Disciplining students with disabilities has become more complex as a result of specific statutory requirements such as the manifestation determination provisions of the Individuals with Disabilities Education Act (IDEA) of 1997 (Zurkowski, Kelly, & Griswold, 1998). When expulsion, long-term suspension, or change of placement is considered for a student with disabilities, as a result of a disciplinary event, a manifestation determination meeting must be held (34 CFR §300.523). A manifestation determination meeting is held to determine if the behavior in question is a manifestation of the student’s disability. At the manifestation determination meeting, the participants must consider whether: (a) the local education agency (LEA) complied with the conditions stated in the individualized education plan (IEP) and placement, (b) the child’s disability impaired the child’s understanding of the consequences of the behavior, and (c) the child’s disability impaired the child’s control of the behavior (34 CFR §300.523 (b) (2); Bartlett, Weisenstein, & Etschgeidt, 2002) (see Figure 1).
The Individuals with Disabilities Education Act (IDEA) contains specific procedures that school districts must follow when a disciplinary situation that involves a child with an IEP would result in the removal of that child from the school. Zilz (2003), however, found that administrators in charge of discipline in Central Pennsylvania did not identify legally sound procedures when faced with a removal situation involving a student with an IEP. In addition, 80% of the high school administrators stated that they would consult with a special education expert either before or immediately after proceedings to ensure compliance had been met.
The purpose of the study was to replicate the Zilz (2003) investigation by interviewing related special education experts. In addition, the results were compared to the results found by Zilz in order to clearly identify manifestation determination procedures used by administrators in Central Pennsylvania. This comparison gives insight into what areas of training are required in order to facilitate school district professionals following proper due process in disciplinary situations involving a child with an IEP. The following narrative will review: (a) litigation and legislation leading to current regulations, (b) IDELR cases, (c) supporting research, (d) the purpose of this study, (e) research questions, (f) hypothesis, and (g) significance of this study
The Fourteenth Amendment states, “…nor shall any state deprive any person of life, liberty or property without due process of law; nor deny to any person within it’s jurisdiction the equal protection of the law”. This has been interpreted, as per Brown (1954), that the Fourteenth Amendment requires the government, state or local, to provide every citizen with equal access to government-funded organizations. Therefore, neither state nor local governments can selectively deny educational services to students with disabilities. Substantively, this means a school cannot take away any aspect of education from a student with a disability without due process.
Over the past 30 years, it has been legally established that children with disabilities have the right to receive a free and appropriate public education (FAPE) (Board of Education of the Hedrick Hudson School District v. Rowley, 1982; IDELR, 20 U.S.C., 1997). Therefore, any change of educational placement or program infringes on the right to that FAPE unless due process is followed (as per the Fifth Amendment). The current regulations require one to presume that a behavior is due to the child’s disability unless the school has followed all procedures and the team has proven that the behavior is not due to the disability (34 CFR §300.523). In essence, if a student with a disability is separated from his home school or current local education agency (LEA) and the behavior for which he is being removed is a manifestation of his disability, then the child is being segregated for having a disability.
When educators encounter behaviors that could precipitate a manifestation determination meeting, they may choose to simply avoid the process by implementing discipline that does not result in removal of the child from the current placement. However, if they choose to remove the child from the current placement, hearing officers and courts clearly assert that they must strictly adhere to the procedural requirements of the law (Zilz, 2002). In fact, courts and hearing officers need not even consider judgment errors if procedural errors have occurred, and the procedural errors are prejudicial to the student (34 CFR §300.523(c)). Thus responsible administrators must have a clear knowledge of and resources to follow the appropriate procedures or run the risk of unfavorable court decisions.
A review of the Individuals with Disabilities Educational law Reporter (IDELR) indicated that during the past nine years, the number of cases that were reported by IDELR regarding manifestation determination issues increased from 1995 (3) to 2002 (22). The number of cases reported for 2003 could not be counted because they had not all been reported at the time the data for this study was collected. Overall, the number of cases reported from 1995-2003 by IDELR regarding manifestation determination issues (98) is not a large number. However, the number is increasing. This indicates that the school districts are not resolving these cases at the school level, and that manifestation determination should remain a topic of interest to those at the administrative and practitioner levels.
Due process cases dealing with manifestation determination issues may be decided on the basis of alleged procedural flaws or judgment flaws. Procedural flaws pertain to adherence to the procedures required to properly implement the regulations, such as appropriately involving the parents, following the steps for conducting the manifestation determination meeting, developing and implementing a proper behavior plan and developing and implementing an appropriate IEP. Judgment flaws pertain to balancing and judging the evidence about the connection between the behavior and the student’s disability (34 CFR §300.525).
A review of 54 cases published in IDELR, involving manifestation determination, showed that most due process decisions were made on the basis of whether procedures were followed rather than judgments about whether the behavior was actually due to the disability (Zilz, 2002). At this time, IDELR is the most comprehensive source available for such a review.
Only two studies have investigated manifestation determination procedures, Davis (1999) and Zilz (2003). Davis compared regular schools and charter schools on the basis of discipline policies in place and how they matched the current regulations. In that study, Davis determined that none of the 40 schools met all 67 policies she identified as being necessary to meet the requirements of the disciplinary regulations. Davis did not examine whether schools complied with the regulations, only whether they had written policies regarding procedures.
Zilz (2003) identified 12 procedures legally required when removing a child with a disability. These 12 procedures were based on: (a) a review of 54 cases reported in IDELR, (b) procedures identified by The Pennsylvania Training and Technical Assistance Network (PATTAN), (c) Katsiyannis and Maag (2001), and (d) Turnbull and Turnbull (2000). Zilz used the Pennsylvania Department of Education web sight to identify all the public high schools in Central Pennsylvania. He then randomly selected 20% of them to participate in his study. In this way, 40 randomly selected administrators in charge of discipline within Central Pennsylvania high schools were selected. Those 40 participants were further randomly divided into four groups based on the independent variables of student label and nature of the offense. Each administrator was presented with a scenario that depicted a child who was labeled either with attention deficit hyperactivity disorder (ADHD) or mental retardation (MR) who had committed either a drug or weapons offense and was asked to describe the procedure that would be followed. The responses of the administrators were compared to the 12 procedures previously identified.
Results were as follows: (a) none of the experimental groups differed significantly from each other in regard to the number of procedures identified by the administrators, (b) none of the administrators identified all 12 of the identified procedures, and (c) 80 % of the high school administrators stated that they would consult with a special education expert either before or immediately after proceeding to ensure compliance had been met.
The overall results of Davis (1999) and Zilz (2003) showed that, high school administrators did not identify the legally required procedures and written policies did not meet legal standards. It is inaccurate to make this statement, however, without acknowledging that input from the resource identified by 80 % of the administrators in the Zilz study, special education experts, were not factored into the results. In order to account for the essential input of special education experts, it was necessary to conduct a comparison study that considered the effect of combining the input of administrators and special education experts on the number of procedures identified. Therefore, a replication study based on Zilz was conducted.
Zilz (2003) found that no administrator interviewed identified all 12 of the required procedures. The results of that study indicated that further research needed to be conducted to determine if a discrepancy does exist between the procedures that are followed and those procedures required by IDEA.
This investigation replicated the Zilz (2003) investigation by interviewing related special education experts. In addition, the results were compared to the results found by Zilz in order to clearly identify manifestation determination procedures used by administrators in Central Pennsylvania.
The results of this study answered the following questions: (a) Which of the 12 procedures identified by Zilz (2003) do special education experts identify when given a removal situation involving a student with an IEP? (b) Do special education experts identify more procedures than high school administrators in charge of discipline? (c) What procedures do high school administrators and special education experts identify when their results are paired? and (d) What procedures are not identified when the results are paired (indicating a need for training in these procedures)?
Based on the results of the Zilz (2003) study, it was hypothesized that since it is the job of special education experts to know about legal procedures: (a) they would identify all 12 required procedures, (b) they would identify more procedures than did high school administrators, and (c) when their results were paired with the results of regular education administrators all 12 procedures would be identified.
Due process exists to protect children’s rights. If neither administrators nor special education experts are aware of the procedures that are required in a disciplinary situation involving a child with an IEP, they will not be able to provide due process for that child. If a child does not receive due process, the school is in violation of both IDEA (34 CFR § 300.523) and the Fourteenth Amendment of the Constitution. If a school changes a child’s placement, as defined by IDEA (34 CFR § 300.519), without following the procedures that constitute due process for that child, then that school district has removed or segregated that student due to his disability. Initial special education legislation such as PARC v. Commonwealth of Pennsylvania (1971) and Mills v. Board of Education Washington, D.C. sprang from desegregation rulings. If the proper procedures are not being followed, then children with disabilities are being segregated without due process in breach of both IDEA and our Constitution.
Literature Review
The following narrative presents a review of the literature supporting the selection of pertinent variables and methods used in this study including: (a) issues surrounding manifestation determination, (b) litigation and legislation leading to current regulations (c) review of IDELR cases (Zilz, 2002), (d) identification of the 12 manifestation determination procedural components, (e) disciplinary removal decisions made by high school administrators (Zilz, 2003), (f) analog study, (g) situational interview and Think Aloud Protocol, and (h) why the variables ADHD v MR and weapons v drug violation were selected (Zilz 2003).
The Amendments to IDEA (1997) and their accompanying regulations incorporate the importance of the manifestation determination meeting and the crucial role it plays when exclusionary discipline practices are applied to students with disabilities (34 CFR §300.523). School administrators, special educators, hearing officers, parents, students, and the courts, however, continue to have concerns about how to provide discipline that allows for a child’s individual needs, while maintaining an expectation of appropriate social behavior (Turnbull & Turnbull, 2000).
Researchers question whether manifestation determination meetings can result in outcomes that are consistent. Without a consistent method of determining if the behavior is a manifestation, it is impossible to administer any associated discipline in a consistent manner (Hartwig & Ruesch, 2000; Katsiyannis & Maag, 2001; Knoster, 2000; Yell & Katsiyannis, 2000). In addition, some authors claim that even if consistent manifestation determination outcomes are obtained, an inherent lack of equity exists between how students with disabilities and students without disabilities are disciplined (Buck, Polloway, Kirkpatrick, Patton, and Fad 2000; Drasgow, Yell, Bradley, and Shriner, 1999).
Experts are looking for a consistent method of determining if a behavior is due to a child’s disability. However, some experts who present the theory that there is inconsistency in manifestation determination decisions further attest that the lack of consistency occurs because professionals in the field have neither the skills nor knowledge bases to consistently and reliably make a manifestation determination decision (Buck, et al., 2000; Drasgow, et al., 1999).
The literature addressing administrative training supports the position that administrators receive an insufficient amount of training in special education. A survey study of university faculty, regarding the importance of training in 30 areas relating to administration and the level their program prepared them in these areas was conducted. Administrators ranked; “manage a school promoting fair and humane discipline and control techniques” as second most important and how well their preparatory program prepared them in the area of discipline was tied for third. However, they ranked “to manage special programs within the school” (e.g. special education) as twenty-seventh and how well their program prepared them in the area of special education as twenty-forth. This creates a paradox when discipline involving special needs students is evaluated (Sirotnik & Kimball, 1994; 1996).
There are two parties who have responsibility in the issue of under-prepared administrators, the administrators and the preparatory program. It is the administrator’s responsibility to keep current with all new developments (Sirotnik & Kimball, 1996). The council for Exceptional Children (CEC) publishes standards on their web sight that place the responsibility on the administrator to stay current in all special education matters. This, however, does not relieve the administrative preparatory programs of their responsibility to provide an education that aligns their coursework with the actual needs of practicing administrators (Marshall & McCarthy, 2002). Administrators typically receive one course in special education, and less than one class period is spent on the issue of discipline and special needs students. In most programs, there is little or no difference in the administrative training of special education and regular education administrators regarding legal issues in special education (Sirotnik & Kimball, 1994; K. Hippel, personal communication, December 14, 2003).
Even if training is improved in the area of discipline and special needs students, much of the manifestation determination literature claims that more specific guidelines are needed to accompany the regulations, such as precise methods for creating behavioral intervention plans and the core decision-making process of whether a behavior is linked to a disability. Authors of this literature would prefer clear definitions of what behaviors are linked to which disabilities to enable more systematic and consistent decisions to be made (King, 1996; Tilly, Knoster, Kovaleski, Bambara, Dunlap, & Kincaid, 1998; Yell, 1989). However, if these guidelines create too strong of a parallel between behaviors and disabilities, manifestation determination teams may not be able to acknowledge the individual differences of children who are labeled with the same category of disability.
The language used in the IDEA regulations is such that the behavior must be presumed to be related to the disability unless the manifestation determination team follows all procedures and determines that it is not, see figure 1 (IDEA, 1997). Because of this assumption, behavioral expectations for a child with a disability may be modified in recognition of the child’s disability. According to some experts, this conflicts with the concept of a reasonable expectation of safe and socially acceptable behavior. According to Binder (1996) and King (1996), if the burden of behavioral responsibility is reduced for children because they have a disability, an inferior standard is set compared to the one we expect for children without disabilities.
The Constitutional bases for educational legislation regarding children with disabilities is found in the First, Fifth, and Fourteenth Amendments. The Amendments guarantee each citizen’s right to redress grievances, federal right to due process, and right to equal protection under the law respectively. Two of the foundational cases that integrated students with special needs into public schools, PARC v. Commonwealth of Pennsylvania (1971), and Mills v. Board of Education Washington, D.C., (1972), were founded on these Amendments and the precedent set by Brown v. The Board of Education (1954).
A public school system is a state government agency, therefore, its services must be provided on an equal basis, not selectively distributed. The lawyers for the plaintiffs in the Brown (1954) case argued that segregated public schools were not “equal,” could not be made “equal,” and, hence, violated the concept of “equal” protection under the law. The Fourteenth Amendment states, “…nor shall any state deprive any person of life, liberty or property without due process of law; nor deny to any person within it’s jurisdiction the equal protection of the law”. This has been interpreted, as per Brown (1954), that the Fourteenth Amendment requires the government, state or local, to provide every citizen with the equal benefit of government-funded organizations, such as school systems. Therefore, neither state nor local governments can selectively deny educational services to students based on a minority status. Substantively, this means a school cannot take away any aspect of education from a student with a disability without due process.
