TOWARDS AN OBJECTIVE EVALUATION OF TEACHER PERFORMANCE


 
Journal website: http://epaa.asu.edu/ojs/   Manuscript received: 23/12/2016 
Facebook: /EPAAA  Revisions received: 10/5/2017 
Twitter: @epaa_aape      Accepted: 11/5/2017 

 

education policy analysis 
archives 
A peer-reviewed, independent,  
open access, multilingual journal  
 
 
 
 
 
  

 Arizona State University 

 

Volume 25 Number 50       May 22, 2017 ISSN 1068-2341 
 

 

Were the Student’s Actions a Manifestation of the Student’s 
Disability? The Need for Policy Change and Guidance  

 
Maria M. Lewis 

The Pennsylvania State University 
United States 

 
Citation: Lewis, M. M. (2017). Were the student’s actions a manifestation of the student’s disability? 
The need for policy change and guidance. Education Policy Analysis Archives, 25(50). 
http://dx.doi.org/10.14507/epaa.25.2880  
 
Abstract: Under federal special education law, before a school district may discipline a student 
with a disability for greater than 10 days, it must first determine whether the student’s actions were 
a manifestation of his or her disability (IDEA, 2004). This requirement, referred to as 
manifestation determination review (MDR), aims to ensure that students with disabilities do not 
experience a significant disciplinary change in placement for actions that are caused by their 
disabilities. This article will discuss the evolution of the legal standard and the policy implications 
of a study that examined 80 MDR decisions in one large urban school district.  
Keywords: policy implementation; special education; education law; student discipline  
 
¿Dónde está la manifestación de la deficiencia del aluno? Una necesidad de cambio 
de políticas y orientación 
Resumen: De acuerdo con el derecho federal de educación especial, antes de un distrito 
escolar punir un déficit con una deficiencia de más de 10 días, o incluso el primer 
determinar se como acciones de aluno para una manifestación de su deficiencia (IDEA, 
2004). Esta exigencia, como una manifestación determinación revisión (MDR), una visa que 

http://epaa.asu.edu/ojs/
http://dx.doi.org/10.14507/epaa.25.2880


Education Policy Analysis Archives  Vol. 25 No. 50 2 
 

los estudiantes con deficiencia no experimente una cambio disciplinar significativa en la 
colocación de acciones que son causadas por sus deficiencias. Este artículo aborda la 
evolución del patrón jurídico y las implicaciones políticas de un estudio que analiza 80 años.  
Palabras-clave: implementación de políticas; educación especial; direito da educação; 
punición estudiantil 
 
As ações do aluno eram uma manifestação da deficiência do aluno? A necessidade 
de mudança de políticas e orientação  
Resumo: De acordo com a lei federal de educação especial, antes de um distrito escolar 
punir um aluno com deficiência por mais de 10 dias, o mesmo deve primeiro determinar se 
as ações do aluno foram uma manifestação de sua deficiência  (IDEA, 2004). Esta exigência, 
referida como manifestation determination review  (MDR), visa garantir que os alunos com 
deficiência não experimentem uma mudança disciplinar significativa na colocação de ações 
que são causadas por suas deficiências. Este artigo discutirá a evolução do padrão jurídico e 
as implicações políticas de um estudo que analisou 80 decisões MDR em um grande distrito 
escolar urbano. 
Palavras-chave: implementação de políticas; educação especial; direito da educação; 
punição estudantil  
 

Introduction 

The implementation of state and federal policy is a part of the everyday work of educators 
(Odden, 1991; Honig, 2006). However, research demonstrates that policies are not always 
implemented as intended or with fidelity (Cohen and Hill, 2001; Correnti and Rowan, 2007; 
Kennedy 2005; Rigby, Woulfin & März, 2016; Rowan and Miller, 2007). According to Young and 
Lewis (2015), “variation in implementation is the rule, not the exception” (p. 14). Given the 
complex, individualized nature of special education law, it is not surprising that it is an area of law 
where variation occurs frequently (O'Laughlin, L., & Lindle, J. C., 2014).  

Under federal special education law, before a school district may discipline a student with a 
disability for greater than 10 days, it must first determine whether the student’s actions were a 
manifestation of his or her disability (IDEA, 2004). This requirement, referred to as manifestation 
determination review (MDR), aims to ensure that students with disabilities do not experience a 
significant disciplinary change in placement for actions that are caused by their disabilities. This 
policy decision reflects the law’s equity-based underpinnings. However, implementing this standard 
is no easy task. Decision makers are tasked with the responsibility of determining the strength of the 
connection between the student’s disability and the misconduct under review. Due to the 
individualized nature of the decision making process, MDR is inherently subjective. Theoretically, 
the law assumes that this determination is accurately made when the requisite people are included in 
the decision making process and relevant information is reviewed. However, the relationship 
between MDR theory and MDR practice has not been explored.  

Because MDR is an intermediate step between special education identification and student 
discipline, an understanding of the implementation of MDR will enhance our understanding of a 
large and ever-growing body of research illustrating disparities in special education identification, 
student discipline and placement (e.g. Harry & Klingner, 2006; Parrish, 2002; Skiba et al., 2006a; 
Skiba et al. 2006b). Although there is literature on best practices and courts’ treatment of 
manifestation determination review, little empirical research has examined how this decision making 
process plays out in practice (Arnberger & Shoop, 2006; Katsiyannis & Maag, 2001; Zilz, 2010; 
Zirkel, 2006, 2010). The closest examination of the implementation of the MDR criteria is Walker 



Were the Student’s Actions a Manifestation of the Student’s Disabilit y? 3 
 

and Bringham’s 2016 study, which examined teachers’ understanding of the standard through the 
use of two hypotheticals.  

This policy-focused article is grounded in findings of a study that examined 80 decisions in 
one large urban school district. A separate publication provides a detailed presentation of the study’s 
main findings and implications for practice (Lewis, in press). The purpose of this article is to situate 
this study’s findings within the broader IDEA policy discussion. For background and context, this 
article will provide an in-depth analysis of the evolution of the legal standard for MDR. A brief 
overview of findings will be discussed and the narrative will shift to policy analysis and policy 
implications.  

 

Policy Framework 
 
Based on concerns that students with disabilities were not being provided educational 

services, Congress enacted the Education for All Handicapped Children Act of 1975 (EAHCA), 
now called the Individuals with Disabilities Education Act (IDEA). Specifically, the law sought to 
address the following concerns: students with disabilities were excluded from education altogether; 
school districts provided students with disabilities inadequate services; unidentified disabilities were 
interfering with students’ ability to succeed academically; and school districts had insufficient 
funding to address students’ needs (EAHCA, 1975).  

Prior to 1997, IDEA did not have a discipline provision. Consequently, the concept of a 
manifestation determination originated in case law. However, before delving into manifestation 
determination case law, it is first necessary to understand that all students facing potential 
disciplinary action are entitled to due process under the 14th Amendment (Goss v. Lopez, 1975). In 
Goss v. Lopez, the Supreme Court determined that “[a]t the very minimum…students facing 
suspension and the consequent interference with a protected property interest must be given some 
kind of notice and afforded some kind of hearing” (p. 579). Similar to the disciplinary action under 
review in Goss, MDR requires analysis of misconduct that may lead to a greater than 10 day removal 
from school. Accordingly, drawing conclusions about the relationship between a student’s actions 
and his or her disability helps to guarantee that due process is afforded to students with disabilities 
prior to disciplinary action.  

In the years following Goss, courts heard a series of challenges to school district decision 
making with regards to disciplining students with disabilities. For example, in Stuart v. Nappi (1978), 
a Connecticut court considered the causal link between a school district’s failure to provide adequate 
educational programming and a student’s subsequent behavioral problems. The court determined 
that taking disciplinary action under such circumstances is “unjustifiable” in light of the law’s 
guarantee of a free appropriate public education (p. 1241). A year later, in Doe v. Koger (1979), an 
Indiana court determined that “[a] school which accepts Handicapped Act funds is prohibited from 
expelling students whose handicaps cause them to be disruptive” (p. 228). Furthermore,  

[u]nlike any other disruptive child, before a disruptive handicapped child can be 
expelled, it must be determined whether the handicap is the cause of the child's 
propensity to disrupt. This issue must be determined through the change of 
placement procedures required by the handicapped act. (p. 229)  

 
Therefore, a determination regarding the relationship between a student’s actions and his or her 
disability is a special education decision that must be made by individuals who are designated by 
special education law. Disciplinary decisions should be separate from that determination.  



