IDEA Complaint Decision 00-060

On October 23, 2000 (letter dated October 20, 2000), a complaint was filed with the Department of Public Instruction by XXXXX against the Cambridge School District. This complaint alleges a violation of special education law regarding the implementation of programs for children with disabilities.

Pursuant to 34 CFR 300.660-662 of the regulations implementing the Individuals with Disabilities Education Act (IDEA) and 115.762(3)(g) and 115.90(1), Wis. Stats., the Department of Public Instruction investigated this complaint. In investigating a complaint, the department reviews a district's compliance with state and federal requirements. In investigating this complaint, department staff interviewed the school principal, special education director, special education teacher, and one of the complainants, and reviewed written statements from the complainants and the district.

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ISSUE #1:

Did the district, during the 1999-2000 and 2000-2001 school years, deny a child with a disability a free appropriate public education (FAPE) by repeatedly suspending him from school?

APPLICABLE STATUTES AND RULES:

Section 115.76, Wisconsin Statutes
Definitions.

In this subchapter:

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(7) "Free appropriate public education" means special education and related services that are provided at public expense and under public supervision and direction, meet the standards of the department, include an appropriate preschool, elementary or secondary school education and are provided in conformity with an individualized education program.

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Section 115.77, Wisconsin Statutes
Local educational agency duties.

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(1m) A local educational agency shall demonstrate to the satisfaction of the division that it does all of the following:

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(b) Makes available a free appropriate public education to children with disabilities as required by this subchapter and applicable state and federal law.

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Section 120.13, Wisconsin Statutes
School board powers.

The school board of a common or union high school district may * * *.
(1) SCHOOL GOVERNMENT RULES; SUSPENSION; EXPULSION. (a) Make rules * * * pertaining to conduct and dress of pupils in order to maintain good decorum and a favorable academic atmosphere * * *
(b) The school district administrator or any principal or teacher designated by the school district administrator also may make rules, with the consent of the school board, and may suspend a pupil for not more than 5 school days or, if a notice of expulsion hearing has been sent under par. (c)4. or (e) 4. or 119.25(2)(c), for not more than a total of 15 consecutive school days for noncompliance with such rules or school board rules, or for knowingly conveying any threat or false information concerning an attempt or alleged attempt being made or to be made to destroy any school property by means of explosives, or for conduct by the pupil while at school or while under the supervision of a school authority which endangers the property, health or safety of others at school or under the supervision of a school authority or endangers the property, health, or safety of any employee or school board member of the school district in which the pupil is enrolled. Prior to any suspension, the pupil shall be advised of the reason for the proposed suspension. The pupil may be suspended if it is determined that the pupil is guilty of noncompliance with such rule, or of the conduct charged, and that the pupil's suspension is reasonably justified. The parent or guardian of a suspended minor pupil shall be given prompt notice of the suspension and the reason for the suspension. The suspended pupil or the pupil's parent or guardian may, within 5 school days following the commencement of the suspension, have a conference with the school district administrator or teacher in the suspended pupil's school. If the school district administrator or his or her designee finds that the pupil was suspended unfairly or unjustly, or that the pupil suffered undue consequences, or penalties as a result of the suspension, reference to the suspension on the pupil's school record shall be expunged. Such finding shall be made within 15 days of the conference. A pupil suspended under this paragraph shall not be denied the opportunity to take any quarterly, semester, or grading period examinations or to complete course work missed during the suspension period, as provided in the attendance policy established under 118.16(4)(a).

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34 CFR 300.121 Free appropriate public education (FAPE).

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(d) FAPE for children suspended or expelled from school.
(1) A public agency need not provide services during periods of removal under 300.520 (a) (1) to a child with a disability who has been removed from his or her current placement for 10 days or less in that school year, if services are not provided to a child without disabilities who has been similarly removed.

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34 CFR 300.520 Authority of school personnel.

(a) School personnel may order--
(1)(i) To the extent removal would be applied to children without disabilities, the removal of a child with a disability from the child's current placement for not more than 10 consecutive days for any violation of school rules, and additional removals of not more than 10 consecutive school days in that same school year for separate incidents of misconduct (as long as those removals do not constitute a change of placement under 300.519(b));

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

Federal Register, Vol. 64. No. 48, 34 CFR 300, Attachment 1--Analysis of Comments and Changes, Free Appropriate Public Education, page12554.

Discussion: Section 612(a)(1)(A) of the Act now makes explicit that FAPE must be available to children with disabilities who are suspended or expelled, in light of the adverse impact a cessation of educational services can have on a child with disabilities ability to achieve in school and to become a self-supporting adult who is contributing to our society. The Act, however, should not be read to always require the provision of services when a child is removed from school for just a few days. School officials need some reasonable degree of flexibility when dealing with children with disabilities who violate school conduct rules, and interrupting a child's participation in education for up to 10 days over the course of a school year, when necessary and appropriate to the circumstances, does not impose an unreasonable limitation on a child with disabilities right to FAPE.

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FINDINGS OF FACT:

The child whose education is the subject of this complaint is a nine-year-old child with a disability who attends an elementary school in the Cambridge School District. During the 1999-2000 and 2000-2001 school years, the district dealt with the student's behaviors by suspending him from school.

During the 1999-2000 school year, the child was suspended for a total of seven and a half days. During the 2000-2001 school year, the child has been suspended for a total six and a half days. No suspension in 1999-2000 or 2000-2001 exceeded 5 consecutive school days.

CONCLUSION:

A school district must provide a free appropriate public education (FAPE) to each child with a disability. In order to provide a child with FAPE, a district must, in part, provide special education and related services consistent with the child's IEP. In addition, the services provided by a district must meet requirements of the statutes and rules enforced by the department, including those related to student suspensions.

State law governs procedures relating to the suspension of students. Under state law, a student may be suspended for up to 5 consecutive school days. Under state and federal special education law, a district may suspend a child with a disability for up to 10 school days in a given school year without taking specific steps outlined in special education law. The IEP team must, however, in the case of a child whose behavior impedes his learning or that of others, consider strategies and supports to address the child's behavior.

During the 1999-2000 school year, the child was suspended for seven and a half days. During the 2000-2001 school year, the child was suspended for six and a half days. No suspension was for more than five consecutive days. The suspensions did not violate state standards related to suspension or state and federal special education law. The district correctly implemented the law related to this issue of the complaint.

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ISSUE #2:

Did the district, during the 1999-2000 and 2000-2001 school years, fail to permit the child to use a room that his IEP provided is to be available to him?

APPLICABLE STATUTES AND RULES:

Section 115.76, Wisconsin Statutes
Definitions.

* * *

(7) "Free appropriate public education" means special education and related services that are provided at public expense and under public supervision and direction, meet the standards of the department, include an appropriate preschool, elementary or secondary school education and are provided in conformity with an individualized education program.

* * *

Section 115.77, Wisconsin Statutes
Local educational agency duties.

* * *

(1m) A local educational agency shall demonstrate to the satisfaction of the division that it does all of the following:

* * *

(b) Makes available a free appropriate public education to children with disabilities as required by this subchapter and applicable state and federal law.

* * *

 

Section 115.787, Wisconsin Statutes
Individualized education programs.

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(2) REQUIRED COMPONENTS. An individualized education program shall include all of the following:

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(c) A statement of the special education and related services and supplementary aids and services to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided for the child

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(f) The projected date for the beginning of the services and modifications described in par. (c) and the anticipated frequency, location and duration of those services and modifications.

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ADMINISTRATIVE & JUDICIAL INTERPRETATIONS:

34 CFR Part 300, Appendix A, Questions 31 and 35

31. Must the public agency ensure that all services specified in a child's IEP are provided?

Yes. The public agency must ensure that all services set forth in the child's IEP are provided, consistent with the child's needs as identified in the IEP.