In the past 30 years, the issue of disciplinary removal of children who have special needs has been a subject of litigation (see Table 1). In 1997, those court rulings were translated into law when Congress enacted P.L. 105-17 (Individuals with Disabilities Education Act [IDEA] Amendments of 1997) and the accompanying regulations in 1999 (34 C.F.R. § 300-303), which, among other things, specified that: (a) an LEA can not violate the rights of a student with a disability by terminating his educational services (34 C.F.R. § 300.121[d]) and, (b) the manifestation standard (was there a casual relationship between the student’s disability and the disruptive behavior?) must be applied when an LEA initiates disciplinary action that may ultimately change a student’s educational placement (IDEA Regulations, 34 C.F.R. § 300.523).
When a student with a disability exhibits behaviors that would normally result in his exclusion from the local school setting for more that 10 days within a given school year, the LEA is mandated to conduct a manifestation determination review to decide whether the offending behavior resulted from the student’s disability. To arrive at a decision, members of the review team (parent[s], regular education teacher [if the child receives any services from a regular education teacher], special education teacher, representative of the public agency, an individual who can interpret test results, and the child [if appropriate]) must affirm or deny three statements:
(i) In relation to the behavior subject to disciplinary action, the child’s IEP and placement were appropriate and the special education services, supplemental aids and services, and behavior intervention strategies were provided consistent with the child’s IEP and placement; (ii) The child’s disability did not impair the ability of the child to understand the impact and consequences of the behavior subject to disciplinary action; (iii) The child’s disability did not impair the ability of the child to control the behavior subject to disciplinary action. (IDEA, 34 C.F.R. § 300.523 [2]).
According to LRP publications, the company that publishes the Individuals with Disabilities Educational Law Reporter (IDELR), IDELR is “an up-to-date and comprehensive loose leaf reporting service designed to meet the legal research needs of the special education community, including attorneys, advocates, administrators, teachers, and service providers.” All emails from LRP publications indicated that due to confidentiality they would not answer any questions regarding their method of data collection, or how cases are selected for publication in IDELR. Based on a telephone call, some cases are reported to LRP by outside sources and LRP staff researches others. In addition, no total numbers, state numbers, nor overall database of cases is maintained by LRP. It is therefore impossible to determine, with this information, the actual number of cases that revolve around the topic of manifestation determination using this source. However, at this time, IDELR is the most comprehensive source available for such a review.
A hand search of volumes 22 (1995) through 34 (2000) of the Individuals with Disabilities Education Law Reporter (IDELR) was conducted to identify cases that dealt with the issue of manifestation determination and were decided after 1994 (see Table 2). This time frame was chosen to encompass the rulings preceding the 1997 IDEA enactment and those occurring after the 1999 regulations were implemented. Between 1994 and 2000, 2,967 cases were published in IDELR. The manifestation determination cases constituted only 1.8 % of the total published cases in IDELR between 1995 and 2000.
Volumes 35 – 39 (2000 to 2003) of IDELR were examined in order to consider current cases (see Table 3). One thousand four hundred six cases were reviewed by IDELR during this time. Forty-four cases involved manifestation determination issues, representing 3 % of the cases reported, a clearly growing number from the 1.8 % between 1994 and 2000. For the children involved, case decisions determined the extent to which they were educated in the public schools. In these cases, a legal official reviewed the school’s determination as to whether a child’s school misbehavior was due to that child’s disability. In nearly all of the cases, decisions were based solely on whether school districts followed all the proper procedures.
Manifestation determination cases represent only 2.2% (98 out of 4,427) of the total cases reported in IDELR between 1995 and 2003. Based on these numbers, it can be argued that manifestation determination may not be the most reported problem, however, it is a growing problem, and all 98 of these cases determined the educational fate of a child. In addition, since the majority of the manifestation determination cases were decided based on whether or not the school district followed proper procedure, it is imperative that administrators know and enact all the necessary procedures. Based on the results of the cases reviewed, it can be hypothesized that pertinent individuals responsible for the manifestation determination process, in these cases (e.g., school administrators), may not have been knowledgeable about the required procedures.
Independent Variables Selected for Zilz (2003)
Three trends were noted in the analysis of IDELR cases involving manifestation determinations between 1995-2000 cases. The first trend involved the label of the children involved in these cases. The most common disability label was other health impaired (40%), specifically attention deficit disorder/attention deficit hyperactivity disorder (ADD/ADHD). In contrast, only one case involved a student with mental retardation (MR). It is noteworthy that, since ADD/ADHD falls under other health impaired (34 CFR § 300.7(9)), it is a medically diagnosed disorder whereas educational professionals (34 CFR § 300.7(6)) determine MR, for the purpose of special education. Some experts have indicated that manifestation determination decisions can only be accurately made when they concern a medically diagnosed disorder; in all other cases, decisions would be based on subjective information (Katsiyannis & Maag, 2001).
All of the cases reported in IDELR involving manifestation determination decisions were initiated by the parent of the child involved seeking an alternate outcome than what the manifestation determination team decided at the district level. The second trend found by Zilz (2002) was that, in the cases involving manifestation determinations reported by IDELR from 1995 to 1997, districts prevailed more often in manifestation determination due process cases than parents (15 to 5). However, since 1998, after the enactment of IDEA 1997, the trend reversed; parents won more cases than districts (24 to 10). The presence of weapons or threat of weapons, however, seemed to impact these decisions.
The third trend was the influence of weapons or the threat of weapons on the final decisions of cases involving manifestation determinations. Of the 12 cases from 1995 to 2000 involving weapons or threat of weapons, 9 were decided for the district, only 3 were decided for the parents. Of the three decided for the parents, one occured before the 1997 regulations (1995) and the other two decisions were based on the fact that a manifestation determination meeting was never held. Between 1998 and 2000 only 10 cases were ruled in favor of the district and 8 of these involved weapons or threat of weapons (Zilz, 2002).
Based on the analysis of the 54 manifestation cases, the regulations set by IDEA 97, the regulations identified by The Pennsylvania Training and Technical Assistance Network (PATTAN), Katsiyannis and Maag (2001), and Turnbull and Turnbull (2000), twelve procedures for legally sound manifestation determinations were identified by Zilz (2003). Three of the four sources identified all 12 procedures and one (Katsiyannis & Maag) identified 8 out of the 12 procedures. The 12 procedures can be divided into 4 categories: (a) requirements for parent involvement, (b) requirements for conducting the meeting, (c) requirements for a proper behavior plan, and (d) requirements for a proper IEP.
Requirements for parent involvement. Three identified procedures require the involvement of parents (1,2, and 3):
1. Contact Parents the day the decision to remove is made (34 CFR§ 300.523 (a) (1)).
2. Provide procedural safeguards to parents the day the decision to remove is made (34 CFR § 300.523 (a) (1)).
3. Invite parents to the manifestation determination meeting (34 CFR § 300.523 (b)).
4. Manifestation meeting occurs before the 10th day of removal assigned (34 CFR § 300.520 (b) (1)).
5. Schedule a manifestation determination meeting ASAP (no later than 10 school days, and before the child has been suspended 10 total days) (34 CFR § 300.523 (a) (2)).
6. Invite all professional members of IEP team (34 CFR § 300.523 (b)).
7. Conduct functional behavioral assessment within 10 days of before the manifestation determination meeting (34 CFR § 300.520 (a) (1) (i)).
