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IDEA Complaint Decision 15-019

On March 27, 2015, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX against the South Milwaukee School District. This is the department’s decision regarding that complaint. The issue is whether the district, during the 2014-15 school year, properly followed special education disciplinary requirements.

The student is a student with a disability and receives special education services. Under special education disciplinary requirements, when a student with a disability is removed for more than 10 cumulative school days during the course of a school year, the district must provide services to the extent necessary to enable the student to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the student’s individualized education program (IEP). If the district decides to change the student’s placement because of a violation of a code of student conduct, the school district must conduct a manifestation determination within 10 school days from the date of that decision.

In February 2015, the student was suspended for three days following an incident occurring at school. District staff members conducted a meeting with the parent and student to discuss the incident because an expulsion was being considered. At the meeting, school staff reviewed with the parent and the student an agreement referred to as a “last chance agreement.” The intent of the agreement was to stress the seriousness of the incident and review school district behavioral expectations. The agreement also provided for certain conditions such as the student relinquishing his cell phone at the beginning of each school day. The parent and student signed the agreement, and the district agreed not to move forward with an expulsion. The student’s special education placement was not changed and therefore a manifestation determination was not required.

The agreement states that “if at any time prior to the expiration of the agreement the student fails to comply with any terms of the agreement, the parties expressly agree that the District may immediately suspend and commence expulsion proceedings.” Interviews with district staff confirmed that this language does not suggest that by signing this agreement, the parent and student waived the right to a manifestation determination. The right to a manifestation determination cannot be waived. Whenever there is a decision to change a student’s special education placement for disciplinary reasons, the school district must conduct a manifestation determination to determine whether the behavior was a result of the student’s disability.

During the 2014-15 school year, the student received 11 cumulative days of suspension, and the school district provided services on the 11th day as required. The district properly followed special education disciplinary requirements. 

This concludes our review of this complaint. 

//signed CST 5/22/2015
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support