Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

FINDINGS OF FACT, CONCLUSIONS OF LAW,
AND ORDER

On February 27, 2001, the Department of Public Instruction received a request for a due process hearing pursuant to Wis. Stat., Chapter 115, Subchapter V, and the Individuals with Disabilities Education Act (IDEA) from [Grandfather] and [Grandmother] on behalf of their grandson [Student]. Pursuant to due notice a hearing was held on April 3, 2001, in Madison, Wisconsin, before Mark J. Kaiser, Administrative Law Judge. The parties filed simultaneous post-hearing briefs on April 11, 2001.

The Parties to this proceeding are:

1. [Student] (the Student) is a fourteen year old male who has been diagnosed as "severely depressed" and has been identified as having an Emotional Disturbance. The Student is a "child with disability" within the meaning of the definition of that phrase found at Wis. Stat. § 115.76(5).
2. The Student resides in the Madison Metropolitan School District (the School District) and attends eighth grade at Black Hawk Middle School. The Student has an Individualized Education Program (IEP) for the 2000-2001 school year. The IEP provides for the Student to attend regular education classes with support from a special education teacher. (Ex. 1)
3. The Student’s IEP includes the following description of his behavior:

[Student] often "shuts down" when he is frustrated, angry, upset, disappointed, or sad. He does not act out in an aggressive manner just sits and puts his head down. He does not smile and often stares out into space. He has a difficult time coming out of this depression "shut down." He accomplishes nothing while in one of these states. They have lasted up to 45 minutes this school year. Sometimes crying is part of "shut down." He does not interact with an adult that is trying to intervene, he does not use eye contact, he does not say a thing, he does not even move. His eyes have a glazed, empty look. When he finally comes out of it he is lethargic and tired. He slowly gets back on track. He is not comfortable talking about what he had experienced or why he is so sad.

Prior to October 23, 2000, the Student did not exhibit any aggressive "acting out" behavior at school. Accordingly, his IEP did not include a behavior intervention plan.

4. On October 23, 2000, Martha Olsen, the Student’s case manager was in charge of a resource study hall for special education students. The Student entered the study hall room and pulled out a handheld video game (Game Boy) and began playing. The Student was told to put the Game Boy away. The Student ignored her and she again directed him to put the Game Boy away. The Student responded that he had to finish a level and then he would turn off the Game Boy. The Student subsequently put the Game Boy away.

Ms. Olsen then asked the Student to take out his assignment notebook. The Student put his head down and ignored her. Ms. Olsen asked the Student to take out his assignment notebook two more times and was ignored. Ms. Olsen then told the Student that she assumed that he did not intend to participate in study hall and, if so, he must remain quiet during the study hall.

Later in the study hall, the Student began cutting up a plastic pen. Pieces of the pen were shooting around the room. Ms. Olsen directed the Student to put the pen away and stop making a mess in the room. The Student did not respond and continued cutting up the pen. A piece of plastic hit another student. The other student told the Student to "knock it off" and the Student responded with a profanity. Ms. Olsen then directed the Student to go to the principal’s office. After initially ignoring her, the Student did go to the principal’s office.

In the waiting area of the principal’s office the Student began playing with his Game Boy again. Ms. Olsen repeatedly told him to put the Game Boy away. The Student ignored her and Ms. Olsen finally told the Student that if he did not put the Game Boy away in fifteen seconds she would take it away. The Student continued to play with the Game Boy while Ms. Olsen counted to fifteen. After counting to fifteen, Ms. Olsen went over to the Student and removed the game cartridge from the Game Boy. The Student directed a profanity at Ms. Olsen, stood up and kicked her left front leg and her right shin with his right foot. Ms. Olsen then asked a secretary to call the police.

A police officer came to the school and after investigating the incident escorted the Student from the Black Hawk Middle School and took him home. As a result of the incident, the Student was suspended from school for 4.5 days and adjudged delinquent in a juvenile proceeding.