8. Examine behavior plan and assure that it addresses the behavior (34 CFR § 300.520 (c) (1)).
9. Make sure the behavior plan was followed (34 CFR § 300.520 (b) (1) (ii)).
Requirements for a proper IEP. Three identified procedures describe
requirements for a proper IEP (10,11, and 12):
10. Check to see if the child’s IEP is current (34 CFR § 300.523 (c) (2) (i)).
11. Check to see if IEP is written to address the child’s needs regarding the situation (34 CFR § 300.523 (c) (2) (i)).
12. Make sure the IEP is being implemented as written (34 CFR § 300.523 (c) (2) (i)).
1. Call the police (34 CFR § 300.529).
2. Place child in an interim alternative educational setting (IAES) for 45 days (34 CFR § 300.520 (2)).
3. If viewed as a danger to self or others, revise IEP and place child in an appropriate setting to meet that child’s needs (34 CFR § 300.521; 34 CFR § 300.522).
4. If parents contest school decision for IAES placement, request Hearing officer to require a 45-day IAES placement (34 CFR § 300.521).
Through the use of an interim alternative educational setting (IAES) the school can avoid stay put provisions in order to maintain a safe school environment. The parents may contest the school’s decision for unilateral removal, but they can not contest a hearing officer’s decision for an IAES until they reach the appeals level of due process.
Zilz (2003) attempted to answer two questions: (a) Does the label of the child or the nature of the offense influence the administrator’s decisions? and (b) How many of the 12 procedures, Zilz identified as being legally crucial, will administrators in charge of discipline within the high school say they would implement? In order to accomplish this, administrators’ responses to an analog case were recorded and analyzed. An analog case is a scenario specifically designed to parallel a realistic scenario in order to control for extraneous variables that could influence a study (Turner & Watson, 2002). The cases were designed to determine what procedures would be followed, given a disciplinary removal situation involving a potential manifestation determination decision.
A sampling of 40 high school administrators in charge of discipline within their schools were divided into four groups; each group was given a scenario that varied on only two variables, the child’s label (mental retardation v. attention deficit hyperactivity disorder) and the nature of the offense (drugs v. weapons). These variables as well as other variables throughout the study, such as the age, gender, etc. of the student were chosen based on the results of an analysis of 54 cases reported by IDELR between the years 1995 and 2000 (Zilz 2002). Respondents were randomly assigned to one of four groups and asked to examine the appropriate analog case and describe what procedures they would follow to resolve the situation. Both specific items identified for study and qualitative comments were solicited and recorded for analysis. Responses of each group were compared to determine if the label or nature of the offense influenced the procedures or decisions made by administrators. No significant difference was found among the four groups in regard to the number of procedures identified (see tables 2 & 3). Therefore, it may not be productive to further explore the influence of these variables on the decision making process.
Based on a visual review of the responses, not one of the administrators interviewed complied with all 12 procedures identified as legally required by Zilz (2003) (see table 4). In addition, seven procedures were identified by less than half of the participants. The four least identified items were: (a) providing procedural safeguards to parents the day of the event (5 out of 40), (b) making sure the IEP was implemented as written (8 out of 40), (c) conducting a functional behavioral assessment (FBA) (9 out of 40), and (d) Making sure the behavior plan was followed (11 out of 40). It is stated in the regulations that a behavior must be ruled to be due to the child’s disability unless the school has followed all procedures and the team has proven that the behavior is not due to the disability (34 CFR § 300.523). It is clear that there is a gap between what is expected by the courts and what the administrators identified as the procedures they would follow. There is, therefore, a need to further investigate the district’s ability to identify legally required procedures when presented with a disciplinary removal situation involving a student with an IEP.
Several authors have expressed concern regarding the current methods being used to decide manifestation determination issues (Hartwig & Ruesh, 2000; Katsiyannis & Maag, 2001; Knoster, 2000). The findings of Zilz (2003) support the inconsistency argument. It must also be assumed that if the procedures described by the administrators were the only ones followed, the district would not be successful in court and disciplinary removal would not be upheld. These findings support the concerns stated by Buck, et al. (2000) and Drasgow, et al., (1999).
Finally, Zilz (2003) reported that 80% of the participants stated that they would need the assistance of a special education expert when deciding a manifestation determination issue. Some referred to this person as the director of special education, special education supervisor, or the intermediate unit supervisor for special education. The impact a special education expert has on manifestation determination due process had not been explored. Therefore, based on the apparent reliance of regular education administrators on special education experts, and in order to get the full picture of what procedures would actually be followed, further research needed to be conducted in order to explore the special education administrator’s influence on the proceedings (Zilz 2003).
Zilz (2003) first considered what method to use in order to investigate his research questions. He examined procedures such as videotaping observations of the actual proceedings (Ysseldyke, Algozzine, & Mitchell, 1982) and examining school records (Billingsley, 1984; Schenck, 1981; Weisenfeld, 1987). However, an analog method, common in both medical and social science research, was selected for this project (Gentner & Landers, 1985; Gick & Holyoak, 1980; Higuchi & Donald, 2002; Holland, Holyoak, Nisbett, & Thagard, 1986; Kolodner, 1997; Tanner, Padrick, Westful, & Putzier, 1987).
An analog study is based on creating a scenario that has strong parallels to a situation that the investigator wishes to study. It has four steps: (a) select a valid source scenario, (b) map the source scenario to the analog scenario, (c) use stimuli that produce the desired set of responses, (d) analyze the data collected to learn from the experience (Brown, Kane, & Echols, 1986; Gentner, 1983; Gentner & Holyoak, 1997; Holyoak & Thagard, 1997, 1989; Ross, 1987).
Strengths of analog. An analog study allows the researcher to investigate the topic without the confounding variables that would be present in actual cases. The investigator can create a scenario that directly reflects the desired situation and avoids potential biases. In addition, it avoids the complication of gaining permission to access actual cases (Turner & Watson, 2002).
Weaknesses of analog. In order for an analog study to be effective, the subject of the study must be able to examine the analog and relate that information to a situation that the subject is familiar with, called the source scenario. There is an assumption that subjects will relate the analog to the source scenario. An analog study relies on a certain level of expertise in the subject. Since subjects are limited to a finite set of observed cases to draw parallels from, novices in the content area of the study may have difficulty bridging the gap between the analog and the source scenario (Hummel & Holyoak, 2003; Simmons & Lunetta, 1993; Holyoak & Thagard, 1997).
In a situational interview, the participants are asked what they would do in a given situation; their responses are then compared with a predetermined response or set of responses that are desired (Campion, Campion, & Hudson, 1994; Janz, 1982; Latham, Saari, Pursell, & Campion, 1980). In order to ensure consistency between interviews and to maximize the validity of the results, a script should be followed (Campion, et al., 1994; Janz, 1982; Latham, et al., 1980). Think Aloud Protocol is a technique where participants verbalize the problem solving procedure they are using to allow the researcher to record the results of the cognitive process at work (Wedman, Wedman, & Folger, 1996)
The absence of published research regarding professional knowledge of manifestation determination procedures leaves much room for exploration of what may or may not influence this decision-making process. In order to initiate this exploration, two pairs of independent variables were selected by Zilz (2003), an ADHD label compared to an MR label and a weapons violation compared to a drug violation.