Education Policy Analysis Archives  Vol. 25 No. 50 4 
 

The relationship between misconduct and a student’s disability reached the federal court of 
appeals level in 1981 in S-1 v. Turlington. Because of the greater weight of authority attributed to cases 
reaching the appellate level, this case is worthy of greater examination. In this case, students 
challenged the school district’s decision to discipline them under the EAHCA and Section 504 of 
the Rehabilitation Act, which prohibits discrimination on the basis of disability. Each of the students 
received an expulsion greater than one and a half school years. Although all students received a 
hearing upon expulsion, the school district did not make a determination regarding the relationship 
between the students’ disabilities and their misconduct. Furthermore, the superintendent determined 
that because S-1’s disability was not classified as seriously emotionally disturbed, it was categorically 
impossible to find that S-1’s actions were a manifestation of his disability. School officials 
emphasized the student’s ability to understand school rules and policies and to appreciate the 
differences between right and wrong. Moreover, the school district argued that psychological 
assessments revealed that the students’ disabilities were not behavioral in nature, thereby removing 
the possibility that their actions could be a manifestation of their disabilities. The court found these 
arguments unpersuasive. The court determined that  

 (1) before a handicapped student can be expelled, a trained and knowledgeable 
group of persons must determine whether the student's misconduct bears a 
relationship to his handicapping condition; (2) an expulsion is a change in 
educational placement thereby invoking the procedural protections of the EHA and 
section 504; (3) expulsion is a proper disciplinary tool under the EHA and section 
504, but a complete cessation of educational services is not. (p. 350) 

 
The Sixth Circuit Court of Appeals reaffirmed Turlington’s reasoning and interpretation of relevant 
disability law in the following year (Kaelin v. Grubbs, 1982).  

The early manifestation determination case law culminated in 1986 with Doe v. Maher. The 
student in this case qualified as a student with a disability under both Section 504 of the 
Rehabilitation Act and EAHCA. Specifically, the student was identified as “emotionally disturbed” 
(p. 1476). The Ninth Circuit clarified that students with disabilities are not protected from 
disciplinary measures when misconduct bears only a loose relationship to the student’s disability. 
Furthermore, the court elaborated more on the procedural protections that are available to students 
with disabilities in the event that school district action amounts to a significant change in placement. 
Among the protections were notice and “convening an [Individualized Education Program (IEP)] 
meeting to assess the reason for the misconduct and the appropriateness of the child’s current 
educational placement” (p. 1482). Through its decision, the court acknowledged the difficulty in 
distinguishing between behaviors that bear a close enough relationship to a student’s disability and 
those that do not.  

School districts feared that the standard set forth in manifestation determination case law 
significantly interfered with their ability to address serious safety concerns. This issue reached the 
Supreme Court in Honig v. Doe (1988), a continuation of Doe v. Maher (1986). Honig involved two 
students identified as having an emotional disturbance who were suspended indefinitely pending 
expulsion proceedings. The conduct in question was deemed to be “related to” the students’ 
disabilities (p. 312). The plaintiffs claimed that such a denial of services violated the EAHCA’s “stay-
put” provision, which requires that students with disabilities remain in the current placement during 
relevant review or proceedings (p. 308). However, the Court explained that the law does not leave 
school districts without a remedy under circumstances that present serious danger. On the contrary, 
school districts can reach an agreement with parents in regard to an alternative placement or, in the 
absence of such an agreement, seek injunctive relief from the court to grant the school district the 
authority to require an alternative placement.  



Were the Student’s Actions a Manifestation of the Student’s Disabilit y? 5 
 

This exploration of case law illustrates the foundation that gave rise to the statutory 
codification of the manifestation determination criteria in 1997. From these cases, one can see the 
delicate balance at stake for school districts. On the one hand, school districts have an obligation to 
provide a free appropriate public education, a part of which is safeguarding against the use of 
disciplinary measures for misconduct that was caused by students’ disabilities. On the other hand, 
school districts have an obligation to maintain a safe learning environment.  

1997 Reauthorization of IDEA 

In 1997, Congress amended the federal statute through the Individuals with Disabilities 
Education Act Amendments (IDEA 1997), which, unlike the prior version of the law, included a 
provision that specifically addressed student discipline. When a student’s actions violated a school 
discipline code such that a disciplinary change in placement greater than 10 days was possible, the 
law required decision makers to determine whether the student’s actions were linked to his or her 
disability. The review was to be carried out by the IEP team and other qualified personnel. The law 
required consideration of  “all relevant information, including—(I) evaluation and diagnostic results, 
including such results or other relevant information supplied by the parents of the child (II) 
observations of the child and (II) the child’s IEP and placement” (IDEA, 1997). The review 
permitted decision makers to determine that a student’s conduct was not a manifestation of his or 
her disability only if certain standards were met. Specifically, in order to reach such a conclusion, the 
IEP team had to determine that  

(I) in relationship to the behavior subject to disciplinary action, the child's IEP and 
placement were appropriate and the special education services, supplementary 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; and (III) the child's disability did not impair the ability of the 
child to control the behavior subject to disciplinary action. (IDEA, 1997)  
 

Thus, under the 1997 standard, school districts bore the burden of demonstrating that a student’s 
actions were a manifestation of his or her disability.  

Parents had a right to appeal if they disagreed with the district’s determination. Under such 
circumstances, the hearing officer was to determine whether the school district met its burden of 
demonstrating that the misconduct in question was a manifestation of the student’s disability. 
Furthermore, the 1997 standard extended protections to students who had not yet qualified for 
special education services in the event that the school district had knowledge that the student had a 
disability. In the absence of such knowledge, with limited restrictions, the school district was free to 
utilize disciplinary measures that applied to students without disabilities (IDEA, 1997). 

2004 Reauthorization of IDEA  
 

The 2004 Reauthorization of the Individuals with Disabilities Education Act (IDEA, 2004) 
“uses a more simplified, common sense procedure for schools to use in making the actual 
manifestation determination” (Congressional Report, 2003). According to the Congressional Report,  

[u]nder the 1997 law, schools were forced to prove a negative: that a child’s 
behavior was not a manifestation of his or her disability based upon a complicated 
set of factors. Many schools found this test to be confusing and unfair. (p. 44) 
 

The 2004 Reauthorization of IDEA came with a number of procedural and substantive changes in 
the manifestation determination review provision of the law (Table 1). Rather than requiring the full 



Education Policy Analysis Archives  Vol. 25 No. 50 6 
 

IEP team to conduct manifestation determination reviews, the current version of the law requires 
that the team of decision makers include “the local educational agency, the parent and all relevant 
members of the IEP team (as determined by the parent and the local educational agency)” (IDEA, 
2004). In terms of the information sources reviewed, the law is much more general than it was in 
1997. Decision makers now must review “all relevant information in the student’s file, including the 
child’s IEP, any teacher observations and any relevant information provided by the parents” (IDEA, 
2004). The 2004 criteria also require a tighter link between student misconduct and the student’s 
disability. Specifically, decision makers must determine “if the conduct in question was caused by, or 
had a direct and substantial relationship to, the child's disability; or if the conduct in question was 
the direct result of the local educational agency's failure to implement the IEP” (IDEA, 2004)  
   
 

Table 1  
IDEA 1997 and IDEA 2004 Comparison 

 IDEA 1997 IDEA 2004 

Decision 
makers  

“IEP Team and other qualified personnel” “the local educational agency, the 
parent, and relevant members of 
the IEP Team (as determined by 
the parent and the local 
educational agency)” 
 

Information 
reviewed 
 

“(I) evaluation and diagnostic results, including such 
results or other relevant information 
supplied by the parents of the child; 
(II) observations of the child; and 
(III) the child's IEP and placement” 
 

“all relevant information in the 
student's file, including the child's 
IEP, any teacher observations, 
and any  relevant information 
provided by the parents” 
                                                                       

Criteria Manifestation unless: 
“(I) in relationship to the behavior subject to 
disciplinary action, the child's IEP and placement 
were appropriate and the special education services, 
supplementary 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; and 
(III) the child's disability did not impair the ability of 
the child to control the behavior subject to 
disciplinary action” 

Manifestation only:  
“(I) if the conduct in question was 
caused by, or had a direct and 
substantial relationship to, the 
child's disability; or 
 
(II) if the conduct in question was 
the direct result of the local 
educational agency's failure to 
implement the IEP” 
 
 

 

 The outcome of manifestation determination review is significant for students with 
disabilities. If decision makers find that the student’s actions were a not manifestation of his or her 
disability, the school district is free to discipline the student in the same manner as students without 
disabilities. However, it is important to note that federal special education law guarantees that 
students with disabilities receive post-expulsion services (IDEA, 2004), a guarantee that may not be 
available to students without disabilities under state law.  



Were the Student’s Actions a Manifestation of the Student’s Disabilit y? 7 
 

If decision makers determine that the student’s actions were caused by or had a direct and 
substantial relationship to the student’s disability, the law requires the IEP team to conduct a 
Functional Behavioral Assessment and create a Behavioral Intervention Plan (BIP) (if the student 
does not already have one in place). Neither of these terms are defined in the law. However, other 
provisions of the law discuss the use of positive behavioral interventions when a student’s behavior 
impedes his or her learning or that of other students. (IDEA, 2004). If the student has a behavioral 
plan in place, the IEP must make adjustments accordingly.  

If a team of decision makers finds that the student’s actions were a manifestation of his or 
her disability, the student must return to his or her prior placement. There are some exceptions to 
this result. Parents and the school district may agree that a different placement is appropriate. 
Moreover, regardless of the strength of the connection between the student’s disability and his or 
her conduct, students can be removed for up to 45 days for incidents involving guns, drugs, and 
serious bodily injury (IDEA, 2004).  

