence. Finally, the superintendent spoke up. “Okay, let’s put the confession aside for a moment. I’m trying to make sense of all of this. What Seth actually did was throw a bowling pin up in the air. Whether he was intentionally aiming it at someone or not may be in question, but I think everyone would agree he threw the pin, right?”
Everyone nodded in agreement. “Okay, so how is that disability-related? How does being autistic cause Seth to throw the pin?” he asked, looking right at Lynn.
“Because of his autism” Lynn replied, “he didn’t understand the activity. He didn’t understand what he was supposed to do with the pin. He had seen the other kids ‘throwing’ the pins, so he threw it too, but in an inappropriate way because he didn’t understand the nuances of the activity. And because of his autism, he didn’t anticipate the consequences of his actions. He couldn’t anticipate that if he threw it up in the air that it might come down and hit someone.”
Lynn quickly turned to the psychologist for his endorsement, saying “Would you agree?”
“I think that’s probably correct” he said.
The superintendent nodded his head slowly, soaking it all in. Then he turned back to Lynn and said “So a little girl is rushed to the hospital bleeding, and it’s all just a big accident? It’s nobody’s fault? Is that what you’re telling me?”
Before Lynn could respond, he spoke again. “I have a hard time accepting that. School is supposed to be a safe place. We take school safety very seriously. If a child gets rushed to the hospital, something went wrong and it’s my job to find and fix the problem so it doesn’t happen again.”
“I know”, Lynn said. “And I feel terrible for that little girl. I’m so sorry that all this happened. But punishing Seth for being autistic isn’t the answer.”
Lynn turned to the director and said “Isn’t that the point? Isn’t that why we have these manifestation determinations, to make sure we aren’t punishing kids for being disabled?”
The director nodded. “To make sure we aren’t punishing kids for disability-related behavior, yes.”
There was a long silence in the room. Finally the director broke the silence. “I need to put an answer on the form. The question is whether the conduct was caused by or substantially related to Seth’s disability.”
Again, Lynn jumped in. “It was.”
The director looked around the room. Half the people were nodding their heads, but nobody spoke. “Does anyone disagree?” Nobody did. “Ok then, the answer is yes. Moving on…”
Lynn felt a rush of victory sweep over her. She understood enough about this procedure to realize she had just won. She wanted to jump out of her chair. But the meeting wasn’t over yet.
“The next question” the director continued, “is whether the IEP was being fully implemented, which I assume it was?” She looked over at the classroom teacher, who nodded her head.
“Ummm…” Lynn said, “Seth was supposed to have an aid with him in the gym that day, and he didn’t.”
The teacher responded quickly. “The IEP says he is to have adult assistance, which was being provided by the gym teacher.”
The director pulled out her copy of the IEP and studied it for a moment. “It just says adult assistance. It doesn’t specifically say he will have a 1 on 1 aid in gym class.”
“Well at the IEP meeting that’s what we were talking about, that’s what was meant by adult assistance” Lynn said.
The director shook her head. “We go by what’s written in the IEP document, which just says adult assistance. He had adult assistance, so the IEP was being fully implemented. However, it may be that he needs more direct assistance and that is certainly something to address through the IEP process immediately” she said, looking at the teacher.
“The next question” the director said “is whether the conduct in question was a manifestation of a disability. However, we have already agreed that the conduct was caused by the disability, so we are required to answer yes to this question. The conduct was a manifestation of a disability.”
“Before we finish up here” the superintendent said, “I think we need to discuss special circumstances.”
“Special circumstances?” the director replied.
“I think we have special circumstances here” the superintendent said. “Seth injured another student. That’s one of those special circumstances that requires an interim alternative educational setting, right?”
“Uh…well…” the director said reluctantly, “injuring another student is one of those special circumstances that can justify an IAES. That would be an administration decision. But I don’t really think it would be appropriate here. An IAES is optional, not mandatory. And an IAES is about school safety. It’s about keeping the school safe when a student’s disability related behaviors represent a high risk to the safety of students or staff in the future. This incident appears to have been an isolated incident and an accident. I don’t see anything here that suggests Seth is any significant threat to anyone’s safety going forward.”
“I see” the superintendent said.
There were a few other details discussed about setting up an IEP meeting the following week to address the adult supervision language in the IEP, and whether any changes would be needed to the behavior intervention plan.
And then it was over. Everyone got up, shook hands and said their goodbyes. Seth was to return to school the next day. There would be no expulsion. No superintendent hearing.
It was over.
Lynn headed home to tell Seth the good news.
Commentary – What happened at the meeting and why
Lynn realized that the school personnel listen to each other a lot more than they listen to her. So she became a conduit for information rather than a source of it.
Most of what she said that got traction wasn’t stated as her own personal opinion, it was stated as the opinion of others. She read from the IEP and evaluations. Instead of making a point herself, she would ask the question to someone else and have them make the point with their answer.
She was able to do that because she knew what they would say. She knew what they would say because she talked to them before the meeting.
She had taken the time to go through the school records carefully before the meeting. She found and highlighted relevant passages. She took notes. She thought things through and wrote out talking points.
So when she was in the meeting she was not having to make it up as she went along. She knew what needed to be said, she knew where the documents said it, and was ready to read them aloud as needed.
All of this came from preparation before the meeting. Proper preparation before the meeting is the key to success at the meeting. Lynn would have had a very different outcome if she had not done all that work ahead of time.
When Lynn walked into that room, she already knew what half of the people there thought, and what they would say if asked. And she knew more about what actually happened than the principal did.
All of that came from preparation.
She also held her ground. Others argued with her, talked down to her, told her she was wrong, and even interrupted and talked over her. She didn’t attack them, but she didn’t retreat either. She stayed focused on the issues, persistently pursued what was right, and kept asserting what needed to be said in the face of opposition. Pleasantly and politely, but persistently.
And that’s how it’s done. Nice job Lynn.
I should also point out a few mistakes Lynn made, or at least things she did that I wouldn’t necessarily recommend.
As noted earlier, she waited until the last minute to consider hiring professional help, and then quickly assumed she couldn’t afford it and gave up. She should have started her search for an attorney or advocate right from the beginning, and not given up so easily, She might have found someone who could help her within her budget.
She also didn’t tape record her meeting. I usually recommend taping a manifestation determination meeting. If you are going to do so, make sure you let the school know ahead of time. In some jurisdictions, there are strict requirements that you provide advance notice of your intention to tape the meeting.
Not bringing Seth to the meeting was a smart move under the circumstances, but an unusual one. In most cases the student is expected to come to the manifestation determination meeting, and their participation can be quite helpful in many situations.
But that wasn’t true in Seth’s case. He would not have been able to meaningfully participate in the discussion, and the principal might well have tried to use the opportunity to ask Seth leading questions and get him to “confess” all over again in front of the manifestation determination team. Such manipulation can happen, and that possibility is something to take into consideration. Just be aware that the school will normally expect your child to come to the meeting, so if you decide not to bring them you should let the school know ahead of time and try to get agreement on it.
I hope you found the story of Seth’s Very Bad Day enlightening and informative. Although this manifestation determination example and case study was loosely based on my experience in actual manifestation determination and student discipline cases, the story and characters are fictional, and any similarity to real people or events is strictly coincidental.