ADD/ADHD was selected based on the large percent of cases reviewed by Zilz (2002) that involved this condition (40%). MR was selected as a contrast to ADD/ADHD due to the theory proposed by Katsiyannis and Maag (2001) that only medically diagnosed disorders can be consistently evaluated in regard to manifestation determination. A weapons violation was selected due to the disproportionate number of cases reported in IDELR in which the district prevailed when weapons violations occurred as compared to all other violations. Weapons and drug violations are treated as equivalent offenses in regard to the procedures that are to be followed and the options the district has in reaction to the offense (34 CFR § 300.520(2)). Therefore, this study provided a first step in investigating how selected student characteristics and selected offenses influence manifestation decision-making. However, since no significant difference was found among any of the four groups investigated by Zilz (2003) regarding the procedures that were identified, and due to the low overall number of legally required procedures identified by administrators investigated, further research focused on the identification of required procedures rather than the variables that may influence whether or not an administrator chooses to implement the required procedures.
Method
A descriptive research design was utilized. Thirty-six special education experts were paired with 32 randomly selected high school administrators in charge of discipline, sampled from the 40 participants found in Zilz (2003). In Zilz the high school administrators were randomly divided into four groups. Each administrator was given one of four scenarios that were identical in all aspects to the other scenarios except for two points: (a) Group one, the student was identified as having MR and had committed a drug violation; (b) Group two, the student was identified as having MR and had committed a weapons violation; (c) Group three, the student was identified as having ADHD and had committed a drug violation; (d) Group four, the student was identified as having ADHD and had committed a weapons violation. The scenario received by the special education expert was the same as the scenario reviewed by the high school administrator.
Participants included 36 Pennsylvania special education experts. Each expert was recruited from the 40 special education experts associated with the schools identified in Zilz (2003). All participants were contacted within three months of each other to limit potential contamination of the procedure by other variables.
Following a phone contact, the 36 special education experts were each interviewed in their work place. In this way, participants were in the environment in which the source scenario would naturally take place. That increased the likelihood that the participant would relate the analog to the source scenario (Latham, et al., 1980; Reimers, Wacker, Cooper, & DeRaad, 1992).
Materials developed or used during the course of this study consisted of the following: (a) consent form required for investigation of human subjects (see appendix A); (b) script for investigator to follow so that there was consistency among interviews (see appendix B); (c) analog materials including a discipline file consisting of a cover sheet, two after school detention notices, motivational resource center notice (in-school suspension), four referral forms, and three out of school suspension forms (see appendix C); (d) a special education file consisting of a permission to evaluate form, invitation to participate in the IEP form, evaluation report form, notice of recommended educational placement form, IEP form, behavior intervention plan form, and the final discipline referral form (see appendix D); (e) demographic information sheet (see appendix E); and (f) the tape recording device.
Procedures
The following procedures were used for: (a) participant selection, (b) material development, (c) interviewing the participant, (d) recording data, and (e) analysis of data.
A telephone contact was made to each selected school in order to identify the special education expert who served that school and to set up an interview with that person. Each of the 40 schools was contacted in this manner. Thirty-six of the 40 possible participants agreed to take part in this project, resulting in a 90% participation rate.
Zilz (2003) found no significant difference among any of the four groups in any category. However, in order to maintain the integrity of the study and avoid any biases that may be the result of a particular independent variable, the groups were made equal for this study. In order to facilitate this, one participant was removed from two of the four groups so that each group contained exactly nine participants. Scores were taken for all subjects, and the subject with the adherence to regulations score closest to the mean for that group was removed from each of the two groups that were over represented. This was done to avoid biasing the sample in regard to any of the research questions, as a random selection may have removed the subject that identified the most or least items. Removing the subject with the mean score should not overly influence any of the results.
The materials were identical to the materials used by Zilz (2003) with the exception of minor changes in the script to accommodate the change of subjects. In order to create these materials, Zilz (2003) did three things: (a) selected a valid source scenario, (b) mapped the source scenario to the analog scenario (Holyoak & Thagard, 1997), and (c) piloted the study.
Based on the independent variables, disability category and the nature of the offense, and Holyoak and Thagard (1997), the source scenario was defined as a typical child with a disability and an IEP. The child’s records were constructed to include characteristics that could be attributed to either ADD/ADHD or to MR. All of the child’s records were what administrators typically see for a child with an IEP.
Based on feedback from the further piloting of the script incorporating six Doctoral students in administration, school psychology and special education programs, specific prompts were included to increase the volume of information gathered. All of the prompts were selected to encourage the participant to give information without leading him/her to specific responses for example, “Can you tell me more?”, “Go on”, “After you (repeat the last thing the administrator said) then what would you do?”, “In your experience, what would happen next?”, etc.
Pilot. A pilot interview was conducted with six doctoral students in the areas of special education, educational administration, and school psychology. An average of 5 minutes was needed for participants to examine the discipline file, and 10 minutes was needed for the special education data. The entire data collection process, from the request to record to the request for suggestions took from 15 to 40 minutes per participant.
Procedure. The participants were given the consent form to review and sign. If the participant had any questions regarding the consent form, they were answered at this time. Data collection procedures began immediately after the consent was acquired.
The consent form signed by the participants stated that the interview would be recorded. However, they were each asked again if they would allow the interview to be recorded to insure clarity on this matter. The recordings were made so that no data was lost through manual note taking (Bereiter & Scardamalia, 1987; Hasazi, Johnson, Schattman, & Liggett, 1994; Turnbull & Hughes, 1987). All participants agreed to have the interview recorded.
Participants were given the disciplinary file. After they indicated they had completed looking over the file, participants were given the special education folder. Each participant was given the opportunity without a time limit to examine both the discipline and special education documents. The participant was given a referral form for the student in the scenario based on either a drug of weapons violation. The scenarios on the referral forms were as follows:
Scenario 1. Lucas was in the halls between classes. A group of children were around Lucas and another boy. The two children, Lucas and the other boy, were talking about fighting. Lucas then said, “wait till lunch. I have my knife.” Lucas had a pocketknife that he showed the boy.
Scenario 2. Lucas was in the halls between classes. A group of children were around Lucas and another boy. The two children, Lucas and the other boy, were talking about drugs. Lucas then said, “wait till lunch, we can smoke this joint at lunch.” Lucas had a hand-rolled marijuana cigarette that he showed the boy.
After examining the files and referral from, the participants were asked to describe the procedures that should be followed including all persons to be contacted, documents created or referenced, etc. Based on feedback from the piloting of the script, specific prompts were included to increase the volume of information gathered, for example; “Can you tell me more?”, “Go on”, “After you (repeat the last thing the participant said) then what would you do?”, “In your experience, what would happen next?”, etc.
The participants were each thanked for their time, and asked if there was anything that was not asked that should have been asked, or anything they would like to add. In order to establish validity, the participants were asked the following two questions: Is this a realistic, valid, scenario that could happen in your school?, and Are the forms used in this study valid and realistic? Finally, the participants were asked to fill out a demographic information sheet (see appendix E). In addition, the participants from Zilz (2003) completed this same demographic information sheet. After completion of data collection, participants were asked if they had any questions.