In sum, this section provided background for understanding the context and significance of 
the manifestation determination provision of IDEA. The standard is complicated to implement and 
practitioners need guidance. Therefore, it is not suprising that much of the scholarship in this area 
focuses on the legal requirements and related court decisions (Arnberger & Shoop, 2006; 
Katsiyannis & Maag, 2001; Zilz, 2010; Zirkel, 2006, 2010). No published empirical research could be 
found that examines how decision makers sift through relevant information to implement the 
criteria set out in the law in practice. Consequently, this study sought to understand the factors that 
influence decision makers when they determine whether a student’s actions were a manifestation of 
his or her disability. 

 

Methods 
 
To acquire a broad understanding of district-wide implementation, this study employed a 

study approach (Merriam, 1988). Recognizing the litigious nature of special education law, respect 
for confidentiality and privacy was critical to finding a willing school district. Initial contact was fairly 
informal. After discussion regarding the value of the study to the school district, I was directed to 
submit an application the school district IRB. Simultaneously, I worked through the University IRB 
process. In order to protect student identity, the University IRB required the paperwork to be 
redacted in compliance with FERPA.  

During one school year, the school district conducted a total of 721 MDRs. More specifically, 
the school district conducted 470 MDRs that resulted in “No” decisions (the misbehavior and 
child’s disability were not related) and 251 “Yes” decisions (the misbehavior was a manifestation of 
the child’s disability). All decisions were assigned a random number using a random number table. 
80 decisions were selected for review. Specifically, 40 “No” decisions and 40 “Yes” decisions were 
selected at random by the school district. An equal distribution of “Yes” and “No” decisions was 
appropriate because the study sought to conduct an in-depth analysis of the content of the 
paperwork. Consequently, a sample with outcome proportions equal to the population of all 
decisions made during the 2012-2013 school year was not necessary to understand the factors that 
influence decision makers during manifestation determination review.  

In order to maintain anonymity of the school district, the details of the form’s requirements will 
be discussed in general terms only. The description is based on shared characteristics between the 
form used by school district in the present study and the forms used in multiple states and multiple 
school districts across the country. In accordance with the law, state education agencies and school 
districts create forms that require decision makers to describe the behavior that necessitated the 



Education Policy Analysis Archives  Vol. 25 No. 50 8 
 

MDR and provide documentation of all relevant information that was considered. The law requires 
decision makers to “review all relevant information in the student's file, including the child's IEP, 
any teacher observations, and any relevant information provided by the parents” (IDEA, 2004). 
Consequently, to document consideration of each source of information, relevant paperwork is 
generally divided accordingly. The document also generally requires school districts to answer the 
two questions posed by IDEA: Did the behavior have a substantial relationship to or cause the 
misconduct? Was the behavior a direct result of the school district’s failure to implement the 
student’s IEP? Generally, below each one of these questions is a space to provide justification.  

Coding was an interative process, involving multiple stages of review. The first stage 
consisted of a general review of all portions of the paperwork associated with all 80 decisions. 
General information was gathered, such as student demographic data, the nature of the infraction, 
and participating decision makers by title. This stage also sought to identify general themes or 
categories through open coding (Merriam, 2009, p. 204). Codes or categories are “conceptual 
elements that ‘cover’ or span many examples…of the category” (p. 181). These categories were 
characterizations of the factors that emerged upon review of the entire sample. Notes were taken as 
decisions were reviewed. To further refine the categories, the second stage involved targeted review 
of the portion of the paperwork that asked decision makers to determine whether a student’s actions 
were caused by or had a direct and substantial relationship to the student’s disability. Exact language 
from this portion of the paperwork for each decision was copied and pasted into a table for analysis 
and comparison. The table included both “Yes” and “No” columns. The third stage involved an 
examination of each remaining aspect of the paperwork in isolation (for example, information 
provided by parents, teacher observations, student’s IEP, etc.) Similar to the second stage, each 
portion of the paperwork received its own “Yes” and “No” table for isolated review during stage 
three. This allowed for comparison according to sources of information considered by decision 
makers. Together, these first three stages revealed categories and themes in the implementation of 
both the procedural and substantive aspects of the MDR process. Moreover, stages one through 
three uncovered factors that may influence decision makers during manifestation determination 
review, the core of the research question posed in the study. The fourth stage used the factors 
identified in stages one through three as a “scheme of categories” for a final review and sorting of 
decisions (Merriam & Tisdell, 2015, p. 182). At this stage, decisions were matched with identified 
categories. Overall, the process of document analysis was both “inductive and comparative” 
(Merriam & Tisdell, 2015, p. 201).  

To triangulate data reviewed during document review, an interview was conducted with two 
district level employees who are responsible for oversight and professional development of 
manifestation determination review. Interview questions included general questions about 
professional development and training around the topic of manifestation determination review, 
questions specific to themes or factors identified during document review and questions aimed 
directly at how interviewees believe decision makers determine whether a student’s actions were a 
manifestation of his or her disability. Final questions focused on interviewees’ understanding of 
district-wide practice and implications, including data use, strengths and weaknesses and the 
frequency of challenges or appeals. In addition to the interview, five years of district MDR 
professional development materials were reviewed. 

 

Findings 
 
Through its research design and methodology, this study sought to understand the factors 

that influence decision makers during manifestation determination review. In general, the factors 



Were the Student’s Actions a Manifestation of the Student’s Disabilit y? 9 
 

that influenced decision makers were not always clear. In many cases, documentation lacked detailed 
explanations of the decision making process. For example, a student with an unspecified disability 
was caught with an illegal substance at school. The paperwork indicated that various sorts of data 
were considered. However, it is unclear which aspects of the data were considered or how such data 
was used. It is also unclear whether the student had a history of behavioral problems. From the 
paperwork, all that is known is that the teacher or teachers stated that the “student is a hard-working 
and respectful student” and the parent believes that the student “demonstrates positive behavior in 
all settings.” Other aspects of the paperwork merely state that information was considered. Without 
explaining their reasoning, decision makers concluded that the student’s unspecified disability “had 
nothing to do with” possession of an illegal substance. While decision makers may have based their 
decision on a comprehensive overview of relevant information and sound reasoning, without 
documentation, it is difficult to track the decision making process.  

Thorough analysis of sample decisions revealed that the law, as written, permits arbitrary 
decision making in implementation. To further validate the arbitrary nature of the decision making 
process as evidenced in the paperwork, when interviewees were asked what they believed was the 
single most influential factor impacting manifestation determination review, they cited “pressure 
from administrators” (School District Personnel, personal communication, June 27, 2014) As a 
result, the study revealed an overall disconnect between the law as implemented and the law as it was 
intended.  
 In general, decision makers appeared to be in compliance with the procedural requirements 
of the law. Decisions included all individuals required by law: all teams included a special education 
teacher, most included a special education administrator (71.25%), almost all included a general 
education teacher (98.75%), and a few decisions involved school psychologists (7.5%), school social 
workers (5%) or speech pathologists (5%). Most decisions also involved parents (83.75%). In 
compliance with the procedural requirements of the law, in instances where parents were not a part 
of the decision making process, efforts to contact the parents were documented in the paperwork.   

Despite compliance with these procedural requirements, the substance of the decision 
making process is where the intent of the law was lost. Depending on the outcome reached, 
students’ actions and disabilities were either broadly or narrowly construed. These observations can 
be understood best through example.  

Narrow Characterization of Disability 

The first example represents a decision in which the disability or the student’s behavioral 
history was narrowly characterized. The student involved in this incident pushed and threatened 
staff after leaving the classroom without permission. The student had a BIP in place that addressed 
“argumentative behavior towards peers and staff.”  The student reportedly needs redirection in class, 
although he becomes “very disrespectful and very angry” when redirected by staff. The student’s 
father indicated that the student has attended a number of schools and that he did not understand 
why his son behaved the way he did. 

 Decision makers determined that because the student’s Behavioral Intervention Plan 
addressed verbal abuse, not physical aggression, the student’s actions were not a manifestation of his 
disability (“After discussion IEP team and parent have concluded that [Student] has prior incidents 
on file for being verbally aggressive toward staff. His IEP behavioral plan does address his verbal 
abuse to staff and peers but not physical aggression toward staff. As a result the team has concluded 
that this incident was not a manifestation of his disability”). Decision makers deemed verbal abuse 
significantly distinct from physical aggression, although the incident involved both verbal abuse and 
physical aggression, which could arguably both fall under the umbrella of aggression. This decision 
also illustrates the potential role of a student’s behavioral history. The decision making process, as it 



Education Policy Analysis Archives  Vol. 25 No. 50 10 
 

is implemented in this school district, appears to leave very little room for new behavioral 
manifestations of the student’s disability, including behaviors that share similarities to existing 
behavioral patterns.  

Expansive Characterization of Disability 

Unlike the narrowly defined relationship described above, there were decisions in which the 
relationship to the disability was much more expansively examined. A student with a hearing 
impairment was found with alcohol at school. His teacher described him as “struggling with peer 
interaction” and wanting “to be accepted by his peers.” Other relevant information considered 
included the fact that another student asked the student to bring the alcohol to school. The student’s 
disability was described as affecting his “social judgment and in understanding the consequences of 
his action.” As a result, the team determined that the student’s actions were caused by or had a 
direct and substantial relationship to the student’s disability. Specifically, the team reasoned that 
“[Student] is a student with a significant hearing loss. This hearing loss impedes his incidental 
learning. He does not have access to information that is presented orally which has created 
significant lags in social judgment and understanding the consequences of his actions. The IEP team 
determined that these lags impacted his decision to bring and share alcohol to school [sic].” 

Without context, there is no apparent relationship between a hearing impairment and 
alcohol possession. However, this decision demonstrates the importance of making individualized 
determinations. A student’s disability manifests itself in a particular way in a particular set of 
circumstances. For another student with a hearing impairment facing discipline for possession of 
alcohol at school, the reasoning and outcome may have been different. Perhaps if the student had 
not been asked to bring the alcohol to school or if the teacher had not observed the student’s 
struggles with peer interactions, these factual distinctions would have proven outcome 
determinative. As a result, it is important to consider student-specific and incident-specific factors. 
Relatedly, decision makers should not base decisions on an objective understanding of the student’s 
disability category, the misconduct under review or a preconceived idea of the relationship between 
the two.  

Themes 

Based on the paperwork, decision makers considered the nature of the student’s disability, 
the student’s behavioral history, the student’s understanding of the consequences, the student’s 
ability to control his or her behavior, the appropriateness of the student’s response in normal 
circumstances, and the student’s behavior at home or in the community (for further discussion, see 
Lewis, in press). Alternative explanations for student behavior were also provided. Organized by 
theme, Table 2 provides language from the portion of the paperwork that asked decision makers to 
document the relationship between the student’s actions and their disability. This table is a 
reorganized and condensed byproduct of the content analysis table described in stage two of the 
methods section.  

 
 
 
 
 
 
 
 
 



Were the Student’s Actions a Manifestation of the Student’s Disabilit y? 11 
 

Table 2  
Reasoning by Outcome for Manifestation Determination Portion of Paperwork 

NO, not a manifestation YES, a manifestation 

Behavioral History 

 No recent behavioral problems 

 Previous incidents haven’t included 
assault/battery 

 IEP addresses verbal aggression, not 
physical 

 This type of aggressive behavior is atypical 

Behavioral History   

 Aggression/behavioral history/anger 

 Poor judgment /social skills 

 Socially unacceptable choices prior  

 Non-compliant, verbal and physical behavior 

 FBA/BIP address play fighting and aggression 

Control/Understanding 

 Planned to get change in placement 

 Planned/not 
impulsive/calculated/deliberate 

 Knows consequences/fully aware of 
action 

 Can control behavior 

 Had plenty of time to tell teachers 

 Unwilling to accept consequences 

 Threatening others showed higher level 
thinking 

 Student is influenced by desire to make 
friends  

Control/Understanding 

 Impulsivity/lack of control   

 Significant lags in social judgment and 
consequences 

 Prior to incident, showed understanding actions 

 Doesn’t comprehend seriousness of actions 

 Doesn’t think through/know consequences 

 Student can’t control behaviors in unstructured 
environment  

 Student needs to be given time to calm down 

 Student’s behavior is inconsistent 

Relationship to Disability 

 Behavior didn’t have direct and substantial 
relationship   

 Behavior was not caused by and did not 
have a direct or substantial relationship to 
disability 

 Disability had nothing to do with behavior 

 The IEP team decided that incident had 
nothing to do with student’s disability and 
was spontaneous in nature 

 Disability impacts ability to remain on task 
and be focused 

 His disability (CD) does not make him 
impulsive or prone to fighting 

 Student’s disability is in the area of math, 
had two evaluations for additional 
disability categories in 2012 

 Disability does not include a characteristic 
of impulsivity 

 Disability affects ability to remember 
things he has learned and to move at the 
pace of the general education curriculum.  

 Specific learning disability affects his 
retention and learning of academics.  

Relationship to Disability 

 Disability limits alertness/social cues 

 Difficulty maintaining positive 
interactions/relationships with peers and staff 

 Student was overstimulated 

 Student does not possess the age appropriate social 
skills to deal appropriately with conflict, anger or 
frustration 

 Disability limits his alertness which adversely 
affects his educational performance through both 
academic achievement, classroom performance 
and his behavior in school 

 Student has a diagnosis of ADHD which manifests 
itself through aggression, and managing and 
maintaining attention 

 Student’s hearing loss impedes his incidental 
learning. He does not have access to information 
that is presented orally which has created 
significant lags in social judgment and in 
understanding the consequences of his actions. 

 He currently continues to display: an inability to 
develop or maintain satisfactory interpersonal 
relationships and inappropriate affective or 
behavior response to a normal situation 

 Poor decisions result from focus problems  



Education Policy Analysis Archives  Vol. 25 No. 50 12 
 

From Table 2, it is evident that the standard permits arbitrary decision making. For example, 
one team of decision makers stressed that a student did not have recent behavioral problems. This 
team determined that this particular student’s actions were not a manifestation of his or her 
disability. A different team of decision makers described a similar behavioral pattern as inconsistent, 
thereby finding a connection to the student’s disability. It is important to note that many “No” 
decisions summarily dismissed the connection between the student’s misconduct and his or her 
disability. Overall, there are noteworthy similarities between the two outcomes. In many instances, it 
appears as though the team could have reached either outcome. Given the serious implications of 
the MDR process, these findings raise significant policy concerns.   

Discussion 

What Does Relevant Mean?  

The Individuals with Disabilities Education Act makes reference to the term “relevant” on 
several occasions. Of course, consistent with IDEA’s emphasis on individualized determinations, 
what is deemed relevant depends upon the student and the circumstances. As a result, relevant 
members of the IEP team or the consideration of relevant information should vary depending on 
the student. Most importantly, the term “relevant” should serve a meaningful role in the 
implementation of manifestation determination review. According to the U.S. Department of 
Education,  

Section 300.530(e)(1), which tracks section 615(k)(1)(E) of the Act, requires a review 
of all relevant information in the child’s file, including the child’s IEP, any teacher 
observations, and any relevant information provided by the parents. We believe this 
clearly conveys that the list of relevant information in paragraph (e)(1) of the section 
is not exhaustive and may include other relevant information in the child’s file, such 
as the information mentioned by the commenters. It would be impractical to list all 
the possible relevant information that may be in a child’s file and, therefore, it is not 
necessary to further regulate on this matter (U.S. Department of Education, 2006, p. 
46719.) 

 
On the contrary, the findings of the present study demonstrate that the substance of the decision 
making process may benefit from a greater emphasis on the true meaning of the term “relevant.” 
This subsection will analyze aspects of the law that implicate the term “relevant.” 

Relevant members of IEP team. The law requires the manifestation determination review 
process to include a representative of the local educational agency, the parents, and other relevant 
members of the IEP team, as agreed upon by the parents and the district. Fulfilling this requirement, 
decisions in the sample generally included: a district level administrator or a special education 
administrator, who served as the representative of the local educational agency; a special education 
teacher; a general education teacher, and the parents or student.  

Although special education teachers were present in the decisions, other individuals who are 
trained in recognizing disabilities and the effects of those disabilities on student behavior and 
performance (Buck, Polloway, Kirkpatrick, Patton, & Fad, 2000) were noticeably absent from the 
sample. For example, school social workers and school psychologists rarely participated in the 
decision making process, even though they arguably have the most direct training on the issue facing 
the team in an MDR. A plausible explanation for this finding is expediency. However, expediency 
should not be valued at the expense of sound decision making. Another possible explanation is that 
the work load of school psychologists makes participation in MDR difficult. Once again, this is not a 



Were the Student’s Actions a Manifestation of the Student’s Disabilit y? 13 
 

sufficient justification if the decision would more accurately achieve the intent of the law with their 
input. This is not to say that decisions without these individuals lacked sound judgment or that the 
decisions that included these individuals were the most thorough decisions in the sample. In fact, 
decisions involving school social workers and school psychologists were subject to the same 
inadequacies in documentation as other decisions in the sample. Furthermore, to raise a question 
about the absence of social workers and psychologists is not to undermine or minimize the input of 
general education teachers and special education teachers, who undoubtedly bring knowledge and 
expertise to the decision making process. Nonetheless, questions must be raised about the absence 
of school social workers or school psychologists in the sample.  

In addition to including professionals with expertise in teasing out the relationship between 
disabilities and behaviors, it is important to include individuals who have specific knowledge of the 
student whose misconduct is being reviewed. The sample included some decisions in which the 
participating teacher had little knowledge of the student because the teacher was new to the school. 
Moreover, there were instances in which the teacher had little knowledge of the student because the 
student was new to the school or the student had truancy issues. Interviewees confirmed these 
concerns by stating that a meeting was held by the district earlier in the year to address IEP team 
composition. Thus, these situations beg the question of whether there was someone better suited to 
participate in the decision making process. Promoting thoughtful selection of individuals who 
participate in the decision making process will help to ensure that decisions are individualized and 
based on a wealth of information from multiple, relevant sources.  

Relevant information in the student’s file, including IEP. Reviewing the student’s IEP 
helps decision makers understand prior behavioral manifestations of the student’s disability, 
especially if there is a BIP in place. In the event that there is not a BIP in place, a Functional 
Behavioral Assessment must be conducted. However, since neither of these terms are defined in the 
law, it is difficult to ensure that the law is implemented consistently from student to student, district 
to district or state to state. This concern is exacerbated when very little detail is provided in the 
paperwork associated with manifestation determination review. To illustrate, one decision in the 
sample merely stated that a student has a BIP in place, without describing the nature of the student’s 
behavioral concerns or potential triggers. This lack of detail renders an audit of MDRs much more 
difficult if not impossible to complete. Likewise, should the MDR conclusion be challenged through 
administrative or judicial proceedings, the paperwork serves little more than proof that a meeting 
took place, while providing no assistance as to the team’s fidelity to the required process. 
Documentation of the triggers or behavioral patterns ensures full consideration of all information 
necessary to understand the link between the student’s misconduct and his or her disability.  

 A thorough review of the student’s IEP also allows decision makers to determine whether 
the student was properly identified, whether the IEP was appropriate, and whether the IEP was 
implemented with fidelity. Few decisions in the sample discussed prior disabilities or not yet 
identified disabilities. Most of the decisions that included the disability category in the paperwork 
focused on the student’s current eligibility category. This is understandable based on the fact that the 
student’s current eligibility category triggered the procedural protections of manifestation 
determination review. However, the MDR process should include a comprehensive analysis of the 
student’s disability-related needs.  

Teacher observations. Positive descriptions of students appeared in both “Yes” and “No” 
MDR decisions. However, glowing descriptions of students appeared more often in “No” decisions 
than “Yes” decisions. A reason for this disparity may be that the student description is an attempt by 
the teacher to establish a positive behavioral trend, which weakens the relationship between the 
behavior under review and the student’s usual behavior. As a result, the misconduct under review 



Education Policy Analysis Archives  Vol. 25 No. 50 14 
 

appears as an isolated incident, which supports an assertion that the student is able to control his or 
her behavior and knows how to respond appropriately in social settings. However, it is important to 
note that most of the students in the sample had a history of behavioral problems, including 
students who received positive remarks from teachers. Of course, teachers’ positive remarks may 
adequately represent teachers’ positive observations of students. Consistent with interviewees’ 
portrayal of pressure from administrators as the most important factor influencing MDR outcomes, 
teacher observations may also reflect pressure from administrators to create a record that supports a 
“No” outcome.  

Relevant information provided by parents. Parental involvement is an integral 
component of IDEA and manifestation determination review is no exception to this policy choice. 
In the present study, an examination of the 80 sample decisions showed that parents or guardians 
provided meaningful input that allowed decision makers to consider the student’s behavior across 
settings. From the sample, it appears that a lack of behavioral problems at home was a compelling 
piece of evidence to support a “No” decision. Although it is unclear from the paperwork whether 
decision makers in the sample relied upon this type of information to reach a final decision, a lack of 
behavioral problems at home was documented more often in “No” decisions than “Yes” decisions. 
While there may be a strong argument in favor of finding that a student’s actions were not a 
manifestation of his or her disability if the behavior only occurs in one setting, potential 
environmental factors may be present in school that may not be present at home. For example, a 
student may experience greater stress or anxiety at school, which may affect the student’s behavior. 
Furthermore, a trigger may be present at school but not at home. Therefore, careful consideration 
must be given to the reasons underlying differences in behavior across settings as these differences 
do not always indicate that a student can control his or her behavior but chose not to in the 
circumstances under consideration.  
 In some decisions, parents noted whether the student was taking medication at the time of 
the incident. A team of decision makers, in one MDR decision, determined that a student who was 
experiencing a modification in dosage engaged in actions that were deemed a manifestation of his 
disability. Accordingly, if a student has been prescribed medication, in cooperation with the 
professionals who prescribed the medication, decision makers should make an effort to understand 
if the student’s misconduct was the result of improper medication. A recent increase in behavioral 
problems may also indicate a need to adjust the student’s medication if the student was taking 
medication at the time of the incident. If the student recently began taking medication or changed 
medication, this may be an important consideration in MDR. More broadly, the consideration of 
medication raises a larger question about whether a disability can be medicated away such that 
misconduct is not a manifestation of a student’s disability if the student is taking the appropriate 
dosage at the time of the incident. Alternatively, if a student is prescribed medication but refuses to 
take it, are the student’s actions more likely a manifestation of his or her disability? Given these 
important questions, if medication is a consideration in the decision making process, the team 
should include input from individuals who understand the purposes and effects of the medication 
prescribed.  

Other relevant information. Other relevant information mostly concerned students’ 
behavioral and academic histories, although there were some instances in which additional context 
was provided in order to better understand the circumstances. Research demonstrates that students 
with disabilities are disciplined more often than students without disabilities (e.g. Rausch & Skiba, 
2006). As a result, it is not surprising that most students in the sample had a history of behavioral 
infractions. Students in both “Yes” and “No” decision categories shared similar behavioral histories, 
often dating back to prior schools. The presence of similar behavioral histories in both “Yes” and 



Were the Student’s Actions a Manifestation of the Student’s Disabilit y? 15 
 

“No” decisions raises a number of significant questions. What role should a student’s behavioral 
history play in the decision making process? If the student has no behavioral history, should this 
necessarily mean that the student’s actions are not a manifestation of the student’s disability? How 
should behavior be characterized? Using a sample decision wherein decision makers stated that the 
student’s IEP addresses verbal aggression, not physical aggression, how should decision makers 
analyze similarities and differences between past behavioral problems and the misconduct subject to 
manifestation determination review? Unfortunately, an analysis of the 80 records reviewed raises 
these questions, but provides little understanding of how teams considered them while reaching 
their conclusions. 

Furthermore, there were a few decisions in the sample where the students had previously 
identified disabilities for which they were no longer deemed eligible. Similarly, there were students 
who had behavioral goals in the past, but these goals were recently removed. As a result, decision 
makers determined that the students’ actions were not manifestations of the students’ disability. This 
analysis raises a critical question about whether a recent behavioral improvement is an indication 
that the problem is permanently resolved.  

Lastly, if additional individuals participated in the decision, their input was included within 
“other relevant information” section of the paperwork. An outside service provider in a “Yes” 
decision indicated that they were working toward the student spending time with students his own 
age because older teens tended to negatively influence his behavior. Student contributions were not 
often documented, although students attended 33 of the decisions in the sample. When their 
contributions were referenced in the paperwork, they appeared under “Information Provided by 
Parents” and “Other Relevant Information.” When student input was mentioned, the student 
explained his or her version of the story, acknowledged that what he or she did was wrong, or 
expressed a desire to improve his or her behavior. In order to ensure careful and thorough 
consideration of all relevant information, decision makers should include individuals who represent 
a comprehensive understanding of the student’s behavior and disability, including outside service 
providers and the student, when appropriate.  

The Overall Subjective Nature of the Decision Making Process  
 

Beyond consistent themes in reasoning, decision makers relied upon similar factors to reach 
opposite conclusions. Behavioral inconsistencies led to both “Yes” and “No” decisions. Similarly, 
whether the student acted in concert with other students influenced both “Yes” and “No” 
outcomes. Furthermore, a student’s poor decision was understood as a desire to make friends in a 
“No” decision, while social considerations seemed outcome determinative in “Yes” decisions as 
well.  

The subjective and, at times, seemingly arbitrary nature of the decision making process is 
particularly troubling in light of research related to special education identification and student 
discipline across race, ethnicity and gender (e.g. Donovan & Cross, 2002; Harry & Klingner, 2006; 
Skiba, 2006). The demographic data for the sample were as follows: 15% female, 85% male; 87.5 
Black, 7.5% White, 2.5% Hispanic and 1% Asian. To protect district identity, district-wide 
demographic data was not included, yet it is important to note that these percentages are not 
proportionate to the overall student population. Although this study did not conduct extensive 
research on the ways in which the decision making process may have differed for students of color 
versus White students or male students versus female students, the demographic breakdown of the 
sample indicates that these decisions disproportionately affect students of color, particularly Black 
male students.  

Other aspects of IDEA acknowledge that subjectivity can lead to biases in the decision 
making process. For example, states are required to maintain data on disproportionality in 



Education Policy Analysis Archives  Vol. 25 No. 50 16 
 

identification, placement, and discipline (IDEA, 2004). As a part of this requirement, States must 
determine if “significant discrepancies” in long term suspensions and expulsions are occurring 
across race, ethnicity, limited English proficiency status, gender or disability category (IDEA, 2004). 
As this study demonstrates, the manifestation determination review process is particularly vulnerable 
to subjective decision making.  

Although manifestation determination review is susceptible to factors such as pressure from 
administrators and institutional biases, Congress opted for a “common sense manifestation 
determination process” in 2004 (U.S. Department of Education, 2006, p. 46720). The subjective 
nature of manifestation determination review, like other aspects of IDEA warrants a rigorous 
standard that requires school districts to engage in the kind of robust analysis that is necessary to 
protect students from facing disciplinary action for conduct that was a manifestation of their 
disabilities. Unfortunately, the current MDR standard does not require this kind of analytic rigor nor 
does the law include manifestation determination review as a monitoring priority, despite the 
important interest at stake.  

Implications for Policy and Practice 
 
The findings of the present study have implications at the district, state and national level. 

School districts should require additional documentation, conduct audits of their own practices, and 
provide professional development opportunities on the topic of manifestation determination review 
(Lewis, in press). These efforts will help to address some of the inequities that exist in 
implementation. However, the arbitrary nature of the decision making process raises broad policy 
concerns that must be addressed in order to ensure that all students with disabilities, regardless of 
local contextualized factors, receive a free appropriate public education. As such, this article 
specifically focuses on policy recommendations.  

