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IDEA Complaint Decision 04-035

On August 23, 2004, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX and XXXXX against the Almond-Bancroft School District. This is the department's decision regarding that complaint. The issue is whether the district properly expelled a student in May 2004 when it had knowledge before the expulsion that the student is a child with a disability.

In August 2002, an IEP team determined that the student has the impairment of emotional behavioral disability (EBD), but that the student does not have a need for special education. The 2002 evaluation report indicates that the student's functioning adversely affects social relationships and classroom adjustment. The report and assessment materials indicate that modifications, including development of behavior plans, had been tried in the past in regular education; that these modifications resulted in limited success; that a behavior plan developed the previous January had not been fully implemented; and that a new intervention recently had been initiated. At the time of the evaluation, the student was making satisfactory academic progress. Evaluation materials indicate that the student also was receiving services from another agency to address behavioral needs. The report concludes that the student's educational needs could be met in regular education with reasonable accommodations.

In May 2004, the district board expelled the student for behavior which it concluded endangered the property, health or safety of others and for repeatedly refusing or neglecting to obey school rules. The expulsion was based in part on repeated behaviors during the entire school year which were against school rules, including 23 disciplinary referrals based on several kinds of behavior including harassment and physical aggression toward other students. The student was disciplined for these incidents through in-school suspensions, detentions and out-of-school suspensions totaling 17 days. The number and kinds of behavioral incidents and the amount and extent of disciplinary measures during the 2003-2004 school year indicate that modifications in regular education were not addressing the student's needs related to the student's EBD impairment. During the entire 2003-2004 school year the student was under court supervision. Following the expulsion the district provided the student with academic work, enabling the student to complete one subject last spring; the district continues to make instruction available.

In March 2004, the student's parent and a county social worker met with district administration and staff to discuss the student's educational needs. The parent brought with her a letter indicating that she wanted her son to be evaluated again to determine eligibility for special education and related services. She did not present the letter to district staff. Instead, during the meeting the parent and social worker stated their belief that the student is a child with a disability and the district should evaluate him again. However, they also said that the student was not having behavioral problems at home or in the community. District staff indicated that in order to be determined a child with an emotional behavioral disability, a student must evidence behavior problems in the home or community as well as in school and since he was not, he would not be determined to be a student with a disability. This discussion convinced the parent not to give her letter to the district or request an evaluation. The parent believes that district staff discouraged her from submitting a referral.

A district must identify, locate, and evaluate all children with disabilities who are in need of special education and related services and make available a free appropriate public education to each student with a disability. The department concludes that the circumstances in this complaint required a referral to determine whether the student is a child with a disability. The district already determined that it will conduct another evaluation of the student and has provided the parent with notice of its decision. If the IEP team determines the student is a child with a disability, the district must afford the student the protections under the discipline provisions of federal special education law. The district must provide the department with documentation for these actions within 30 days of receiving this decision. The department will work with the district to ensure requirements are carried out.

This concludes our review of this complaint.

//signed CST 10/19/04
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy