Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

[Student], through counsel, in correspondence dated June 25, 1999, raises three issues and requests the due process hearing as to the three issues outlined below:

1. the school district inappropriately found that [Student]’s behavior was not a manifestation of his disability when it conducted Manifestation Determinations in December of 1997, and January of 1999;

2. the school district illegally expelled [Student] as the behavior for which he was expelled was a manifestation of his disability, and

3. the school district failed to provide [Student] with a free appropriate public education (FAPE) for the entire 1998-1999 school year due to their failure to provide him with appropriate special education services both prior to and after his expulsion.

Counsel for the district asks for a decision on written motion and response to the Administrative Law Judge’s (ALJ) jurisdiction to proceed as to issues number 1 and 2, namely the manifestation determination and subsequent expulsion of the student. He also asked that issue number 3 be narrowed to "post expulsion services" of the student. The narrowing of the issues are based on the district’s assertion that these issues were untimely. There is no dispute that the student was subject to two manifestation determinations as the result of proposed disciplinary action to be taken by the district for unrelated incidents in December, 1997, and December, 1998. In each case, a manifestation determination was made by the IEP team to determine if the misconduct was related to the student’s disability. Both times it was determined that these incidents were unrelated to the student’s disabilities. The first incident resulted in a revised IEP. The second incident resulted in the student’s expulsion. No appeal under section 120.13(c)(3), Wisconsin Statutes was made. Counsel for the parent raises "post expulsion" IEP services in correspondence to the District on March 8, 1999, and March 16, 1999, but makes no note as to appealing the expulsion. He acknowledges an improvement in services by the District in correspondence dated April 6, 1999, and requests that an independent evaluation be conducted. The District agreed to the evaluation, and one was conducted. The results of the evaluation include four recommendations, one being reconvening the manifestation team and shortening the expulsion.

In correspondence dated June 25, 1999, counsel for the parent raises three issues, two dealing with the manifestation hearings and subsequent expulsion. The third raises the issue of FAPE.

It is clear that the independent hearing officer has the right to determine whether or not a student's misconduct is related to the disability. There is also authority for states to conduct their expulsion/exclusion hearings independently of any due process requests filed by the parent (Letter of Inquiry at 222 IDELR 370). This is done subject to the parent requesting a hearing on the issue. In the instant case, the January 26, 1999, expulsion order was not challenged by the parent until June 25, 1999. This was done after receiving the results of the independent evaluation. Statutes define the appeal procedure that may be taken when an expulsion issue is rendered.

This 60-day time limit is engaged only upon the submission of a letter of appeal sent to the state superintendent. There is no window of time as to when a parent has to raise that challenge.

Federal regulations at 34 CFR, sections 523 to 525 outline the manifest determination and appeal process. These include the right to an expedited hearing. This mandate requires districts to take fast appropriate action when EEN students are the subject to disciplinary actions. Parents too, have a right to participate and challenge these proceedings. Federal regulations, however, were not made to supplant any state law (see letter to Dunlap). In the case, the challenge to the actions was not only subject to regulations but state law as well. This expulsion is now being challenged on the basis that the above named student was expelled for behavior, which was a manifestation of his disability. This request is supported in general by the federal regulations, and specifically by the results of an independent evaluation conducted on behalf of the student in May, 1999. Counsel for the student further extends his challenge, by raising the issue that the 1997 manifest determination was inappropriate as well. That resulted in an agreement as to a revised IEP and placement for the student. These 1997 services were not challenged until June, 1999.

Section 115.80(1) controls the time frame for which an action can be made. It states that an action must be made within one year from the time a local educational agency provides notice of change in a child’s educational plan or placement. Counsel for the district in his response and through his exhibits clearly shows that as to the 1997 manifest determination process, the parent was provided notice and agreed to participate in same. The change required receiving services at an off site location. These changes went unchallenged until a second behavior incident in late 1998 prompted the reconvening of a second manifest determination team. Parents as well as the district have a duty to monitor the services of students subject to IDEA. They can no longer stand by and then challenge educational plans at an indefinite time in the future. Wisconsin Statutes 115.80(1) puts them on notice that these must be timely challenged. Accordingly, issues number 1 and 2 raised by the parents’ counsel in June 25, 1999, correspondence will be narrowed in scope to allow a due process challenge as to the appropriateness of the second manifest determination. This was conducted for the December, 1998, violation and resulted in the school’s expulsion of the student.

As to issue number 3, the adequacy of the educational services, the district maintains that only post expulsion issues should be addressed, labeling anything else as untimely. Wisconsin Statutes differ with that determination. Section 115.80(1) specifically allows a one-year window of time to challenge the adequacy of educational services as well. In this matter, counsel for the parent demonstrates through exhibits his attempts to advocate for his student informally before filing for due process. An independent evaluation was conducted for guidance. In June 25, 1999, correspondence, he again asserts the inadequacy of the educational services for the student for the past year as to pre-expulsion and post-expulsion matters. This is based on considering the expulsion action as independent of the special education matter (except for the nexus that must be made pursuant to a manifest determination hearing). The issue of FAPE for the past year is clearing an appropriate issue. The IEE addressed both pre and post expulsion issues.

Counsel for the parent also request that the ALJ "seriously consider" ethical actions against counsel for the district because of a "purposeful deception" in discussing correspondence from parent counsel to the district. What is clear from parents counsel exhibits is that clarification as to the adequacy of educational services was finally made to the district in subsequent correspondence, it is also clear that the attorney for the district first intervened on behalf of the district in June,1999. It is not clear whether he was given the complete exchange of correspondence between district and counsel for the parent. If counsel for the parent feels differently, he may so initiate proceedings himself. It does not, however, affect or limit his challenge on issue number 3.

Based upon the opinion above, it is hereby order[ed] that issues number 1 and 2 be narrowed to include manifestation determinations and actions that were a result of the second manifestation hearing and subsequent expulsion. 1997 determinations are considered untimely. Issue number 3 will proceed to a due process hearing as to the adequacy of educational services for the entire 1998-1999 school year.

IT IS HEREBY ORDERED That:

1. Issues number one and two of parents’ letter for due process hearing be narrowed in scope to only include the second manifest[ation] determination and subsequent expulsion of the student.

2. Issue number three will be decided in a subsequent decision and order. They will include educational services for the entire 1998-99 school year.

Dated at Madison, Wisconsin, this 9th day of August ,1999.