Policy Change 

The findings of this study serve as a call for a modification in the MDR standard. Although 
Congress adopted a new standard in 2004, themes that emerged during data collection reveal that 
elements of the old standard are being used to guide the implementation of the 2004 standard. For 
example, paperwork in the sample discussed the student’s ability to appreciate the consequences of 
his or her own actions. Similarly, decision makers considered whether the student had the ability to 
control his or her behavior under the circumstances. Because Congress removed these aspects of the 
standard when IDEA was amended in 2004, the U.S. Department of Education asserted that it was 
outside the scope of its authority to include this language in the regulations accompanying IDEA 
2004 (U.S. Department of Education, 2006, p. 46719).  Although the 1997 standard may have made 
disciplining students more difficult, it erred on the side of protecting students with disabilities. 
Aspects of the old 1997 standard should be combined with the 2004 standard’s focus on cause or a 
material and substantial relationship. Under this proposed standard, school districts should not have 
difficulty disciplining students with disabilities for actions that are not a manifestation of their 
disability. However, school districts should have difficulty disciplining students with disabilities for 
actions that are a manifestation of their disability.  

The current version of the law swings the pendulum too far in the direction of student 
discipline. Taken as a whole, a new standard should require decision makers to justify each of the 
following statements:  

 
 



Were the Student’s Actions a Manifestation of the Student’s Disabilit y? 17 
 

The student’s disability did not impair the ability of the child to understand the impact 
or consequences of the behavior subject to disciplinary action  

 

The student’s disability did not impair the ability to control the behavior subject to 
disciplinary action 

 

The student’s behavior was not caused by or did not have a direct and substantial 
relationship to the student’s disability  

 

The IEP was implemented with fidelity  

The student’s IEP appropriate   

 
If decision makers fail to justify any of these statements, then the student’s actions are a 
manifestation of his or her disability. This combined standard balances school district concerns with 
the obligation to provide each student a free appropriate public education in the least restrictive 
environment.  

Policy Guidance and Professional Development 

Whether or not a new standard is created, policy guidance is needed to assist school districts 
in understanding how to determine whether a student’s actions are a manifestation of his or her 
disability. This has the potential to inform both policy and practice at the local level. In January 
2014, the U.S. Department of Education and the Department of Justice issued guidance regarding 
discrimination in student discipline. The Dear Colleague Letter on Nondiscrimination in the 
Administration of Student Discipline encourages school districts to engage in critical reflection 
about trends in referrals and disciplinary consequences. The letter emphasized that discrimination 
can be both intentional or it can be facially neutral, with the effect of treating students in a 
discriminatory manner.  

The lessons from the Dear Colleague Letter have important implications for manifestation 
determination review. The letter argues for school district personnel to engage in more than a 
surface level analysis of student discipline. To truly understand discrimination in discipline, school 
districts must understand manifestation determination review as the intermediate step between 
student misconduct and student discipline. Only through a “No” decision is a school district able to 
expel a student with a disability.  

A superficial look at manifestation determination review may demonstrate that school 
districts are acting in compliance with the procedural aspects of the law. The decision making 
process may involve the required decision makers and may include the required sources of 
information. However, the law dictates very little about the depth of analysis that is required. In 
other words, as the present study demonstrates, it is possible to comply with the letter of the law 
without engaging in the kind of analysis that is necessary to comply with the spirit of the law. Of 
course, this study only explored the decision makers’ reasoning as it was documented in the 
paperwork. As a result, it is possible that all decision makers in the study engaged in a detailed 
analysis that was not documented throughout the paperwork. Nonetheless, the law, as it is written, 
permits decision makers to reach arbitrary decisions. With parental agreement or failure to challenge 
decisions and in the absence of federal or state oversight, these decisions will go unchallenged. The 
school district indicated that only one decision was challenged by parents during the year reviewed. 
This dispute was resolved immediately. 

Similar to the 2014 Dear Colleague Letter, state or federal guidance should explain the 
meaning of the standard. When a student struggles with peer interactions and purchases drugs 
because he or she is seeking acceptance, should decision makers find this to be a manifestation of 
the student’s disability under the current legal standard? If the student has a history of behavioral 



Education Policy Analysis Archives  Vol. 25 No. 50 18 
 

problems similar to the incident under review, should this be considered a manifestation of the 
student’s disability? If the student’s behavioral problems are primarily limited to the educational 
setting, should this fact be outcome determinative?  

Guidance should also clarify the meaning of “relevant” as it is used in the law. School 
districts have a great deal of discretion in the implementation of manifestation determination review. 
While it is important for decision makers to have the authority to address local and student-specific 
concerns, it is equally important that the implementation of the law is consistent with IDEA’s 
equity-based underpinnings. To reflect this commitment, relevant individuals should include those 
with knowledge of the student and of behavioral manifestations of disabilities generally. Relevant 
information should include in-depth analysis of the student’s IEP, a student’s academic and 
behavioral history, teacher observations, information provided by parents and any other information 
that helps decision makers understand the relationship between the student’s disability and the 
behavior under review.  

Few of the decisions reviewed in this study made explicit reference to the eligibility criteria 
for relevant disability categories. However, in response to the manifestation determination question, 
decision makers relied upon criteria that are consistent with eligibility criteria. For example, federal 
regulations delineate the criteria for an emotional disturbance as follows:  

a condition exhibiting one or more of the following characteristics over a long period 
of time and to a marked degree that adversely affects a child's educational 
performance: (A) An inability to learn that cannot be explained by intellectual, 
sensory, or health factors. (B) An inability to build or maintain satisfactory 
interpersonal relationships with peers and teachers. (C) Inappropriate types of 
behavior or feelings under normal circumstances. (D) A general pervasive mood of 
unhappiness or depression. (E) A tendency to develop physical symptoms or fears 
associated with personal or school problems. (U.S. Department of Education, 2006 
p. 46756) 

 
Similarly, decisions in the sample considered whether the student was capable of maintaining 
positive relationships with peers. Furthermore, decision makers appeared to be particularly 
concerned about whether the student responded appropriately under the circumstances. However, 
inability to learn, unhappiness and depression, physical symptoms or fears appeared to receive less 
attention by the decision makers in the sample.   
 Another common disability category in the sample was Other Health Impairment (OHI). 
The federal regulations that accompany IDEA (2004) define OHI as follows:  

Other health impairment means having limited strength, vitality, or alertness, 
including a heightened alertness to environmental stimuli, that results in limited 
alertness with respect to the educational environment, that-- 
(i) Is due to chronic or acute health problems such as asthma, attention deficit 
disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart 
condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, sickle 
cell anemia, and Tourette syndrome; and 
(ii) Adversely affects a child's educational performance. (U.S. Department of 
Education, 2006 p. 46757) 

 
Students in the sample who were identified as having an OHI were described as having limited 
strength or alertness. Because OHI covers a number of “chronic or acute health problems,” for the 
purpose of the MDR process, it would be helpful to distinguish between various conditions within 



Were the Student’s Actions a Manifestation of the Student’s Disabilit y? 19 
 

the category of OHI. However, the paperwork did not always indicate the origin of the student’s 
needs. Nonetheless, some students were identified as having Attention Deficit Hyperactivity 
Disorder or Oppositional Defiant Disorder. One student’s limited alertness stemmed from lead 
exposure. Each of these categories within OHI may manifest in different ways in general and for 
specific students. To truly understand the relationship between the student’s disability and 
misconduct, it is important to consider the behavioral manifestations of the specific student in the 
specific circumstances under review.  

Because students with disabilities are deemed eligible for special education according to 
explicit definitions under federal and state law, checklists associated with evaluation and eligibility 
determinations along with other relevant student-specific records and information can provide 
valuable guidance during implementation of manifestation determination review. Some decisions in 
the sample documented observations that gave rise to a special education referral. Furthermore, 
there was evidence that some decision makers considered the behavioral manifestations of the 
disability category in general, which at times used language that mirrored the legal definition. 
Although not explicitly emphasized in the paperwork reviewed, it is important for decision makers 
to review information regarding the student’s referral and eligibility for special education. After all, 
the student’s specific eligibility category is the impetus behind the procedural protection of 
manifestation determination review.  

 

Conclusions 
 
As the preceding analysis demonstrates, the manifestation determination review standard is 

problematic and difficult to implement with meaningful consistency. With the foundational case law 
in mind and with IDEA Reauthorization expected in the future, Congress should strongly consider 
not only the theory of equity underpinning the law, but also the practical obstacles to 
implementation. The findings of this study demonstrate that a change in the law is necessary. A new 
standard should aim to ensure fidelity to the purpose of the law, which is to ensure that students 
with disabilities are not disciplined for actions that are caused by their disabilities. In addition to a 
new standard, school districts need greater guidance that extends beyond the procedural aspects of 
the law and includes emphasis on the substance of the decision making process.  
 

References 
 
Arnberger, K., & Shoop, R. (2006). A principal's guide to manifestation determination. Principal 
  Leadership, 6(9), 16-21. 
Buck, G. H., Polloway, E. A., Kirkpatrick, M. A., Patton, J. R., & Fad, K. M. (2000). Developing  

behavioral intervention plans A sequential approach. Intervention in School and Clinic, 36(1), 3-9. 
https://doi.org/10.1177/105345120003600101.  