5. At the request of the Student’s legal guardians an IEP meeting was convened for the Student on December 18, 2000. As a result of the IEP meeting, three changes were made in the Student’s IEP. The changes were the community involvement component of the IEP was dropped, the present level of performance section of the IEP was updated, and the behavioral intervention plan box was no longer checked (in his previous IEP, a box indicating that a behavioral intervention plan existed was erroneously checked). The IEP team discussed the necessity for a behavioral intervention plan for the Student. After the discussion, it was decided that no behavioral intervention plan was necessary; however, a copy of Ms. Olsen’s "Alternative Discipline Plan" for her special education student’s was attached to the Student’s revised IEP (Exh. 2).
6. No further aggressive behavioral incidents have occurred since October 23, 2000; however, the Student has been absent from school an excessive number of days. The large number of absences led the principal of Black Hawk Middle School and Ms. Olsen to issue a memo to the school’s eighth grade staff clarifying the policy for dealing with the Student’s absences (Exh. 4).
7. The manner in which the School District employees, primarily Ms. Olsen, handled the October 23, 2000 incident does not constitute a denial of a free appropriate public education (FAPE) to the Student. The IEP team’s decision to not include a behavioral intervention plan in the Student’s revised IEP does not constitute a denial of FAPE to the Student.

[Grandparents], (the xxxxx), are unhappy that as a result of the October 23, 2000 incident, the Student was removed from Black Hawk Middle School by a police officer and was subsequently adjudged a juvenile delinquent. The [Grandparents] believe that the Student was so traumatized by this incident that he is now afraid to return to school. The [Grandparents] filed a request for a due process hearing; however, it is unclear what remedy they are seeking.

During the prehearing conference conducted in this matter, the [Grandparents] alleged that the School District’s handling of the October 23, 2000, incident constituted a denial of FAPE to the Student and that the School District’s failure to include a behavioral intervention plan in his IEP also constituted a denial of FAPE. With respect to the October 23, 2000, incident, the [Grandparents] argue that the Student’s behavior on that day was a manifestation of his disability and that Ms. Olsen, as a trained special education teacher, could have handled the situation without calling the police. The School District agrees that the Student’s behavior on October 23, 2000, was related to his Emotional Disturbance. However, the Student’s kicking of Ms. Olsen does constitute a crime. Nothing in the IDEA prohibits the School District from referring this matter to the police regardless of whether the Student’s behavior was related to his disability.

The [Grandparents] argument that the School District personnel and primarily Ms. Olsen could have handled the situation differently and in a manner which would not have resulted in calling the police is speculative. The evidence in the record indicates that prior to October 23, 2000, the Student had not acted out aggressively at school. Accordingly, there is no reason that Ms. Olsen should have anticipated that the Student would begin kicking her when she took the Game Boy cartridge away from him. After he kicked her, it was reasonable for the School District to call the police. Ms. Olsen could have handled the situation differently; however, based upon her previous experience with the Student his aggressive behavior on that day was unexpected and her handling of the situation was reasonable.

The [Grandparents] did subsequently ask that the Student’s IEP team be reconvened in order to revise his IEP. Their main concern apparently was that a behavioral intervention plan be included in the IEP in order to prevent a reoccurrence of the incident on October 23, 2000. After discussion, the IEP team did make several revisions in the Student’s IEP but decided that it was not necessary to include a behavioral intervention plan for the Student in his IEP. At the time the [Grandparents] apparently agreed with the decision. Approximately two months later, for some reason that was never expressed during the hearing, the [Grandparents] decided to request a due process hearing and argue that a behavioral intervention plan should be included in the Student’s IEP. Other than the Student’s reluctance to go to school, nothing appears to have changed with respect to the Student since December 18, 2000.

It is unfortunate that as a result of the October 23, 2000, incident the Student is currently reluctant to go to school. However, the evidence in the record is that the October 23, 2000 incident has been the only time that the Student acted out aggressively at school. This one incident does not warrant the inclusion of a behavioral intervention plan in his IEP. The evidence is that the Student typically responds to confrontation or other upsetting events by "shutting down." The Student is being treated by a physician and a psychologist for his depression. It would seem that his IEP may need to include specific strategies to reinforce his treatment for depression; however, the [Grandparents] did not present any recommendations from either the Student’s physician or psychologist regarding any steps the School District should include in the Student’s IEP to complement the his treatment. Based on the evidence in the record, the School District has satisfied its burden of proof that it has provided the Student with FAPE.

1. The Division of Hearings and Appeals has authority to hear due process hearing requests pursuant to Wis. Stats. § 227.43(1m).

2. The Madison Metropolitan School District has not denied [Student] a free appropriate public education pursuant to Individuals with Disabilities Education Act and Chapter 115, Wis. Stat.

3. The Madison Metropolitan School District is the prevailing party in this matter.

IT IS HEREBY ORDERED that the due process hearing request filed by [Grandparents] on behalf of [Student], is DISMISSED.

Dated at Madison, Wisconsin on April 13, 2001.

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.