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IDEA Complaint Decision 10-045

On June 11, 2010, the Department of Public Instruction (DPI) received a complaint under state and federal special education law from XXXXX against Milwaukee Public Schools. This is the department’s decision regarding that complaint. The issue is whether the district, during the 2009-2010 school year, properly followed the required special education disciplinary procedures including the provision of services.

Beginning on the eleventh cumulative school day of removal in a school year, and during subsequent removals, the district must provide services to the extent necessary to enable the student to continue to participate appropriately in the general curriculum, although in another setting, and to progress toward achieving her individualized education program (IEP) goals. If the removal will not result in a change of placement, the decision about the necessary services is made by school personnel, e.g., the school principal or other administrator, in consultation with at least one of the child’s teachers. School personnel determine where the services will be provided. The services may vary depending on the needs of the student and the length of the removal. A change of placement occurs if the removal is for more than ten consecutive days or the child has been subjected to a series of removals that constitute a pattern. If the removal results in a change of placement, the IEP team determines the services and setting.

Within ten school days of any decision by a district to change the placement of a student with a disability because of a violation of the student code of conduct, the district, the parent, and relevant members of the student’s IEP team must conduct a manifestation determination. When the student’s conduct is determined to be a manifestation of the student’s disability, the IEP team must conduct a functional behavioral assessment, unless one has been previously conducted, and implement a behavioral intervention plan (BIP). If a BIP has already been developed for the student, the BIP must be modified, as necessary, to address the student’s behavior. The student must be returned to the placement from which the student was removed unless the parent and the district agree to change the placement as part of the modification of the BIP, or under special circumstances involving weapons, drugs, or serious bodily injury, which do not apply here.

On May 24, 2010, the student was involved in a behavior incident resulting in a five-day suspension. On June 2, the district conducted a central office discipline hearing and determined the district would not proceed with an expulsion hearing. Between November 10, 2009, and June 2, 2010, the student was suspended from school on twenty-seven cumulative days. On December 11, 2009, the student was removed for 11 cumulative days. The district did not provide services at this point, and did not provide services for the subsequent removals.

In the letter of complaint, the parent advocate states the parent is working to have the student moved to a new school. Before the beginning of the 2010-2011 school year, the district must convene an IEP team meeting to consider whether the student’s current placement is appropriate based on the student’s needs, review and revise the BIP if necessary, and consider whether compensatory services are required for the failure to provide services beginning on December 11, 2009, and for all of the subsequent removals. Within 30 days, the district must submit proposed corrective action to ensure the district complies with special education discipline requirements related to the provision of services.

All noncompliance identified above must be corrected as soon as possible, but in no case more than one year from the date of this decision. This concludes our review of this complaint.

//signed CST 8/4/10
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy