IDEA Complaint Decision 10-017

On March 9, 2010, the Department of Public Instruction (DPI) received a complaint under state and federal special education law from XXXXX against Milwaukee Public Schools. This is the department’s decision regarding that complaint. The issues related to the 2009-10 school year, are addressed below.

  • Whether the district properly followed special education discipline requirements.
  • Whether the district properly implemented the student’s individualized education program (IEP).

The student was suspended from school November 30, 2009, and December 1-4, 2009, for violating the student code of conduct. On December 3, 2009, a hearing officer from the district determined the alleged incident did occur and designated the student’s conduct a level 4 infraction, the most serious type of infraction. On December 7, 2009 the student’s IEP team met to consider whether the behavior resulting in the student’s suspension was a manifestation of the student’s disability. The IEP team determined the behavior was a manifestation of the student’s disability. At the same meeting the IEP team determined the student’s placement should be changed to a new school building. The IEP team based its placement decision on the basis of the level 4 infraction assigned by the hearing officer, considerations of teacher safety, and the need to have consequences for the student’s behavior. The parent’s request to delay the change in placement by a week to allow her to tour the new school and meet the student’s new teacher was granted. District employees refused to allow the student to return to his regular classroom during the intervening week, instead assigning the student to an alternative classroom. The student’s IEP was not implemented during this time. The IEP team met again on December 14, 2009, to formalize the placement determination. The parent continued to object to the change in placement. The student began attending the new school on December 15, 2009.

Within ten school days of any decision by a district to change the placement of a student with a disability because of a violation of the student code of conduct, the district, the parent, and relevant members of the student’s IEP team must conduct a manifestation determination. When the conduct is determined to be a manifestation of the student’s disability, the IEP team must conduct a functional behavioral assessment, unless one has been previously conducted, and implement a behavioral intervention plan (BIP). If a BIP has already been developed for the student, the BIP must be modified, as necessary, to address the student’s behavior. The student must be returned to the placement from which the student was removed unless the parent and the district agree to change the placement as part of the modification of the behavior intervention plan. In this case, the IEP team determined the behavior was a manifestation of the student’s disability and then proceeded to change the student’s placement without the parent’s agreement. The decision to change the placement was driven by the district’s determination the student had violated the student code of conduct.

The parent does not want the student returned to the original placement. Within 30 days the district must convene an IEP team meeting to consider whether the student’s current placement is appropriate based on the student’s needs, and consider whether additional services are necessary for the period December 7 through December 14, 2009, when the student’s IEP was not implemented. Within 30 days, the district must submit proposed corrective action to ensure the district complies with special education discipline requirements related to the appropriate use of the manifestation determination process and placement following manifestation determinations.

  • Whether the district included a regular education teacher of the child as an IEP team member.

Special education law requires the district to ensure the IEP team for each student with a disability includes the parent of the child; not less than one regular education teacher of the student (if the student is, or may be, participating in the regular education environment); not less than one special education teacher of the student; and a representative of the local education agency (LEA). A member of the IEP team may be excused from attending an IEP team meeting, in whole or in part, if the parent and the district agree, in writing, the attendance of the member is not necessary because the member’s area of the curriculum or related services is not being modified or discussed in the meeting.

The IEP team of December 7, 2009 included a regular education teacher, but not a regular education teacher of the child. The parent did not agree, in writing, to the excusal. A regular education teacher of the child did attend the December 14, 2009, IEP meeting. Within thirty days, the district must submit proposed corrective action to ensure IEP teams include a regular education teacher of the child unless proper excusal procedures have been followed.

  • Whether the district improperly excluded the student from school.

The parent asserts she was frequently asked to remove her child from the school following behavior incidents. The parent estimates she removed her child at the request of district employees between one and two times per week between September, 2009 and November, 2009. The parent is unable to document the specific dates these events occurred. Attendance records provided by the district do not indicate a pattern of absences similar to those described by the parent. The district did not improperly exclude the student from school.

  • Whether the district provided a copy of the student’s IEP to the parent in a timely manner.

The parent asserts she was not provided a copy of the student’s IEP in a timely manner following the December 14, 2009 IEP team meeting. At the request of the parent’s advocate, a copy of the IEP was provided to the parent on March 3, 2010. A copy of the student’s IEP was not provided to the parent in a timely manner. As the parent has now received a copy of the IEP, though late, no further corrective action is required.

All noncompliance identified above must be corrected as soon as possible, but in no case more than one year from the date of this decision. This concludes our review of this complaint.

//signed CST/SJP 5/10/10
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy

Dec/pas

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