IDEA Complaint Decision 99-050

On September 15, 1999 (letter dated September 3, 1999, and phone call with XXXXX on September 15, 1999), a complaint was filed with the Department of Public Instruction by XXXXX against the Milwaukee Public Schools. 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 relevant educational records of the child and written statements provided by the complainant mother and district staff. In addition, department staff interviewed the complainant mother by telephone.

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ISSUE:

Did the district improperly suspend the child during the 1999-2000 school year?

APPLICABLE STATUTES AND RULES:

Section 115.77, Wisconsin Statutes
115.77 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
120.13 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 s. 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, or for conduct while not at school or while not 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 his or her designee who shall be someone other than a principal, 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 suspension was inappropriate, given the nature of the alleged offense, 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 s. 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 s. 300.520(a)(1) to a child with a disability who has been removed from his or her current placement for 10 school 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 300.519 Change of placement for disciplinary removals.

For purposes of removals of a child with a disability from the child's current educational placement under s. 300.520-529, a change of placement occurs if--
(a) The removal is for more than 10 consecutive school days; or
(b) The child is subjected to a series of removals that constitute a pattern because they cumulate to more than 10 school days in a school year, and because of factors such as the length of each removal, the total amount of time the child is removed, and the proximity of the removals to one another.

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 * * *.

ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

34 CFR 300, Answers to Some Commonly Asked Questions About Discipline Under IDEA

4. Do the IDEA regulations mean that a child with a disability cannot be removed from his or her current placement for more than ten school days in a year?

No. School authorities may unilaterally suspend a child with a disability from the child's regular placement for not more than 10 school days at a time for any violation of school rules if nondisabled children would be subjected to removal for the same offense.

FINDINGS OF FACT:

The child whose education is the subject of this complaint is a nine-year-old child who resides in the Milwaukee Public School District and attends a public school in Milwaukee. He receives special education and related services because he needs special education and related services as a result of a hearing impairment and a speech or language impairment.

On September 2, 1999, the child was suspended for three days because he instigated a fight with another student. The child had not previously been suspended from school for any other reason during the 1999-2000 school year.

Every year, MPS school personnel review with students the Parent/Student Handbook on Rights, Responsibilities, and Discipline (the handbook). In addition, a copy of the handbook is mailed to each parent. On page 3 of the Parent/Student Handbook on Rights, Responsibilities, and Discipline, a chart lists examples of conduct that violate the School/Classroom Code of Conduct and the actions that school personnel can take in response to such conduct. The chart lists fighting, and it indicates that school personnel may suspend a child for such conduct. The School/Classroom Code of Conduct applies to children without disabilities, as well as to children with disabilities.

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 the requirements of the statutes and rules enforced by the department, including those state law provisions related to student suspension.

Under state law, a child with a disability may be suspended for up to five days or, for up to ten consecutive days if a notice of expulsion has been sent to the child's parents. Under state and federal special education law, school personnel generally may order removal of a child with a disability from the child's current placement for not more than ten consecutive school days for any violation of school rules, if nondisabled children would be subject to removal for the same offense. Such removals cannot be ordered repeatedly to create a pattern of exclusion. However, in this case the removal totaled only three days during the school year. Special education law does not require analysis of whether a pattern of exclusion exists until removals exceed ten school days in a school year. A district need not provide services to a child with a disability for the first ten school days of disciplinary removal of a school year if services are not provided to nondisabled children during such removals.

Here, the child was suspended for three days for a violation of schools rules; the suspension was consistent with discipline that is applied to children without disabilities. The suspension did not violate state standards related to suspension or special education law. 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, ss. 19.31-19.39, Wisconsin Statutes, it may be necessary to release this document and related correspondence and records upon request.

signed JSP
10/12/99
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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