Doe v. Koeger, 480 F. Supp, 225 (N.D. Ind. 1979). 
Doe v. Maher 793 F.2d 1470 (9th Cir. 1986). 
Donovan, S., & Gross, G. (Eds.). (2002). Minority students in special and gifted education.Washington, DC: 

National Academy Press. 
Education for All Handicapped Children Act of 1975. 
Goss v. Lopez, 419 U.S. 565 (1975). 
Harry, B., & Klingner, J. (2006). Why are so many minority students in special education? New York:
 Teachers College Press.  
Honig v. Doe, 484 U.S. 305 (1988). 



Education Policy Analysis Archives  Vol. 25 No. 50 20 

 
Honig, M. I. (2006). Complexity and policy implementation: Challenges a nd opportunities 

for the field. In M. I. Honig (Ed), New Directions in Education Policy Implementation: 
Confronting Complexity (pp. 1-24). State University of New York Press, Albany. 

Individuals with Disabilities Education Act Amendments of 1997, 20 U.S.C. 1400 et seq. (1997). 
Individuals with Disabilities Education Act, 20 U.S.C.S. §§ 1400 et seq. (2006). 
Kaelin v. Grubbs, 682 F.2d 595, 6th Cir. (1982).  
Katsiyannis, A., & Maag, J. (2001). Manifestation determination as a golden fleece. Exceptional
 Children, 68(1), 85-96. https://doi.org/10.1177/001440290106800105. 
Lewis, M. M. (in press). Navigating the grey area: A school district's documentation of the
 relationship between disability and misconduct. Teachers College Record.  
Merriam, S. B. (1988). Case study research in education : a qualitative approach. San Francisco: Jossey-Bass. 
Merriam, S. B., & Tisdell, E. J. (2015). Qualitative research: A guide to design and implementation. John  

Wiley & Sons. 
Odden, A. (1991). The evolution of education policy implementation. In A. Odden (Ed.). 

Education Policy Implementation. Albany, NY: State University of New York Press. 
O'Laughlin, L., & Lindle, J. C. (2014). Principals as political agents in the implementation of 

IDEA's least restrictive environment mandate. Educational Policy, 29, 140-161. 
https://doi.org/10.1177/0895904814563207 

Parrish, T. (2002). Racial disparities in the identification, funding, and provision of special
 education. In D. J. Losen & G. Orfield (Eds.), Racial inequality in special education (pp. 15-37).
 Cambridge, MA: Harvard Education Press. 
Rausch, M. K., & Skiba, R. (2006). Discipline, disability and race: Disproportionality in Indiana
 schools. Education Policy Brief, 4(10), 1-8.  
S-1 v Turlington, 635 F.2d 342 (5th Cir. 1982). 
Skiba, R., Simmons, A., Ritter, S., Kohler, K., Henderson, M., & Wu, T. (2006). The context of  

minority disproportionality: Practitioner perspectives on special education referral. Teachers  
College Record, 108, 1424-1459. https://doi.org/10.1111/j.1467-9620.2006.00699.x 

Skiba, R. J., Poloni-Staudinger, L., Gallini, S., Simmons, A. B., Feggins-Azziz, R. (2006).
 Disparate access: The disproportionality of African American students with disabilities
 across educational environments. Exceptional Children, 72, 411-424.  

https://doi.org/10.1177/001440290607200402. 
Stuart v. Nappi, 443 F. Supp. 1235 (D. Conn 1978).  
United States Congress, Senate Report 14816 (2003).  
U.S. Department of Education. (2006, August 14). 34 CFR Parts 300 and 301: Final rule. 

Federal Register, 71, 46,539 et seq. 
U.S. Department of Education. (2014, January 8). Dear Colleague Letter on the Nondiscriminatory 

Administration of School Discipline. Washington, DC: Author. 
Walker, J. D., & Brigham, F. J. (2016). Manifestation determination decisions and students with  
 emotional/behavioral disorders. Journal of Emotional and Behavioral Disorders. 

https://doi.org/10.1177/1063426616628819. 
Yell, M., Rozalski, M. , & Drasgow, E. (2001). Disciplining students with disabilities. Focus on
 Exceptional Children, 33(9), 1-20. 
Young, T., & Lewis, W. D. (2015). Educational policy implementation revisited. Educational Policy,
 29(1), 3-17. https://doi.org/10.1177/0895904815568936 
Zilz, W.A. (2006). Manifestation determination: Rulings of the courts. Education and the Law, 18(2-3), 

193-206. https://doi.org/10.1080/09539960600919928 
Zirkel, P. (2006). Manifestation determinations under the Individuals with Disabilities 

https://doi.org/10.1177/0895904814563207


Were the Student’s Actions a Manifestation of the Student’s Disability?  21 
 

Education Act: What the new causality criteria mean. Journal of Special Education Leadership, 
19(2), 3-12.  

Zirkel, P. (2010). Manifestation determinations under the New Individuals With Disabilities
 Education Act An update. Remedial and Special Education, (5), 378-384.  

https://doi.org/10.1177/0741932509355993. 

 

About the Author 

Maria M. Lewis  
The Pennsylvania State University 
Mml25@psu.edu  
Maria M. Lewis is an assistant professor in the Department of Education Policy Studies and a faculty 
affiliate in the Law School at Pennsylvania State University. Her research is situated at the 
intersection of education law and policy, particularly as it relates to equity and diversity.  
 
 

 

education policy analysis archives 
Volume 25 Number 50       May 22, 2017 ISSN 1068-2341 

 

 Readers are free to copy, display, and distribute this article, as long as the work is 
attributed to the author(s) and Education Policy Analysis Archives, it is distributed for non-
commercial purposes only, and no alteration or transformation is made in the work. More 
details of this Creative Commons license are available at 
http://creativecommons.org/licenses/by-nc-sa/3.0/. All other uses must be approved by the 
author(s) or EPAA. EPAA is published by the Mary Lou Fulton Institute and Graduate School 
of Education at Arizona State University Articles are indexed in CIRC (Clasificación Integrada de 
Revistas Científicas, Spain), DIALNET (Spain), Directory of Open Access Journals, EBSCO 
Education Research Complete, ERIC, Education Full Text (H.W. Wilson), QUALIS A2 (Brazil), 
SCImago Journal Rank; SCOPUS, SOCOLAR (China). 

Please send errata notes to Audrey Amrein-Beardsley at audrey.beardsley@asu.edu   
 

Join EPAA’s Facebook community at https://www.facebook.com/EPAAAAPE and Twitter 
feed @epaa_aape. 

 

mailto:Mml25@psu.edu
http://www.doaj.org/
mailto:audrey.beardsley@asu.edu
https://www.facebook.com/EPAAAAPE


Education Policy Analysis Archives  Vol. 25 No. 50 22 

 

education policy analysis archives 

editorial board  

Lead Editor: Audrey Amrein-Beardsley (Arizona State University) 
Editor Consultor: Gustavo E. Fischman (Arizona State University) 

Associate Editors: David Carlson, Margarita Jimenez-Silva, Eugene Judson, Mirka Koro-Ljungberg, Scott 
Marley, Jeanne M. Powers, Iveta Silova, Maria Teresa Tatto (Arizona State University) 

Cristina Alfaro San Diego State 
University 

Ronald Glass  University of 
California, Santa Cruz 

R. Anthony Rolle University of  
Houston 

Gary Anderson New York  
University  

Jacob P. K. Gross  University of 
Louisville 

A. G. Rud Washington State 
University  

Michael W. Apple University of 
Wisconsin, Madison  

Eric M. Haas WestEd Patricia Sánchez University of 
University of Texas, San Antonio 

Jeff Bale OISE, University of 
Toronto, Canada 

Julian Vasquez Heilig California 
State University, Sacramento 

Janelle Scott  University of 
California, Berkeley  

Aaron Bevanot SUNY Albany Kimberly Kappler Hewitt University 
of North Carolina Greensboro 

Jack Schneider College of the Holy 
Cross 

David C. Berliner  Arizona 
State University  

Aimee Howley  Ohio University  Noah Sobe  Loyola University 

Henry Braun Boston College  Steve Klees  University of Maryland  Nelly P. Stromquist  University of 
Maryland 

