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State Of Wisconsin DIVISION OF HEARINGS AND APPEALS
FINAL DECISION AND ORDER The PARTIES to this proceeding are: [address] Milwaukee Public Schools, by Office of City Attorney 200 E. Wells St., Room 800 Milwaukee, WI 53202 BACKGROUND On June 6, 2000, the Department of Public Instruction received a request for a due process hearing under Subchapter V, Chapter 115, Wis. Stats., and the federal Individuals with Disabilities Education Act (IDEA), from the attorney for [Parent] (the "Parent"), parent of [Student] (the "Student"). The parties have resolved all issues raised in the hearing request except one. The Parent seeks to compel Milwaukee Public Schools ("MPS") to conduct a "manifestation determination" in connection with a five-day suspension of the Student in May 2000. The parties have stipulated to the salient facts and have submitted briefs on the issue. The requested relief is denied. FINDINGS OF FACT
CONCLUSION OF LAW MPS was not required to conduct a manifestation determination under state or federal law. DISCUSSION The Parent contends that the IDEA requires that a manifestation determination be conducted for any suspension of a child with a disability regardless of its duration. This argument is grounded in the text of the 20 U.S.C. § 1415(k). Section 1415(k)(4)(A) requires that a manifestation determination be conducted "[i]f a disciplinary action is contemplated as described in paragraph (1)". One of the disciplinary actions so "described in paragraph (1)" is "suspension, for not more than ten days". 20 U.S.C. § 1415(k)(1)(A)(i). The Parent contends that the plain language of the statute thus requires a manifestation determination for a suspension of ten days or less. Section 1415(k)(4)(A) provides in part as follows: (4) MANIFESTATION DETERMINATION REVIEW- (A) IN GENERAL- If a disciplinary action is contemplated as described in paragraph (1) or paragraph (2) for a behavior of a child with a disability described in either of those paragraphs, or if a disciplinary action involving a change of placement for more than 10 days is contemplated for a child with a disability who has engaged in other behavior that violated any rule or code of conduct of the local educational agency that applies to all children-- * * * * (ii) immediately, if possible, but in no case later than 10 school days after the date on which the decision to take that action is made, a review shall be conducted of the relationship between the child's disability and the behavior subject to the disciplinary action. The Parent's argument has some support in the statute's text. The federal regulations implementing § 1415(k), however, decidedly reject this interpretation. The regulations require a manifestation determination only if a school is implementing a removal that constitutes a "change of placement". 34 C.F.R. § 300.523(a)(2). The regulations define "change of placement" to be a removal for more than ten consecutive school days, or a shorter removal that is part of a pattern of removals totaling more than ten cumulative days. 34 C.F.R. § 300.519. Here, the Student was suspended during the 1999-2000 school year for considerably fewer than ten days. Accordingly, no "change of placement" as defined in § 300.519 occurred, so no manifestation determination was required under § 300.523(a)(2). The U. S. Department of Education's (DOE) published analysis of the public comments it received on the then-proposed regulations notes that some commenters shared the Parent's interpretation of 20 U.S.C. § 1415(k): Some commenters believed that … the proposed regulations … exceed statutory authority by permitting school authorities to remove a child with disabilities from the child’s current educational placement for up to 10 school days in a school year before the behavior assessment plan, services, or manifestation determination must be done. 64 Fed.Reg. 12618. DOE explained its rejection of this interpretation as follows: In light of the Department’s longstanding position that children with disabilities could be removed from their current educational placement for not more than 10 consecutive school days without educational services, the 10 day in a school year window before the educational services and behavioral assessment plan are triggered is a reasonable interpretation of the statute. This interpretation gives school officials reasonable flexibility for dealing with minor infractions of school rules by children with disabilities, yet ensures that children with disabilities are not cut off from educational services and that their behavior is appropriately addressed. * * * * Requiring a manifestation determination for removals for less than 10 consecutive school days that are not a change of placement under § 300.519, would be of limited utility and would impose unnecessary burdens on public agencies as the determination often would be made after a period of removal was over. Furthermore, limiting manifestation determination to removals that constitute a change of placement under § 300.519 is consistent with the statutory language of [20 U.S.C. § 1415(k)(4)(A)]. 64 Fed.Reg. 12618 and 12624. The federal regulations are binding on the Wisconsin Department of Public Instruction and on MPS. 34 C.F.R. § 300.2(b)(1). Although the regulations did not prohibit MPS from conducting a manifestation determination on its five-day suspension of the Student, they most definitely did not require it. Thus, MPS did not violate federal or state law by not conducting a manifestation determination, and there is accordingly no basis to direct MPS to perform one. ORDER The request that MPS be required to conduct a manifestation determination is denied. Dated at Milwaukee, Wisconsin on August 31, 2000. STATE OF WISCONSIN
NOTICE OF APPEAL RIGHTS APPEAL TO COURT: Within 45 days after the decision of the administrative law judge has been issued, either party may appeal the decision to the circuit court for the county in which the child resides under §115.80(7), Wis. Stats., or to federal district court pursuant to U.S.C. §1415 and 34 C.F.R. §300.512. |