IDEA Complaint Decision 10-038

On May 24, 2010, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Milwaukee Public Schools. This is the department’s decision regarding that complaint. The issue is whether the district, during the 2009-2010 school year, properly followed special education discipline requirements.

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 individualized education program (IEP) team must conduct a manifestation determination. When the student’s 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, or under special circumstances involving weapons, drugs, or serious bodily injury, which do not apply here.

On December 16, 2009, the district conducted a central office discipline hearing followed by an IEP team meeting to conduct a manifestation determination, functional behavioral assessment, develop a behavior intervention plan, and determine placement. The IEP team determined the student’s 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 due to the district’s central office discipline hearing determination the student had violated the student code of conduct. The IEP team stated on the determination and notice of placement, “Due to a central office hearing, (student’s name) has been moved to (name of school).” The district acknowledges it did not comply with special education discipline requirements related to the appropriate use of manifestation determination process and placement following manifestation determinations.

Beginning on the 11th cumulative school day of removal in a school year, and during subsequent removals, the district must provide services to the extent necessary to enable the student to continue to participate appropriately in the general curriculum, although in another setting, and appropriately advance toward achieving his IEP goals. If the removal will not result in a change of placement, the decision about the necessary services is made by school personnel, e.g. the school principal or other administrator in consultation with at least one of the child’s teachers. School personnel determine where the services will be provided. The services may vary depending on the needs of the student and the length of the removal. If the removal results in a change of placement, the IEP team determines the services and setting.

On January 5, 2010, the student began his new placement. Between January 5 and May 24 the student was suspended from school on twenty days. The district acknowledges it did not comply with special education discipline requirements related to the provision of educational services on days of removal beginning on the 11th cumulative school day of removal in a school year, and during subsequent removals.

The district will convene an IEP team meeting to consider whether the student’s current placement is appropriate based on the student’s needs, and consider whether compensatory services are necessary. Within 30 days, the district must submit to the department a copy of the IEP documenting the team’s decision regarding the student’s placement and decision on the need for compensatory services. The corrective action plan, developed to address the directives for complaint number 10-017, to ensure the district complies with special education discipline requirements related to manifestation determination regulations will also apply to this complaint. In addition the district will conduct a review at the student’s school to ensure special education discipline requirements are properly followed including the requirements related to the provision of educational services on days of removal beginning on the 11th cumulative school day of removal in a school year, and during subsequent removals. By December 20, 2010, and April 1, 2011, the district must provide the department documentation of the results of the review.

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 7/7/10
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy

Dec/jfd

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