IDEA Complaint Decision 99-051

On September 17, 1999 (letter dated September 15, 1999), a complaint was filed with the Department of Public Instruction by XXXXX against the Madison Metropolitan 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 relevant educational records for the child and written statements from the complainant and district staff. In addition, department staff interviewed, by telephone, the complainant, the child, and the Educational Resource Officer (ERO).

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ISSUE:

Did the district fail to provide services consistent with the youth's behavior plan on September 15, 1999?

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 * * *.

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(3) DEVELOPMENT. * * *
(b) The individualized education program team shall do all of the following:
1. In the case of a child whose behavior impedes his or her learning or that of others consider, when appropriate, strategies, including positive behavioral interventions, and supports to address that behavior.

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34 CFR 300.529 Referral to and action by law enforcement and judicial authorities.

(a) Nothing in this part * * * prevents[s] State law enforcement and judicial authorities from exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with a disability.

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FINDINGS OF FACT:

The child whose education is the subject of this investigation resides in the Madison Metropolitan Public School District. He attends public school in Madison, and he receives special education and related services as a child with a learning disability.

The relevant portions of the behavior intervention plan in effect on the date of the allegations states:

Alternative physical space and the use of alternative physical intervention will not be used with [the child] to manage disruptive behavior other than that which clearly endangers others¿. If [the child] needs to walk briskly to relieve acute stress, an identified adult will keep [the child] in sight, not block him, not touch him, nor threaten nor intimidate him, nor yell nor chase him.

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The role and responsibilities of an Educational Resource Officer (ERO) are a hybrid between district staff and police officer. EROs are Madison police officers who report to a commanding officer on the police force and serve as police liaisons to the school district. They are assigned, full-time, to a particular school. They work closely with the principal of the school in determining how to carry out their mission of education, prevention, and law enforcement. The school district pays the City of Madison 75% of their employment cost. In IDEA Complaint Decision 99-031, the department determined that such an ERO was required to follow the provisions in a child's IEP.

On September 15, 1999, the ERO saw the child leave the building. When the child pushed open the door, the ERO heard glass shatter. He suspected that the child may have broken a window, and he was responsible for investigating a possible commission of a crime. He pursued the child down and across the street; he stopped the child and asked him some questions.

CONCLUSION:

A district must provide each child with a disability a free appropriate public education (FAPE). A district meets its obligation to provide a FAPE to a child in part by providing special education and related services in conformity with a proper IEP. The IEP must specify special education and related services to meet the child's needs. All district staff, including police officer liaisons who assist school officials with the management of children in a public school, are required to provide the special education and related services, including behavior management, specified in each child's IEP.

While special education law provides procedural safeguards and substantive rights to children with disabilities, these protections do not prevent school officials, law enforcement and judicial authorities from maintaining a learning environment and community that is safe. An individual child's IEP cannot prevent state law enforcement authorities from exercising their responsibilities with regard to the application of federal and state law to crimes committed by a child with a disability.

On September 15, 1999, the ERO did not follow the child's IEP when he pursued the child and stopped him to ask questions regarding the broken window. However, the ERO was investigating the possible commission of a crime; he needed to interview the child as a possible witness or suspect. Special education law specifically provides that law enforcement authorities are authorized to carry out their responsibilities with regard to crimes committed by a child with a disability. There is no violation.

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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
11/8/99
__________________________________________
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