Pennsylvania
Special Education Hearing Officer
DECISION
ODR No. 16099-1415KE
Child’s Name: Z.B.
Date of Birth: [redacted] Dates of Hearing: 5/4/15
CLOSED HEARING
Parties to the Hearing: Parents
Parent[s]
School District Bristol Township 6401 Mill Creek Road Levittown, PA 19057
Representative:
Parent Attorney
Charles Weiner Esq. Cambria Corporate Center 501 Cambria Avenue Bensalem, PA 19020
School District Attorney Suzanne Pontious Esq. Seven Neshaminy Interplex Suite 200
Trevose, PA 19053
Date Record Closed: May 11, 2015
Date of Decision: May 18, 2015
Hearing Officer: Anne L. Carroll, Esq.
INTRODUCTION AND PROCEDURAL HISTORY
This case arose from a disciplinary incident at the District high school late in the school day on March 17, 2015. Student, who is IDEA eligible and has an IEP, was admittedly engaged in roughhousing with two friends in the hallway between classes and did not obey a teacher’s directive to stop the mock fighting conduct. Student’s physical reaction to the teacher’s restraining or admonishing touch resulted in an immediate suspension from school and consideration of additional discipline, including expulsion.
After a manifestation determination review by Student’s IEP team, and the team’s conclusion that the conduct in question was not a manifestation of Student’s disability, the Special Education Director referred Student to the School Board for an expulsion hearing, which has not been held pending the outcome of this case. Student returned to the educational placement designated in Student’s then current IEP and NOREP soon after the manifestation determination review, and has remained there without further incident.
Parents challenged the manifestation determination via a due process complaint, followed by a hearing on May 4, 2015. Because the evidentiary record disclosed significant flaws in the manifestation determination process that strongly suggests the outcome was predetermined, or at least that the District’s procedures were insufficiently thorough, the District’s conclusion must be overturned. There are, however, facts relating to the incident and to Student’s condition that were not and could not be fully explored via the due process hearing, and, therefore, there is insufficient evidence to conclude that the District’s manifestation determination was definitely incorrect. Accordingly, the District is directed to repeat the manifestation determination review before determining whether Student is subject to a disciplinary change of placement to the same extent as a non-disabled District student.
ISSUES
1. Did the School District’s manifestation determination review properly conclude that Student’s conduct during the incident in question was not a manifestation of Student’s disability, in that:
- The School District appropriately considered all relevant facts concerning the incident;
There were no procedural defects in the manifestation determination review process
that interfered with the IEP team’s ability to reach a proper and accurate decision, including
- The timing of the manifestation determination review;
- Predetermination of the outcome before the manifestation determination review occurred;There was no defect in implementation of Student’s IEP that had any bearing on Student’s conduct during the incident or on the outcome of the manifestation determination review?
2. Is the School District permitted to proceed with a hearing before the School Board to consider additional discipline, including possible expulsion of Student?
3. Is the School District required to provide compensatory education to Student due to suspension from school in excess of the amount of time permitted before the exclusion from school is considered a disciplinary change of placement for an IDEA eligible student?
4. If compensatory education is due, in what amount and for what period should the District be required to provide it?
Z-B-Bristol-Township-ODRNo-16099-1415KE