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BOOK: 23 
MONTH-YEAR: September - 2005
IN RE: In re Benjamin F.B
APPELLANT: Michael B and Jacquelin F.B.
APPELLEE: Des Moines Independent Community School District and Heartland AEA 11
KEYWORDS: Educational placement special education
DETAILS: Appellants sought declaratory relief, the removal of an expulsion from their sons permanent record, and attorney fees. Appellants son was 18 years old and received a diploma from Roosevelt High School in Des Moines.  He attended Central Campus in a specialized program for gifted students.  All witnesses testified that he was an intelligent, gifted young man and maintained a 3.0 or better GPA throughout his high school career.  He was not considered a discipline problem by school officials.
  The facts surrounding this appeal are undisputed. Ben had been seen lighting a cigarette outside the main entrance to the school When asked by the vice-principal to empty his pockets, Ben refused and a physical altercation occurred. A white flask containing alcohol fell from Bens pocket as he ran. The principal found Ben and escorted him to his office where Ben was arrested and charged with four violation of the discipline policy. The principal recommended that Ben be expelled.
  A staffing team concluded that although the possession of cigarettes and alcohol were premediated, the physical altercation was impulsive.  The team determined that Bens disability impaired his ability to control the behavior subject to the disciplinary action and that the misconduct was a direct manifestation of his disability.  They concluded a return to Roosevelt was not in Bens best interest and recommended a transfer to an alternative placement with a behavior intervention plan. 
  Appellees argued that Ben was not an individual with a disability and thereby ineligible for IDEA protections.  Neither Ben nor his parents requested classroom accommodations and none were necessary based on his documented achievement.  The evidence suggested Ben did not require special education and was able to access and progress in the general curriculum. Appellants did not request an IDEA evaluation and procedurally and substantively a valid evaluation was not conducted to determine Bens eligibility for IDEA services.
  Appellants argument that The school district did not have legal authority to override the manifestation determination and subsequently expel Ben without special education services fails since Ben was not eligible for IDEA service or procedural protections for disability-related misconduct.
OUTCOMES: Appellees prevail on all substantive issues of this appeal.