By: Emma Freeburg, ACDL Legal Intern (Summer 2021)*

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The previous blog post in this series introduced Manifestation Determination Reviews (MDRs) in school disciplinary actions. This blog post will explain what a MDR is, why it is important, and how best to prepare for it.

Generally, schools cannot discipline students with disabilities for behavior resulting from their disability, as this amounts to disability discrimination. To avoid unlawful discrimination, schools must hold a meeting, known as a MDR, to determine whether the conduct in question was a “manifestation” of the student’s disability. [1] The school is required to hold a MDR within 10 school days of the decision to impose disciplinary actions that would cause a change in the student’s placement. [2] For information on what constitutes a change in placement, take a look at the second blog post in this series.

 Who decides? A MDR is conducted by a team that includes a school representative, a parent, and any “relevant members” of the student’s IEP team. The school and the parent determine who is a relevant member of the team.

What happens at an MDR?  The team must answer the question: “Was the conduct a manifestation of the student’s disability?” To answer this question, the team must review all pertinent information about the student, including the student’s IEP or 504 plan, any teacher observations, and any information provided by the parent or guardian.

What standards apply to the MDR?

• The conduct was a manifestation of a child’s disability if:
  • The conduct was caused by or had a direct and substantial relationship to the student’s disability, and/or
  • The conduct was a direct result of the school’s failure to properly implement the student’s IEP or 504 plan.
• The conduct was not a manifestation of a child’s disability if:
  • The conduct was not caused by or did not have a direct and substantial relationship to the student’s disability, and
  • The conduct was not the direct result of the school’s failure to properly implement the student’s IEP or 504 plan.

How is the manifestation determination made? After reviewing all pertinent information about the student, the team is encouraged to work towards a general agreement. [3] If the team is unable to reach a general agreement, the school representative should make a final decision consistent with the information presented and applicable law. Parents do not have the right to overrule the decision made at the MDR, but they do have the right to challenge the decision by requesting a due process hearing. [4]

Why are MDRs important meetings?  If the team decides the conduct was a manifestation of the student’s disability, the student will not be disciplined and will be allowed to return to school. [5] If the team decides the conduct was not a manifestation of the child’s disability, the school can proceed with the disciplinary action. Discipline can include permanent removal from school through expulsion. In Arizona, an expulsion has serious consequences for a student’s future education because school districts and charter schools may lawfully refuse to admit any student who has been expelled in the past or is in the process of being expelled. [6] When students have an expulsion on their record, their educational options can be severely limited for the rest of their educational career. Therefore, a favorable finding at a MDR is key to preventing the long-term impacts of exclusionary discipline.

How to prepare for a MDR. It is crucial that parents and students go into the MDR well-prepared. Here are some tips for preparing for the MDR:

• Retain an attorney to accompany you to the meeting. If you cannot, try to consult with an attorney prior to the meeting in order to develop your arguments and evidence. Due the importance of the meeting, you should be as prepared as possible. In Arizona, parents may also be accompanied and represented by non-lawyer advocates at MDRs.
• Know the correct date and time of the meeting. If you need additional time to prepare, request a delay. To do so, you will have to sign a timeline waiver with the school since the school is required to hold the meeting within 10 school days of making the decision to impose disciplinary action.
• Be informed of the allegations against your child. To do so, you may request the discipline referral packet (or equivalent document) from the school, which will include witness reports and other important documents.
• Re-familiarize yourself with your child’s disability. To do so, review all of your child’s eligibility documents including their IEP/504 plan and school evaluations or evaluations from outside providers, state agencies, or teacher evaluations.
• If your child has a Functional Behavioral Assessment and/or Behavioral Intervention Plan, review those documents to determine whether the school has been following them.
• Research your child’s disability and what the behavioral manifestations of that disability are. You may find it helpful to copy down quotes from reputable sources, like the DSM-5 by the American Psychiatric Association, explaining the common behaviors associated with your child’s disability.
• Compile the documents that show a causal connection between your child’s disability and their actions.
• Talk to the healthcare professionals who are treating your child for their disability and ask them to attend the meeting or to write a letter on your child’s behalf. A good letter or information from an expert at the meeting can help persuade the team that your child’s behavior was caused by their disability.
• Ask individuals with knowledge of your child or of the alleged behavior to attend the MDR, such as witnesses, case managers, or family members.
• Prepare handouts to distribute to all of the team members at the meeting. The handout should include all pertinent information including documentation of your child’s disability, information on the accepted means of defining and diagnosing that disability, a list of the behavioral manifestations of that disability, the behavior as alleged in the discipline referral packet, and documentation that connects the alleged behavior with your child’s disability. [8]

What happens if the team finds your child’s behavior was NOT a manifestation of their disability but you disagree?

• If your child has an IEP, ensure the school continues to provide the special education services in your student’s IEP in an interim alternative educational setting throughout the duration of the disciplinary period. If the school fails to provide your child with services during this time, consider filing a state complaint with the Arizona Department of Education (ADE).
• Consider requesting an expedited due process hearing to contest the MDR decision.

Our next blog post will discuss the different types of informal discipline often experienced by students with disabilities, why such informal discipline may violate students’ legal rights, and what parents and students can do to address it.

[1] 34 C.F.R. § 300.530

[2] 34 C.F.R. § 300.530 (e)

[3] U.S. Department of Education, Office of Special Education and Rehabilitative Services, Letter to Richards (January 7, 2010), https://www2.ed.gov/policy/speced/guid/idea/letters/2010-1/richards010710iep1q2010.pdf

[4] 34 C.F.R. § 300.532

[5] 34 C.F.R. § 300.536

[6] 34 C.F.R. § 300.530 (f)(2)

[7] 34 C.F.R. § 300.530 (f)(1)

[8] This list was adapted for parents preparing for a Manifestation Determination Review using the same or similar suggestions for attorneys preparing for MDRs.  See Bill Brownley, Handling a Manifestation Determination Review (MDR): A “How To” for Attorneys, WRIGHTSLAW (December 10, 2018), https://www.wrightslaw.com/info/discipl.mdr.strategy.htm

*Emma Freeburg is a law student at the Sandra Day O’Connor College of Law at Arizona State University. Emma completed a legal internship with ACDL during the summer of 2021. This blog post has been reviewed by ACDL Legal Director Rose Daly-Rooney and ACDL Education Team Managing Attorney Amanda Glass.

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