Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

The Parties to this proceeding are:

There is only one issue in this case. The issue is whether or not the Mount Horeb School District (District) the authority under IDEA to place [Student] (Student) in a 45-day interim alternative educational setting (IAES). This issue rests on whether or not the Student was in possession of a controlled substance, Dexedrine, in the Mount Horeb Middle School on or about January 30, 2002. If the Student was not in possession of Dexedrine, then there would have been no authority for the placement in the IAES and the Student has requested compensatory education for this placement.

1. [Student] (Student) is 13-years-old and is an 8th grade student at the Mount Horeb Middle School in the District. He has been identified as a child with a disability. His disability is emotionally disabled.

2. On January 30 or 31, 2002, the Student was in possession of some pills in the school during school hours. The Student did not bring these pills to school, they were brought to school by another student, [Student2] and delivered to the Student and another student, [Student3].

3. I find by a preponderance of the evidence that the Student possessed Dexedrine on January 30 or 31, 2002. [Student2] testified credibly that he was asked by a 14-year-old student, [Student3], and the Student to bring drugs to them from home. Specifically, [Student3] told him to bring Paxil and Dexedrine. The Paxil and Dexedrine are [Student2]'s prescription medications. [Student2] takes Dexedrine for attention deficit hyperactivity disorder (ADHD). [Student2] brought three types of pills from home: Paxil, Dexedrine and arthritis pain medication, Diclosenac. The Diclosenac is his mother's arthritis medication. He had about 7 pills that he divided and gave 3 or 4 pills each to [Student3] and the Student. He was reasonably certain that he gave both [Student3] and the Student an assortment of all three types of pills. He observed the Student swallow the pills and drink water at a drinking fountain.

4. The testimony of [Student3] and the Student was not as credible as [Student2]'s testimony. Both [Student3] and the Student testified that they requested pills from [Student2] and that they received Paxil and pain medication from him but denied that either of them ever received any Dexedrine. They both testified that they did not swallow any pills, but just pretended to swallow them and spit them out when no one was looking. The Student also testified that he had no idea what Dexedrine looked like.

5. The assistant principal of the Mount Horeb Middle School investigated this incident. He interviewed [Student2] on February 1, 2002. [Student2] told him that he had given all three types of pills, Paxil, Diclosenac and Dexedrine, to [Student3] and the Student. [Student2] also told him that he had discussed what types of drugs he was taking for his ADHD with [Student3] and the Student.

6. As a result of this possession of pills, the Student was suspended from school for 2 weeks.

7. A meeting was held on February 4, 2002 with the Middle School administrators. At that meeting, a decision was made that if this incident was found to be a manifestation of his disability, the District would place the Student in a 45-day IAES because of his possession of the controlled substance, Dexedrine.

8. The Student's Individualized Education Plan (IEP) team held a manifestation determination on February 14, 2002. The IEP team determined that the possession of the pills by the Student was a manifestation of his disability. Because of this determination, the District did not expel the Student.

9. After the manifestation determination, the District placed the Student in a 45-day IAES because the District had determined that one type of pill possessed by the Student on January 30 or 31, 2002 was Dexedrine. The placement began on February 15, 2002 and was completed on April 1, 2002.

10. Dexedrine is a "controlled substance" identified under schedules I, II, III, IV or V in section 202(c) of the Controlled Substances Act (21 U.S.C. §812(c)).

The Division of Hearings and Appeals has jurisdiction over the decision of the District to place the Student in an IAES. Placement of the Student in a 45-day IAES is a change of placement under 34 C.F.R. §300.519(a) because it is a change in the educational placement for more than 10 consecutive school days. The Division of Hearings and Appeals has jurisdiction to hear requests to challenge the District's decision to change a student's educational placement under Wis. Stat. §115.80(1) when a parent has requests a due process hearing within a year of the decision of the District to change the student's placement.

1. The Mount Horeb School District is the prevailing party.

2. The Mount Horeb School District did not deny the Student a free and appropriate public education because they had the legal authority to place the Student in a 45-day interim alternative educational setting under the Individuals With Disabilities Education Act, 20 U.S.C. §1415(k)(A)(1)(ii) because the Student was in possession of a controlled substance while at school.

3. The request for compensatory education for the Student is denied.

IT IS HEREBY ORDERED that the due process request be dismissed with prejudice.

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.