Following each interview, the tape was transcribed into text by the principal investigator. Data was collected for the following eight areas: (a) requirements for parent involvement, (b) requirements for conducting the meeting, (c) requirements for a proper behavior plan, (d) requirements for a proper IEP, (e) optional procedures identified, (f) validity, (g) demographics, and (h) reliability of scoring.
Requirements for parent involvement. A chart was created that identified each of the three areas in this category. Each chart cell was coded with a one if the step was mentioned as a part of the procedure to be followed and a zero if it was not. In addition, these scores were combined with the scores of the high school administrators they were paired with to create an overall list of procedures mentioned by the pair.
Requirements for conducting the meeting. A chart was created that identified each of the three areas in this category. Each chart cell was coded with a one if the step was mentioned as a part of the procedure to be followed and a zero if it was not. In addition, these scores were combined with the scores of the high school administrators they were paired with to create an overall list of procedures mentioned by the pair.
Requirements for a proper behavior plan. A chart was created that identified each of the three areas in this category. Each chart cell was coded with a one if the step was mentioned as a part of the procedure to be followed and a zero if it was not. In addition, these scores were combined with the scores of the high school administrators they were paired with to create an overall list of procedures mentioned by the pair.
Requirements for a proper IEP. A chart was created that identified each of the three areas in this category. Each chart cell was coded with a one if the step was mentioned as a part of the procedure to be followed and a zero if it was not. In addition, these scores were combined with the scores of the high school administrators they were paired with to create an overall list of procedures mentioned by the pair. In addition, the sum of all of the twelve procedures identified by that participant was recorded as that participant’s adherence to regulations score.
Optional procedures. A chart was created that identified the four areas in this category. Each chart cell was coded with a one if the step was mentioned as a part of the procedure to be followed and a zero if it was not. In addition these scores were combined with the scores of the high school administrators they were paired with to create an overall list of procedures mentioned by the pair.
Validity. The data for validity was recorded using a five-point scale for each category, scenario validity, and form validity. The following criteria determined the rating: complete agreement, 5; agreement with only one exception (i.e. this form is different than what I am used to, but everything else looks right), 4; agreement with more than one exception, 3; disagreement with some positive comment, 2; and complete disagreement, 1.
Reliability. In order to ensure reliability, an independent observer was trained to score procedures using the same format as the principal investigator. Four random interviews were selected using the random number generator in Excel. The independent observer scored the four selected interviews. The inter-rater reliability was then calculated. If a 90% or greater reliability had not been achieved, the principal investigator would have re-scored the interviews and repeated the reliability procedure (Gay & Airasian, 2003).
Demographics. A chart was created to record demographic data. The information was recorded by placing a one in the cell if that characteristic was present and a zero if it was not. Items that did not match this method were recorded as appropriate (i.e. age, years teaching, etc.) (Dillman, 1978; Gay & Airasian, 2003; Salant & Dillman, 1994).
This research project was designed to analyze four sets of data: (a) procedures identified by special education experts, (b) validity of the materials used, (c) reliability of the data collected, and (d) demographics.
Procedures identified. Procedures identified by each special education expert were compared to the list of 12 legally required items identified by Zilz (2003). This allowed the investigator to determine what procedures special education experts did or did not identify. The items identified by the special education experts were then compared with the items identified by high school administrators. Finally, the items identified by special education experts were combined with the items identified by a regular education administrator in order to determine what procedures were identified by the pairing of these two decision-makers.
Validity. The results of the special education experts answers to the two validity questions: Is this a realistic, valid, scenario that could happen in your school?, and Are the forms used in this study valid and realistic?, were scored. A five-point scale was used to rank the perceived validity of the scenario and forms.
Reliability. In order to ensure reliability, an independent observer was trained to score procedures using the same format as the principal investigator. Four random interviews were selected using the random number generator in Excel. The independent observer scored these four interviews. The inter-rater reliability was then calculated by dividing the total number of cells that both raters marked the same by the total number of possible cells and then multiplying that result by 100. Using an identical procedure to determine the scoring reliability for regular education administrator’s responses, Zilz (2003) reported an inter-rater reliability of 96%.
Demographics. All demographic data collected were descriptively analyzed. The results of each group, administrators and special education experts, were examined separately. The results of the two groups were then compared to determine if differences existed.
Results
It was hypothesized that special education experts would: (a) identify all 12 required procedures. (b) identify more procedures than high school administrators. and (c) when paired with the results of a regular education administrator all twelve procedures would be identified. The results of the study were not as hypothesized, but did successfully answer all three questions. Only one special education expert identified all 12 procedures. Special education experts on average identified 21% more procedures than regular education administrators, 71% versus 50%. And when paired they identified, on the average, 78% of the 12 procedures. The results are presented in terms of: (a) requirements for parent involvement, (b) requirements for conducting the meeting, (c) requirements for a proper behavior plan, (d) requirements for a proper IEP, (e) optional procedures, (f) validity, (g) reliability, and (h) demographics.
Requirements for parent involvement
The procedure least identified was item number two, providing procedural safeguards to parents on the day the suspension is assigned. The only item that regular education administrators identified more often then special education experts was to contact the parents the day the suspension is assigned (N= 30 compared to N= 26). None of the requirements for parent involvement were identified by all the pairs (see Table 4).
Every pair identified the professional members of the IEP team that would need to be present at the manifestation determination meeting (N= 36), and all but one stated that they would have the meeting within the time required (N=35). However, only 69% (N= 25) of the special education experts identified that they would actually conduct the meeting before assigning over 10 days of suspension. However, 80% of the pairs (N= 29) identified that they would have the meeting before assigning the 10th day of suspension (see Table 5).
Overall, the requirements for a proper behavior plan were the least identified items by the paired participants. Even though 96% of the pairs (N= 33) identified that they would examine the behavior plan. Only 56% (N= 20) mentioned the use of a functional behavior assessment. Furthermore, only 58% (N= 21) stated that they would make sure the behavior plan was followed (see Table 6).
When the participants were paired, the requirements for a proper IEP were identified more often than any other categories of required procedures. All of the pairings stated that they would check to see if the IEP was current and that they would check to see if the IEP met the child’s needs (N= 36). Only 50% of the pairs (N= 18), however, identified that they would actually make sure the IEP was being implemented (see Table 7).
Eighty-three percent of the pairs identified that they would call the police, and revise the IEP to change the child’s placement (N= 30). Eighty-six percent identified that they would place the student for 45 days in an interim alternative educational setting (IAES) (N= 31). Only 10% (N= 4), however, stated that if the parents contested the 45 day removal, a hearing officer could bypass the stay put rule for the safety of the school and order the 45 IAES (see Table 8).
A five-point scale was used to rank the special education experts opinion concerning the validity of the scenario and the forms used. Five was the highest possible score and one was the lowest possible score. The validity of the analog scenario was rated at an average of four and eight tenths, which constitutes a validity rating of 96%. The validity of the forms was rated at an average of four and six tenths, which constitutes a validity rating of 92%.
Four subjects were randomly selected out of the 36 participants. An independent rater coded the prepared charts for these selected subjects. The results of the independent rater were compared to the results of the primary investigator’s scoring of the same participants. A 94% reliability was achieved.