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35. Must the IEP specify the amount of services or may it simply list the services to be provided?

The amount of services to be provided must be stated in the IEP, so that the level of the agency's commitment of resources will be clear to parents and other IEP team members ( 300.347(a)(6)). The amount of time to be committed to each of the various services to be provided must be (1) appropriate to the specific service, and (2) stated in the IEP in a manner that is clear to all who are involved in both the development and implementation of the IEP.

The amount of a special education or related service to be provided to a child may be stated in the IEP as a range...only if the IEP team determines that stating the amount of services as a range is necessary to meet the unique needs of the child. For example, it would be appropriate for the IEP to specify, based upon the IEP team's determination of the student's unique needs, that particular services are needed only under specific circumstances, such as the occurrence of a seizure or of a particular behavior * * *.

FINDINGS OF FACT:

On April 28, 2000, the IEP team met to review and revise the child's IEP. The child's current IEP states he will receive the following special education services: "Full time special education in special ed. room for AMs and in a segregated uncarpeted room in the PMs. Occasional breaks to go outside or to other controlled environments will be used as needed for comfort but with maximum structure and control, including lunch. (Reg. Ed. environment for recesses, phy. ed., music, and art)." A second option for special education services to be provided to the child is "In the event that child's behavior continues to endanger his safety and severely disrupts the learning environment, his AM placement will change to the segregated environment." Special education services for both the first and second options include the frequency noted as "entire day, daily," and "when behavior exceeds controllability," the location to be "special ed. room and segregated room" and duration noted as "4/28/00-12/8/00." The IEP team determined that the separate room would be used for the child when he needed to cool down or time-out. This room is located across the hall from the Emotional Disturbance (ED) room where the child received the majority of his special education services.

The complainants allege that the child did not have access to the "separate room" because it was locked on two occasions when one of the complainants visited the school. The complainant could not remember the specific circumstances of one of the visits. The complainant recalled that during one of the visits to the school, the special education teacher did not have a key to the segregated room and had to call the principal to open the door. The teacher called the principal on her walkie-talkie and the principal opened the door to show the room to the complainant. The principal stated that when the complainant visited the school, the teacher may not have had a key because the district was arranging to provide her with a key. She also indicated that the janitor and the secretarial staff had keys and were available to open the door. The district maintains that on the day when the complainant alleges the room was locked, district staff readily opened the room. Had the child required access to the room on those days, the district could have provided the services called for in the IEP. The special education teacher was provided a key to the segregated room sometime after the IEP meeting.

CONCLUSION:

A district must provide each child with a disability a free appropriate public education (FAPE). A district meets its obligation to provide FAPE to a child in part by providing special education, related services, and supplementary aids and services in conformity with a proper IEP. The IEP must specify special education, related services, and supplementary aids and services to meet the child's needs.

This child's current IEP dated April 28, 2000, to December 8, 2000, provides that the child will receive services in a special education room and a segregated room. The IEP describes the frequency, location and duration of these services. On one visit to the school, the complainant recalls that the special education teacher did not have a key to the separate room. At that time, the teacher was able to call the principal, the janitor or the secretarial staff to open the door. The district maintains that on the day when the complainant alleges the room was locked, district staff readily opened the room. Had the child required access to the room on those days, the district could have provided the services called for in the IEP. The teacher was issued a key after the April 28, 2000, IEP meeting. The complaint is not substantiated.

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This concludes our investigation of this complaint, and we are closing this complaint investigation. This letter is not intended, and should not be construed, to cover any other issues regarding compliance with the IDEA or Chapter 115, Wisconsin Statutes, which may exist and which are not specifically discussed herein. Under the Wisconsin public records law, 19.31-19.39, Wisconsin Statutes, it may be necessary to release this document and related correspondence and records upon request.

signed MJT/SJP
2/2/01
___________________________________________
Mike J. Thompson, Assistant Superintendent
Division for Learning Support: Equity and Advocacy

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For questions about this information, contact Patricia Williams (608) 267-3720