Adam Wasserman Site


CASE NO. 2023040286


Counsel for Student: Joshua Cruz

Counsel for District: Haley Fagan, Baldassari and Roxanne Khan

Representative for District: Jennifer Smith

ALJ: Rita Defilippis

Date of Decision: May 22, 2023

Significant areas of law: Manifestation determination review


  • Did District fail to conduct an appropriate manifestation determination review meeting by inaccurately determining Student’s conduct was not a manifestation of his disability?


  • Student was thirteen years old and eligible for special education under specific learning disability and other health impairment due to attention deficit hyperactivity disorder.
  • Student was disciplined for shoving a male peer into the girl’s restroom; attempting to pants a peer during class; attempting to physically engage with another student over a video posting; harassing and pushing a peer in violation of a no contact order; taunting another student; making inappropriate comments about a peer; taking a female student’s backpack and attempting to hide it in another classroom; cursing at students in his class; attacking another student based on Student’s belief that the other Student took his Chromebook; and pushing a peer down to the ground in the school hallway.
  • Student was suspended and recommended for expulsion based on this incident for violating two codes of conduct: Education Code section 48900(a)(2), willingly using force on another student, and Education Code 48900(e), committing or attempting to commit a robbery.
  • District convened a manifestation determination review meeting and the District’s members of the team determined that Student’s conduct was not a manifestation of his disability and recommended student for expulsion. The following day, Parent was directed to contact a specific NPS for educational placement for more than 10 days.


  • District failed to conduct an appropriate manifestation determination review meeting by inaccurately determining Student’s conduct was not a manifestation of his disability.


  • New assistant principal was aware of previous assistant principal’s discipline note on earlier behavior incident and the warning regarding “greater consequences.” The new principal testified that Assistant Principals “back each other up” to maintain consistency regarding student discipline.
  • School psychologist was tasked with preparing materials for Student’s manifestation determination review meeting. However, the assistant principal did not provide school psychologist with any percipient witness statements, despite her request. Instead, he orally communicated the incident and provided selective information to the psychologist, including his version of events.
  • Student’s special education testing results and reports establish that Student has had behavior challenges including physical aggression toward peers, disruptive classroom behavior, inattentiveness, impulsivity, peer conflicts, social struggles, and defiance of authority, since kindergarten.
  • School psychologist’s determination report conclusions and her testimony at hearing, differed sharply from her assessment report three months before the behavior incident. Further, she was not aware of conflicting and exculpatory witness statements or of Student’s past discipline history involving physical aggression and she narrowly construed Student’s disability as “impulsivity” even though in her earlier assessments, she found student eligible for special education under other health impairment due to Student exhibiting behaviors similar to, or the same as, students with attention deficit-hyperactivity disorder. It is evident that her opinion was heavily influenced by assistant principal’s opinion.
  • There was no testimony, for example, that Student told others ahead of time that he intended to attack the victim after school or social media posts laying out a plan.
  • The evidence established that Student’s conduct was impulsive and a manifestation of his disability, specifically attention deficit hyperactivity disorder. Further, Student established that District changed Student’s placement for more than 10 days for Student’s violations of its code of conduct.


  • Within two weeks of this order, District shall convene and IEP team meeting to review and modify Student’s behavior intervention plan, and modify it to address Student’s behavior.
  • District is ordered to return Student to his previous School unless District and Parent agree otherwise as part of the modified behavior intervention plan.

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