Casey Cobb  University of 
Connecticut  

Jaekyung Lee  
SUNY Buffalo  

Benjamin Superfine University of  
Illinois, Chicago 

Arnold Danzig  San Jose State 
University  

Jessica Nina Lester 
Indiana University 

Sherman Dorn 
Arizona State University 

Linda Darling-Hammond  
Stanford University  

Amanda E. Lewis  University of 
Illinois, Chicago      

Adai Tefera Virginia  
Commonwealth University 

Elizabeth H. DeBray University of 
Georgia 

Chad R. Lochmiller Indiana 
University 

Tina Trujillo    University of  
California, Berkeley 

Chad d'Entremont  Rennie Center 
for Education Research & Policy 

Christopher Lubienski  University 
of Illinois, Urbana-Champaign 

Federico R. Waitoller University of 
Illinois, Chicago 

John Diamond University of 
Wisconsin, Madison 

Sarah Lubienski  University of  
Illinois, Urbana-Champaign 

Larisa Warhol  
University of Connecticut 

Matthew Di Carlo Albert Shanker 
Institute 

William J. Mathis University of 
Colorado, Boulder 

John Weathers University of  
Colorado, Colorado Springs 

Michael J. Dumas University of 
California, Berkeley 

Michele S. Moses University of 
Colorado, Boulder 

Kevin Welner University of  
Colorado, Boulder 

Kathy Escamilla  University of 
Colorado, Boulder 

Julianne Moss  Deakin  
University, Australia  

Terrence G. Wiley  Center  
for Applied Linguistics 

Melissa Lynn Freeman Adams 
State College 

Sharon Nichols  University of Texas, 
San Antonio  

John Willinsky   
Stanford University  

Rachael Gabriel 
University of Connecticut 

Eric Parsons University of  
Missouri-Columbia 

Jennifer R. Wolgemuth University of 
South Florida 

Amy Garrett Dikkers University 
of North Carolina, Wilmington 

Susan L. Robertson  Bristol 
University, UK 

Kyo Yamashiro Claremont Graduate 
University 

Gene V Glass  Arizona 
State University  

Gloria M. Rodriguez 
University of California, Davis 

 



Were the Student’s Actions a Manifestation of the Student’s Disability?  23 
 

archivos analíticos de políticas educativas 
consejo editorial 

Editor Consultor: Gustavo E. Fischman (Arizona State University) 
Editores Asociados: Armando Alcántara Santuario (Universidad Nacional Autónoma de México), Jason Beech 

(Universidad de San Andrés), Angelica Buendia (Metropolitan Autonomous University, México), Ezequiel Gomez 
Caride (Pontificia Universidad Católica Argentina), Antonio Luzon (Universidad de Granada), José Luis Ramírez 

(Universidad de Sonora, Mexico) 
 

Claudio Almonacid 
Universidad Metropolitana de 
Ciencias de la Educación, Chile 

Juan Carlos González Faraco 
Universidad de Huelva, España 

Miriam Rodríguez Vargas 
Universidad Autónoma de 
Tamaulipas, México 

Miguel Ángel Arias Ortega 
Universidad Autónoma de la 
Ciudad de México 

María Clemente Linuesa 
Universidad de Salamanca, España 

José Gregorio Rodríguez 
Universidad Nacional de Colombia, 
Colombia 

Xavier Besalú Costa  
Universitat de Girona, España 

Jaume Martínez Bonafé 
 Universitat de València, España 

Mario Rueda Beltrán Instituto de 
Investigaciones sobre la Universidad 
y la Educación, UNAM, México 

Xavier Bonal Sarro Universidad 
Autónoma de Barcelona, España   

 

Alejandro Márquez Jiménez 
Instituto de Investigaciones sobre la 
Universidad y la Educación, UNAM, 
México 

José Luis San Fabián Maroto  
Universidad de Oviedo,  
España 
 

Antonio Bolívar Boitia 
Universidad de Granada, España 

María Guadalupe Olivier Tellez, 
Universidad Pedagógica Nacional, 
México 

Jurjo Torres Santomé, Universidad 
de la Coruña, España 

José Joaquín Brunner Universidad 
Diego Portales, Chile  

Miguel Pereyra Universidad de 
Granada, España 

Yengny Marisol Silva Laya 
Universidad Iberoamericana, México 

Damián Canales Sánchez 
Instituto Nacional para la 
Evaluación de la Educación, México  
 

Mónica Pini Universidad Nacional 
de San Martín, Argentina 

Juan Carlos Tedesco Universidad 
Nacional de San Martín, Argentina 
 

Gabriela de la Cruz Flores 
Universidad Nacional Autónoma de 
México 

Omar Orlando Pulido Chaves 
Instituto para la Investigación 
Educativa y el Desarrollo Pedagógico 
(IDEP) 

Ernesto Treviño Ronzón 
Universidad Veracruzana, México 

Marco Antonio Delgado Fuentes 
Universidad Iberoamericana, 
México 

José Luis Ramírez Romero 
Universidad Autónoma de Sonora, 
México 

Ernesto Treviño Villarreal 
Universidad Diego Portales Santiago, 
Chile 

Inés Dussel, DIE-CINVESTAV, 
México 
 

Paula Razquin Universidad de San 
Andrés, Argentina 

Antoni Verger Planells Universidad 
Autónoma de Barcelona, España 

Pedro Flores Crespo Universidad 
Iberoamericana, México 

José Ignacio Rivas Flores 
Universidad de Málaga, España 

Catalina Wainerman  
Universidad de San Andrés, 
Argentina 

Ana María García de Fanelli  
Centro de Estudios de Estado y 
Sociedad (CEDES) CONICET, 
Argentina 

 Juan Carlos Yáñez Velazco 
Universidad de Colima, México 
 

    

 

 

javascript:openRTWindow('http://epaa.asu.edu/ojs/about/editorialTeamBio/819')
javascript:openRTWindow('http://epaa.asu.edu/ojs/about/editorialTeamBio/820')
javascript:openRTWindow('http://epaa.asu.edu/ojs/about/editorialTeamBio/4276')
javascript:openRTWindow('http://epaa.asu.edu/ojs/about/editorialTeamBio/1609')
javascript:openRTWindow('http://epaa.asu.edu/ojs/about/editorialTeamBio/825')
javascript:openRTWindow('http://epaa.asu.edu/ojs/about/editorialTeamBio/797')
javascript:openRTWindow('http://epaa.asu.edu/ojs/about/editorialTeamBio/555')
javascript:openRTWindow('http://epaa.asu.edu/ojs/about/editorialTeamBio/823')
javascript:openRTWindow('http://epaa.asu.edu/ojs/about/editorialTeamBio/798')
javascript:openRTWindow('http://epaa.asu.edu/ojs/about/editorialTeamBio/814')
javascript:openRTWindow('http://epaa.asu.edu/ojs/about/editorialTeamBio/801')
javascript:openRTWindow('http://epaa.asu.edu/ojs/about/editorialTeamBio/1617')
javascript:openRTWindow('http://epaa.asu.edu/ojs/about/editorialTeamBio/2703')
javascript:openRTWindow('http://epaa.asu.edu/ojs/about/editorialTeamBio/802')
javascript:openRTWindow('http://epaa.asu.edu/ojs/about/editorialTeamBio/816')
javascript:openRTWindow('http://epaa.asu.edu/ojs/about/editorialTeamBio/826')
javascript:openRTWindow('http://epaa.asu.edu/ojs/about/editorialTeamBio/804')
javascript:openRTWindow('http://epaa.asu.edu/ojs/about/editorialTeamBio/3264')


Education Policy Analysis Archives  Vol. 25 No. 50 24 

 

arquivos analíticos de políticas educativas 
conselho editorial 

Editor Consultor:  Gustavo E. Fischman (Arizona State University) 
Editoras Associadas: Geovana Mendonça Lunardi Mendes (Universidade do Estado de Santa Catarina), 

Marcia Pletsch, Sandra Regina Sales (Universidade Federal Rural do Rio de Janeiro) 
 

Almerindo Afonso 

Universidade do Minho  

Portugal 

 

Alexandre Fernandez Vaz  

Universidade Federal de Santa 

Catarina, Brasil 

José Augusto Pacheco 

Universidade do Minho, Portugal 

Rosanna Maria Barros Sá  

Universidade do Algarve 

Portugal 

 

Regina Célia Linhares Hostins 

Universidade do Vale do Itajaí, 

 Brasil 

Jane Paiva 

Universidade do Estado do Rio de 

Janeiro, Brasil 

Maria Helena Bonilla  

Universidade Federal da Bahia  

Brasil 

 

Alfredo Macedo Gomes  

Universidade Federal de Pernambuco 

Brasil 

Paulo Alberto Santos Vieira  

Universidade do Estado de Mato 

Grosso, Brasil 

Rosa Maria Bueno Fischer  

Universidade Federal do Rio Grande 

do Sul, Brasil 

 

Jefferson Mainardes  

Universidade Estadual de Ponta 

Grossa, Brasil 

Fabiany de Cássia Tavares Silva 

Universidade Federal do Mato 

Grosso do Sul, Brasil 

Alice Casimiro Lopes  

Universidade do Estado do Rio de 

Janeiro, Brasil 

Jader Janer Moreira Lopes  

Universidade Federal Fluminense e 

Universidade Federal de Juiz de Fora, 

Brasil 

António Teodoro  

Universidade Lusófona 

Portugal 

Suzana Feldens Schwertner 

Centro Universitário Univates  

Brasil 

 

 Debora Nunes 

 Universidade Federal do Rio Grande 

do Norte, Brasil 

Lílian do Valle 

Universidade do Estado do Rio de 

Janeiro, Brasil 

Flávia Miller Naethe Motta 

Universidade Federal Rural do Rio de 

Janeiro, Brasil 

 

Alda Junqueira Marin 

 Pontifícia Universidade Católica de 

São Paulo, Brasil 

Alfredo Veiga-Neto 

 Universidade Federal do Rio Grande 

do Sul, Brasil 

 Dalila Andrade Oliveira 

Universidade Federal de Minas 

Gerais, Brasil