The Demographic information for regular education administrators and special education experts were similar in all but four categories (see Table 9). Regular education administrators where nearly all male (34 male, 2 female). Special education experts were equally split between the genders (18 male, 18 female). Regular education administrators had on the average two education-related certifications, as opposed to special education experts who had on the average three education-related certifications. Regular education experts reported that it had been, on the average, a longer time (3.5 years) since they received formal training in special education and a shorter time (1.7 years) since they were trained in manifestation determination issues. Special education experts reported that it had been a shorter time (1.9 years) since they received formal training in special education and a longer time (2.8 years) since they were trained in manifestation determination issues.
Discussion
The extent to which special education experts within Central Pennsylvania described legally sound procedures when presented with a manifestation determination situation in comparison to how administrators described the same scenario was investigated. Thirty-six special education experts were each assigned to one of four groups. Those four groups were based upon Zilz (2003). The independent variables assigned to these groups were the label of the child (ADD/ADHD v. MR) and the nature of the offense (weapon violation v. drug violation). However, since Zilz, using an ANOVA with an alpha of .05, detected no significant difference in legal compliance scores among the groups, this study does not further explore comparisons among the four groups. The groups were maintained in order to facilitate a parallel between the procedures identified by administrators in Zilz and the procedures identified by special education experts in this study.
Based on a review of court and hearings cases within The Individuals with Disabilities Education Law Reporter (IDELR), 12 procedural components were identified as being legally critical (Zilz, 2002). The same 12 procedures were investigated in this study. The results of this study support the claims made in the literature that professionals in the field do not have enough knowledge in the area of manifestation determination (Buck, et al., 2000; Drasgow, et al., 1999; Marshall & McCarthy, 2002). Only one of the special education experts identified all 12 of the legally required procedures investigated in this study. In addition, even though 58% (21 of 36) of the administrator’s results were improved by incorporating the results of special education experts, only the pair containing the above mentioned special education expert identified all 12 procedures. In fact, the average pair identified only 78% (9.4) of the 12 required steps.
The purpose of this investigation was to replicated the Zilz (2003) investigation by interviewing related special education experts. In addition, the results were compared to the results found by Zilz in order to clearly identify manifestation determination procedures used by administrators in Central Pennsylvania. The results of this study indicate that they would not, and furthermore, when combined with the results of the administrator’s responses from Zilz (2003) the pairs did not either. The following narrative will present a discussion of the results for: (a) each of the four categories of required procedures, (b) optional procedures, (c) validity, (d) reliability, (e) demographics and (f) limitations of the research. Implications for training and future research are included.
Requirements for Parent Involvement
Of the 12 required procedures examined, the procedure least identified was item number 2, providing procedural safeguards to parents the day the suspension is assigned (34 CFR § 300.523 (a) (1)). This omission leaves the whole process in a vulnerable position. The due process system relies on all parties involved having an awareness of their legal rights. If the parents are not informed of the options they have in this matter, how can it be expected that they will be able to properly represent their children? Without this step, the school will likely be held accountable by the parents less often, however, they will also likely lose those cases that the parents pursue. The cases reviewed in IDELR indicated that school districts won three times as many cases before 1998. However, after the 1997 regulations (1998-2000) were enacted, parents won more than twice as many cases as the school district. In addition, the number of decisions being appealed by parents is growing (Zilz, 2003).
Requirements for Conducting the Meeting
The area of concern in this category is a technical, but important one. Twenty percent of the pairs would first assign more than 10 days of suspension and then would have the manifestation determination meeting. This leaves the school open for a decision rendered against them on this issue. The regulations clearly state that a decision can not be made to change the placement of a child without first having a formal meeting with professional and parent involvement (34 CFR § 300.520 (b) (1)). Assigning the additional days previous to the actual decision of a manifestation determination team is not only in violation of the regulations, but sends a message that the school has predetermined the fate of the child before due process was implemented.
There were two areas of particular concern in this category. The use of a functional behavior assessment (FBA) is clearly required in every disciplinary scenario involving a special needs student (34 CFR § 300.520 (a) (1) (i)). The FBA was identified as a confusing portion of the IDEA regulations (Hartwig & Ruesch, 2000; Katsiyannis & Maag, 2001). The regulations require a FBA, but does not describe or define what is required in order to conduct a FBA. Without clearly defined guidelines, we must rely on the expertise of the professionals involved, which supports the need for better training of administrators who are responsible for making these decisions (Buck, et al., 2000; Drasgow, et al., 1999).
Forty-two percent of the pairs missed a key functional portion of the required procedures, making sure the behavior plan was implemented as written. Examining the behavior plan verifies that the proper planning has taken place, but without the added step of making sure the plan is carried out the behavior plan may only be misleading paper. During a hearing an administrator will be required to not only provide the written plan, but also prove that the plan was followed.
All of the pairings stated that they would check to see if the IEP was current and if the IEP met the child’s needs. However, only 50% of the pairs identified that they would actually make sure the IEP was implemented (34 CFR § 300.523 (c) (2) (i)). If only half of the schools are following through on this required procedure, there is no way of knowing how many of the students being removed for disciplinary issues are actually suffering from academic frustration from an IEP that is not being implemented. The Federal regulations (34 CFR § 300.660) state, “ An SEA must address how to remediate the denial of those services [required to provide FAPE], including, as appropriate, the awarding of monetary reimbursement or other corrective action…”. Therefore, a school may not only loose the disciplinary case, but may also be required to pay for compensatory education if they can not demonstrate that the child’s IEP was implemented.
Three optional procedures were identified by most of the investigated pairs, call the police (34 CFR § 300.529), place the child in an IAES for up to 45 days (34 CFR § 300.520 (2)) and revise the IEP and place the child in an appropriate setting to meet the child’s needs (34 CFR § 300.521). The first two of these procedures are designed to have the student removed from the school on an emergency temporary basis. The last of these is not meant to be used as a means of discipline, but as a means of providing a proper placement for the child. It can be hypothesized that the school has an interest in removing the student from the school environment. However, the use of these procedures does not relieve the school of its responsibility to implement required procedures. If the optional procedures are used and the required follow up procedures are not; schools will find themselves in legal difficulty. The last procedure, petitioning the hearing officer to order a 45 day removal (34 CFR § 300.521) was only mentioned by 4 of the 36 groups. Based on this study alone, it is impossible to determine if the subjects were unaware of the option to petition the hearing officer, or if they simply did not project beyond the scenario in order to comment on what could happen if the parents contest an initial removal.
The scenario was found to be realistic and valid. All of the special education experts made positive comments regarding both the scenario and the forms used. Many of them indicated that they believed the scenario might have been taken from a situation they were involved with or had heard about. It is assumed that when research is conducted using an analog scenario, the subjects will identify with the analog and draw parallels back to the source scenario (Holyoak & Thagard, 1997; Hummel & Holyoak, 2003; Simmons & Lunetta, 1993). This assumption seems to have been found true for this study.
The reliability of 94% is an acceptable reliability score (Gay & Airasian, 2003). This indicates that the principal investigator and a trained independent observer agreed on nearly all of the items on the four randomly selected interviews for this procedure.
