KBS Reference Desk: Discipline with Pending Special Education Evaluations

Q:        Campus administration has proposed a 60-day DAEP placement for a student. The parent requested an evaluation for special education prior to the conduct in question, but it is not yet complete. Does the district have to conduct a Manifestation Determination Review (“MDR”)?   

A:        Yes. An MDR is required when the district “knows” or “should have known” of a disability prior to the behavior in question. Here, an MDR is required for the student because the Individuals with Disabilities Act (“IDEA”) charges districts with “constructive knowledge” of a disability when an evaluation is requested prior to the disciplinary infraction.

As you know, the IDEA provides heightened disciplinary protections for eligible students with disabilities. One such protection is the requirement to conduct an MDR prior to implementing a disciplinary change of placement.

As a general rule, the MDR requirement only applies to students eligible for special education; however, for students who have not been evaluated, an MDR is still required if the district has constructive knowledge of the disability before the disciplinary infraction occurs. The IDEA’s implementing regulations charge districts with this constructive knowledge when:

(1)   The parent expressed concern for the potential need for special education in writing to the student’s teacher or to supervisory or administrative personnel prior to the conduct in question;

(2)   The parent requested an initial evaluation prior to the conduct in question; or

(3)   The student’s teacher or other district personnel communicated specific concerns regarding a pattern of behavior demonstrated by the student to the director of special education or other supervisory personnel before the conduct in question.

34 C.F.R. § 300.534.

Here, because the evaluation process began before the behavior occurred, the district is deemed to have “constructive knowledge” of the disability, and the student is entitled to the IDEA’s disciplinary protections. Therefore, the district cannot implement the proposed DAEP placement before conducting an MDR. In contrast, if the parent had requested the evaluation after the conduct and during the discipline process, which commonly occurs, the student is most likely not subject to the IDEA unless the district determines that (1) or (3) above applies.  For specific questions concerning MDRs, contact your school attorney.

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