Manifestation Determination under Section 504

The IDEA uses the term “manifestation determination” to mean the evaluation of the relationship between a student’s disability and act of misconduct that must be undertaken when a district proposes to change the student’s placement by imposing disciplinary removals. Under Section 504, a district is required to conduct a manifestation determination before suspension or expulsion of a student with a disability if the disciplinary action constitutes a significant change in placement.

The requirement to conduct a manifestation determination under Section 504 requires school districts to conduct an “evaluation” in accordance with 34 CFR §104.35(b) prior to any subsequent significant change in placement as noted in 34 CFR §104.35(a). If disciplinary actions constitute a significant change in placement, a school district must conduct a reevaluation of the student. In a disciplinary context, the reevaluation process is to include a determination of whether the misconduct is related to the student’s disability. This determination is made prior to implementing a disciplinary removal of more than 10 consecutive school days or a pattern of short-term removals that cumulate to more than 10 school days in a year that would constitute a significant change of placement.

The requirement that the Section 504 team complete a discipline review is found in 34 CFR §104.35(c). Per a memorandum to chief state school officers (“Questions and Answers on Disciplining Students with Disabilities,” OCR, April 1995), parents must be given an opportunity to provide input into the manifestation determination, as persons uniquely knowledgeable about their child’s disability. As with any placement meeting, parental participation in the manifestation determination meeting is a practical and effective means of obtaining the information 34 CFR §104.35(c) requires. Parents must be given notice of the results of the manifestation determination and of the available procedural safeguards. Persons knowledgeable about the student may include the persons involved in the evaluation process or individuals who have sufficient knowledge regarding the student, the meaning of the evaluation data, and the placement options (34 CFR §104.35(c)). This knowledgeable group should determine whether the conduct in question was caused by or had a direct and substantial relationship to the student’s disability.

An additional question to ask is, was the conduct in question the direct result of the school’s failure to implement the student’s Section 504 plan? If either of these standards is met, the group concludes that the behavior is a manifestation of the disability. In making this determination, the group takes into account the appropriateness of the student’s placement and whether the school’s failure to provide aids and services or strategies identified in the student’s Section 504 plan directly resulted in the behavior at issue.

If it is determined that the misbehavior is a manifestation of the disability, the student may not be expelled or suspended for more than 10 days (OSEP Memorandum 95-16). School officials should review the student’s current educational placement to determine appropriateness and whether behavioral intervention strategies should be implemented. Changes in the student’s placement may be appropriate subject to applicable procedural safeguards.

When the determination is that the misconduct is not caused by the disability, the district may suspend for more than 10 days or expel the student, consistent with the district’s Student Code of Conduct applicable to all students.

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