The results of the demographic information recorded indicates the following data about the average special education expert: (a) 48 years old, (b) white, (c) either male or female, (d) holds a masters degree received in 1990, (e) is an administrator, (f) holds three or more education based certifications, (g) has 14 years of administrative experience and 10 years of teaching experience, and (h) has not received specific training in manifestation determination issues in over a two and a half year period. In comparison, the regular education administrators reported the following average data: (a) 46 years old, (b) white, (c) male, (d) holds a masters degree received in 1996, (e) is an administrator, (f) holds two education based certifications, (g) has 14 years of administrative experience and 8 years of teaching experience, and (h) has not received specific training in manifestation determination in over one and a half years.
There was not a large amount of difference between the characteristics of the regular education administrator and the special education expert. In both groups all but one participant was white. However, the special education group was split, half male and half female, whereas the administration group had only two females. There seems to be an overall increase in females achieving positions as educational leaders (McCarthy & Kuh, 1998). This explains the split in gender of special education experts, but does not explain the disproportionately small number of females in regular education administrator roles. This result is a question for future study.
Regular education administrators tended to be either principals or vice principals and had on the average two education-related certifications. The majority of the special education experts held administrative positions, they, however, held a variety of titles, such as supervisor, director, head teacher, etc. In addition, special education experts tended to have three or more certifications. It could be hypothesized that since the special education experts have more certifications they are better trained and that is why they identified more of the procedures in this study.
It was reported that it had been a longer time since special education experts, in comparison to administrators, had been trained in manifestation determination procedures (2.8years compared to 1.7 years). Counter to what would be expected, the group that had been trained most recently identified fewer procedures. This discrepancy could be due to the quality of the training. It is also possible that the experiences of the professionals involved led to the difference in scores. Further research is indicated.
The scope of the study is limited to 12 procedures that were identified by Zilz (2003) as legally required and 4 procedures that are optional. The participants for this study were randomly selected from Central Pennsylvania. The results of this study, therefore, can only be generalized to Central Pennsylvania (Gay & Airasian, 2003). In addition, studies that require volunteers have a limitation as to how completely they can generalize. Zilz (2003) had a response rate of 70% and this study had a 90% return rate. This return rate should allow the results to be generalized to the population of Central Pennsylvania high school administrators and special education experts (Krejcie & Morgan, 1970).
Only two studies were found in the literature that examined the actual procedures that school districts follow in a disciplinary situation involving a student with an IEP, Davis (1999) and Zilz (2003). Davis found that none of the 40 schools examined met all 67 policies she identified as being necessary, and Zilz found that none of the 40 administrators investigated identified all 12 procedures he identified as legally required. The findings of this study are similar to both the findings of Davis and Zilz. Only one of the 36 special education experts investigated identified all 12 legally required procedures. The remaining literature that addresses manifestation determination issues comes from the opinions of experts in the field.
Experts report that it is important to administer discipline in a consistent and reliable manner. In order to do that, when a child with an IEP is involved, a consistent and reliable method of determining if the behavior is a manifestation of that child’s disability is required (Hartwig & Ruesch, 2000; Katsiyannis & Maag, 2001; Knoster, 2000; Yell & Katsiyannis, 2000). The problem becomes even more complicated when the procedural requirements of the Individuals with Disabilities Education Act (IDEA) are included in this discussion (Zurkowski, et al., 1998). IDEA states, “If the IEP team and other qualified personnel determine that any standards in paragraph (c)(2) of this section were not met, the behavior must be considered a manifestation of the child’s disability” (34 CFR § 300.523 (d)). In other words, if all of the procedures are not followed it must be presumed that the child’s behavior is a manifestation of the child’s disability.
Experts have reported that education professionals do not have the skills or knowledge to determine if a child’s behavior is due to that child’s disability (Buck, et al. 2000; Drasgow, et al., 1999). The results of a review of the Individuals with Disabilities Education Law Reporter (IDELR) (Zilz 2003), and this study, indicate that experts are not following the procedures required by IDEA. Therefore, the question of the actual decision making abilities of these experts can not truly be addressed until they are first following consistent and legally sound procedures. In order for administrators to follow procedures, they must be aware of the procedures.
Training needs. Some of the special education experts indicated that they understood that there was a need for expertise in the area of special education law with quotes such as, “ People in administrative jobs absolutely have to be up on the special education laws”, or “ There are so many law suits going on, you really need to be on your toes”. The demographic data indicates that on the average it has been between one and half to two and a half years since these professionals have received training in manifestation determination procedures. Based on the findings of this study, it is clear that training is required at both the preparatory program level, in order to educate future administrators, and at the in service level to educate current educators. This finding matches the opinion of experts who have presented this need for training in the literature (Buck, et al., 2000; Drasgow, et al., 1999; McCarthy & Kuh, 1998; Sirotnik & Kimball, 1994; 1996), but until now there has been no research that has proven this need to be true.
Special education experts from this study, however, have expressed that there are pressures in the system that may require them to act in a manner inconsistent with procedures in order to provide what is viewed to be a safe environment for students. Comments, such as, “That is not technically legal, but that is what we do”, “I work for the district and if the district would say, no, that’s it, we want him out. Tell me what we need to do, then you know we….” Or “ there are ways to make it sound like a manifestation and ways to make it sound like it is not a manifestation.” Comments such as these reflect that administrators do not feel that the system will provide a proper decision if it were implemented correctly. However, since only one of the 36 investigated cases resulted in all the procedures being implemented, it is understandable that administrators do not perceive the system as reliable.
Administrators that do not follow procedures may put the courts in a position to allow children with disabilities to avoid appropriate consequences. A lack of disciplinary consistency does not benefit the school system or the student (Buck, et al., 2000). A child who performs a behavior that is not due to his disability, but as a result of controllable choice, should receive consequences consistent with the behavior. If this does not occur, a lack of equity is established between the expectations for children with and without disabilities (Buck, et al. 2000; Drasgow, et al., 1999).
Future research. There is little in the way of research in the literature regarding manifestation determination; this leaves it wide open for researchers interested in investigating this area. This study has taken the work of Zilz (2003) and expanded the scope to include special education experts. However, all of the participants were selected from Central Pennsylvania. Similar studies could be conducted in other locations. If enough studies of this kind were conducted across the country a true picture could be drawn as to what procedures administrators and special education experts are making in manifestation determination situations.
The research conducted in this study could be further expanded by looking more closely at the preparatory programs to discover exactly what is taught and to what extent that knowledge is retained by the administrators in future years. In addition, the content of in-services could be examined to determine if content is presented to educate administrators on appropriate procedures to follow if presented with a disciplinary removal involving a child with an IEP. The procedures covered in both the preparatory programs and the in-services could then be compared with the procedures identified as legally required by Zilz (2003).
There is a difference between the procedures the courts and regulations indicate that school districts need to follow and what administrators and special education experts say they follow. If administrators are not following the prescribed procedures, then children in removal situations are most likely not receiving due process as required by federal regulations. This conflicts with the very essence of special education legislation, which is designed to protect the rights of students with special needs.
Administrators in charge of discipline within the high schools need to consult with special education experts to resolve these problems. This study showed that the overall compliance with federal regulations would be improved by 21% if the administrators had consulted a special education expert before making their decisions. However, it also concluded that even with this improvement the combined results of these two school leaders resulted in all but one of the schools leaving out at least one of the required procedures, and overall failing to identify 22% of the procedures.
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