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IDEA Complaint Decision 04-015

On April 7, 2004, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Oak Creek-Franklin School District. This is the department's decision regarding that complaint. The issues are whether the district, in developing individualized education programs (IEPs) for a student during the period April 6, 2003, to April 6, 2004, properly considered positive behavioral interventions, strategies, and supports to address behavior which impedes the student's learning or that of others and followed requirements related to removing a child with a disability for more than ten days in a school year.


The student is a resident of Milwaukee and attended school during the 2003-2004 school year in another district pursuant to the Chapter 220 program. In November 2003, the IEP team met to review and develop the student's annual IEP and to determine continuing eligibility for special education. After the November IEP meeting, the student was suspended once in December and twice in February for failure to follow school rules. The student received a one-day suspension for each of these three incidents. On March 1, 2004, the student was suspended for five more days, and some services were made available to the student. When the student returned to school on March 8, 2004, the school determined that he made a threatening remark regarding another student, and as a result the district initiated pre-expulsion proceedings. The district extended the offer of some services. On March 15, 2004, a manifestation hearing was held, and it was determined that the behavior was not related to the student's disability. The student was expelled on March 17, 2004. An IEP team meeting was held on March 23, 2004, and an alternative placement was offered. On April 5, 2004, the parent withdrew the student from the school district and the 220 program, and the student currently attends Milwaukee Public Schools.


If the IEP team determines that the student's behavior is interfering with the student's learning or that of others, the IEP team must consider strategies, including positive interventions and supports to address the behavior. The November 2003 IEP team, which included the parent, did not determine that there were behavioral issues, and the IEP indicates that the student related well to peers. Consequently, the team was not required to consider behavioral support strategies at this time. However, after that November meeting, incidents occurred over a short period of time in March 2004 that ultimately resulted in the student being removed from school for more than 10 days.


When first removing a student for more than 10 days in a school year or whenever a student is subjected to a disciplinary change of placement, the district must ensure that a functional behavioral assessment is conducted if one has not been previously done. As soon as practicable after completing the assessment, the district must also convene an IEP team meeting to develop an appropriate behavioral intervention plan to address the behavior. The district acknowledges that these actions were not taken.


Within 30 days of receiving this decision, the district must submit a corrective action plan to the department to ensure that requirements regarding disciplinary removals totaling more than 10 days in a school year are followed. The district is not directed to take child specific action because the student was withdrawn from the district.


This concludes our review of this complaint.


//signed CST 6/4/04
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy