IDEA Complaint Decision 99-038

On May 27, 1999 (letter dated May 20, 1999), a complaint was filed with the Department of Public Instruction by XXXXX against the Wausau 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 ss. 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. During this investigation, department staff reviewed written materials provided by the complainant and the district, as well as the child's educational records. In addition, department staff interviewed the parent, elementary school principal, special education teacher, and music teacher.

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ISSUE:

Did the district improperly deny the child participation in the 1999 Spring Concert?

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 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 to do all of the following:

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2. Be involved and progress in the general curriculum in accordance with par. (a) and participate in extracurricular and other nonacademic activities.
3. Be educated and participate with other children with disabilities and nondisabled children in the activities described in this subsection.
(d) An explanation of the extent to which the child will not participate with nondisabled children in regular classes, in the general curriculum and in extracurricular and other nonacademic activities.

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FINDINGS OF FACT:

The child whose education is the subject of this investigation resides in the Wausau School District. He continues to be eligible for special education and related services because of an emotional disturbance (ED). During the 1998-99 school year, he attended the fourth grade at a public elementary school in the Wausau School District.

The child's IEP (in effect from August 31, 1998, through June 8, 1999) contains an explanation of the extent to which the child will not participate with nondisabled peers in regular classes. The IEP provides that he will participate with nondisabled peers in school forest, Little Red School House, and selected science, social studies, and health units. In addition, the IEP provides that the child will participate with nondisabled peers during lunch and recess. The IEP does not explain the extent to which the child will not participate in the general curriculum. The IEP does not explain the criteria by which the district can bar the student's participation in academic and nonacademic activities based on his behavior.

Pursuant to his IEP, the child did not participate in regular education music class. Instead, he learned music in a segregated classroom setting using a modified curriculum.

At the end of the first semester, fourth and fifth grade students participated in the Winter Music Concert. The concert was an academic activity; students demonstrated the skills learned in the regular education music curriculum. Although the child did not participate in the regular education music curriculum, the music teacher and the special education teacher agreed that he should participate in the Winter Music Concert.

On May 20, 1999, fourth and fifth grade students participated in the Spring Music Concert. The concert, like the Winter Music Concert, was an academic activity. Fourth and fifth grade children could participate in the concert if they either participated in the regular education music class or had the social and musical skills to perform.

The child did not participate in the Spring Concert because he did not participate in the regular education music class and because the music teacher and his special education teacher determined he did not have the social and music skills to participate.

CONCLUSION:

A district meets its obligation to provide FAPE to a child with a disability, in part, by providing special education and related services that meet the statutes and rules enforced by the department and are provided in conformity with a proper IEP.

The IEP must explain the extent to which the child will not participate with nondisabled peers in regular classes, in the general curriculum, and in extracurricular and other nonacademic activities. An IEP team may, if appropriate, link consideration of a child's behavior to the determination of the extent to which a child will not participate with nondisabled peers. If appropriate, the IEP can be tailored to permit district staff to meet the unique and changing educational needs of a child with behavioral difficulties. However, the IEP must be sufficiently specific so that all team members understand the language of the IEP and its application.

In this case, the child's IEP provided that he would not participate in the regular education music class. However, the IEP did not explain the extent to which he would not participate in the general curriculum, including the general music curriculum. Further, the IEP did not explain how the child's behavior would impact upon participation with nondisabled peers, such as participation in the Spring Music Concert. There is a violation with regard to the IEP's explanation of the extent to which the child will not participate with nondisabled peers.

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DIRECTIVE:

The Wausau School District shall, within 30 days of receipt of this report, submit to the department a corrective action plan (CAP) to ensure that:

  1. the district convenes an IEP team meeting to determine and document the extent to which the child will not participate with nondisabled peers in regular education classes, in the general curriculum, and in extra-curricular and nonacademic activities; and
  2. the school district provides, in each child's IEP, an explanation of the extent to which the child will not participate with nondisabled peers in regular education classes, in the general curriculum, and in extra-curricular and other nonacademic activities.

The CAP shall include the activities the district will undertake to implement the directives, the personnel responsible for each activity, the date by which each activity will be completed, and the type of documentation that will be submitted to the department as evidence of completion of each activity. If a CAP requires the district to develop one or more products, the district may submit the product(s) as part of the corrective action plan. The CAP will be reviewed and the district will be informed if any revisions are required. The district will implement the CAP after it has been approved by the department.

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This concludes our investigation of this complaint. 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, ss. 19.31-19.39, Wisconsin Statutes, it may be necessary to release this document and related correspondence and records upon request.

signed JSP
9/29/99
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Juanita S. Pawlisch, Ph.D., Assistant Superintendent
Division for Learning Support: Equity and Advocacy

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