Special Education Expulsion

Students who receive special education pursuant to an Individualized Education Plan ("IEP") and students who receive educational accommodations pursuant to a Section 504 plan are entitled to a manifestation hearing when the student will be removed from school for more than 10 days. The manifestation hearing is sometimes referred to as a 10-day removal hearing, a manifestation IEP or an emergency expulsion IEP to name a few. Either way, you and your child are entitled to a number of legal protections and rights. Since this hearing can be appealed, involve witnesses and the production of evidence, it is critical that you obtain the services of an attorney who can develop a record and ensure you and your child receive a fair manifestation hearing.

Essentially, a removal of more than 10 days constitutes a substantial change of placement triggering the right to a manifestation hearing. The Leigh Law Group attorneys have extensive experience in representing students at manifestation hearings and assisting students and parents in navigating these complex hearings.

MANIFESTATION HEARINGS ALLOW PARENTS TO OFFER EVIDENCE THAT:

1. The charge of misconduct is not supported by the facts.

2. The charge of the misconduct is directly resulting from the child's disability.

3. The charge of the misconduct is due to a failure of the school district to implement the IEP or Section 504 plan.

4. The charge of the misconduct does not require a removal from school, rather, the school district should consider additional supports, services and alternative placements.

Whenever a school district intends to change the placement of a disabled child, parents are entitled to notice of their rights.

The Leigh Law Group's special education attorneys e are routinely called upon to attend manifestation meetings and offer affordable legal rates to assist you in making sure you have a strong advocate present.

SECTION 504 REMOVALS:

The federal agency, the Office of Civil Rights ("OCR"), is responsible, in relevant part, for developing policy decisions about Section 504 laws and their implementing regulations.

OCR has determined that Section 504 students are entitled to a manifestation hearing and that the duty to conduct an a manifestation hearing may also be triggered by a series of suspensions that constitute a pattern of removals, which cumulatively total more than 10 school days.

The determination of whether a student's misconduct is related to his disability must be made by persons knowledgeable about the student and based upon evaluation data.

IEP Eligible Student Removals:

A manifestation hearing must be held within 10 school days of any decision to change the placement of a child with a disability because of a violation of the code of student conduct.

The manifestation determination is made by the school, the parent, and relevant members of the child's IEP Team. The manifestation team must review all relevant information in the student's file, including the child's IEP, any teacher observations, and any relevant information provided by the parents to determine-

(i) If the conduct in question was caused by, or had a direct and substantial relationship to, the child's disability; or

(ii) If the conduct in question was the direct result of the school's failure to implement the IEP.

If the manifestation team members make the determination that the student's conduct was due to a manifestation of the child's disability, the IEP Team must-

(1) Either-

(i) Conduct a functional behavioral assessment, unless the school district had conducted a functional behavioral assessment before the behavior that resulted in the change of placement occurred, and implement a behavioral intervention plan for the child; or

(ii) If a behavioral intervention plan already has been developed, review the behavioral intervention plan, and modify it, as necessary, to address the behavior; and

(2) Return the child to the placement from which the child was removed, unless the parent and the LEA agree to a change of placement as part of the modification of the behavioral intervention plan.

45 Day Removal From School For Certain Serious Misconduct

Pending the manifestation hearing, school personnel may remove a student to an interim alternative educational setting ("IAES") for not more than 45 school days without regard to whether the behavior is determined to be a manifestation of the child's disability, if the child-

(1) Carries a weapon to or possesses a weapon at school, on school premises, or to or at a school function under the jurisdiction of the school or school district;

(3) Knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, while at school, on school premises, or at a school function under the jurisdiction of the school or school district;

(3) Has inflicted serious bodily injury upon another person while at school, on school premises, or at a school function under the jurisdiction of school or school district.

Serious Implications of A Manifestation Hearing Ruling Against You

If, as a result of a manifestation, it is decided that the student's misconduct was not related to his disability, then the school district may choose to impose whatever long-term suspension or expulsion it would impose on a nondisabled student under the same circumstances, and the student may be disciplined just as any other student.

Challenging the Finding of a Manifestation Hearing

Parents may challenge the decision of the manifestation hearing through a special education due process hearing. In the case of a challenge to an adverse manifestation hearing decision, the process is to file a request for an expedited due process hearing.

The request for due process is also referred to as a complaint. That complaint must meet certain requirements and must include the facts of your case, the nature of the problem and the proposed resolution. A failure to comply with these requirements could result in your matter being dismissed. You can avoid this from happening if you obtain counsel, such as the Leigh Law Group attorneys, who have experience in representing families of children with disabilities in special education due process hearings including expedited due process hearings.

The timing for the expedited due process hearing is different than that of a traditional due process hearing. In the case where both a due process hearing and an expedited hearing are filed, two separate dates will be assigned by the California Office of Administrative Hearings ("OAH"). The OAH will assign a hearing officer to preside over your hearings. The expedited hearing must be set within 20 school days of a request for hearing and a final decision should be rendered within 10 school days after the completion of the hearing. There are other relevant timelines that our special education attorneys can assist you once you decide to retain the Leigh Law Group as your attorneys.

At the expedited due process hearing, an impartial hearing officer

will be asked re-examine whether the manifestation hearing team's decision to expel your child was correct when it decided:

(i) If the conduct in question was caused by, or had a direct and substantial relationship to, the child's disability; or

(ii) If the conduct in question was the direct result of the school's failure to implement the IEP.

Appeal to State Or Federal Court

Special education hearings for IEP eligible students including manifestation hearings that are adverse to you can be appealed to state or federal court. On appeal of an adverse special education administrative hearing decision, a state or federal court complaint is filed setting forth the facts upon which you are appealing the hearing officer's decision. There are 90 days to file this appeal.

It is critical therefore that in order to preserve your rights on appeal, that you set develop a strong factual record based on the evidence.

The Leigh Law Group's special education attorneys have published decisions in state and federal court of special education hearings including decisions related to manifestation hearings.