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IDEA Complaint Decision 09-070

On October 1, 2009, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Milwaukee Public Schools. This is the department’s decision regarding that complaint. The issue is whether the district, on September 10, 2009, properly conducted a manifestation determination.

On August 11, 2009, during the student’s summer vacation, the student engaged in behavior at a district school that was in session, which resulted in disciplinary measures. On September 10, the district decided to make a disciplinary change of placement and proceed with expulsion proceedings. On that same date, an individualized education program (IEP) team meeting was held to conduct a manifestation determination. The student, the student’s mother, a student advocate, the student’s special education teacher, and a local education agency (LEA) representative attended the IEP meeting.

A manifestation determination is required within 10 school days of any decision to change the placement of a child with a disability because of a violation of a code of student conduct. In determining whether the conduct was a manifestation of the student’s disability, the LEA, the parent, and relevant member of the student’s IEP team (as determined by the parent and the LEA) must review all relevant information in the student’s file, including the child’s IEP, any teacher observations, and any relevant information provided by the parents.

During the September 10 IEP team meeting, district staff members, in reviewing the student’s file, IEP, and other information, determined the conduct was not a manifestation of the student’s disability. The parent and the advocate disagreed. The student’s parent requested the IEP team call the student’s doctor for more information regarding the relationship between the student’s behavior and the student’s disability. Her request was denied. The student’s parent then asked for more time to obtain information from the doctor and reconvene the manifestation determination IEP team meeting. This request was also denied. In a manifestation determination, relevant information provided by the parents must be considered, and the parent must be given an opportunity to present this information consistent with the 10 school day timeline for conducting the manifestation determination. This opportunity should have been provided to the parent by either calling the doctor or by reconvening the IEP team meeting within the 10 school day timeline.

During the September 10 IEP team meeting, the LEA representative informed the parent’s advocate that her vote did not count. All IEP team participants are equal participants on the IEP team. IEP team decisions are made through a process of consensus decision making with involvement of all IEP team participants. If consensus cannot be reached, the LEA must make required decisions, and the parent may challenge those decisions through due process procedures. IEP team participants include, at the discretion of the parent or the LEA, other individuals who have knowledge or special expertise about the student. The parent invited the advocate and determined the advocate had knowledge about the student. During a phone interview with Department staff, the LEA representative acknowledged his error regarding IEP team consensus decision-making and equal participation of all IEP team members.

The district must reconvene the manifestation determination within 10 school days from the date of this decision to allow for consideration of information provided by parent. Within 30 days from the date of this decision, the school district must submit a district-wide corrective action plan to ensure parent information is considered during manifestation determinations and all IEP team members are considered equal participants on the IEP team.

This concludes our review of this complaint.

//signed CST 11/12/09
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy