On May 23, 2019, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (complainant) against the XXXXX (district). This is the department’s decision regarding that complaint. The issues are whether the district, during the 2018-19 school year, properly enabled a student with a disability to participate in extracurricular activities and properly followed special education disciplinary procedures.
At all times relevant to this complaint, the student had both an individualized education program (IEP) as well as a behavioral intervention plan (BIP) based on a functional behavioral assessment (FBA). The student’s IEP states that the student will receive adult behavioral support across school settings. The IEP further specifies:
“[The student] requires direct supervision at all times throughout the school building for [the student’s] safety and that of others. [The student] may require redirections when he needs to refocus, leave a situation, reminders to leave other students alone and keep his hands to himself.”
In early spring 2019, the student began participating in an extracurricular athletic activity. In order to ensure implementation of the IEP during the activity, the student’s case manager met with the student’s coaches to discuss and document how to implement relevant portions of the student’s IEP. The case manager’s documentation of the meeting states, in relevant part:
“We talked about [student] needing to be supervised at all times. Supervision at all times is written into [student’s] IEP. After practice, a coach would walk [student] out to [student’s] grandfather’s vehicle on the eastside of the building for pickup while the other students waited for their pickup on the Southside of the building.”
On February 14, 2019, during the transition to the locker rooms at the conclusion of the extracurricular activity, the student was unsupervised and able to move freely throughout the school building unattended. While unsupervised in the school building, the student engaged in conduct that endangered the property, health, or safety of others. The conduct involved inappropriate touching of another student and a staff member. The conduct did not involve weapons, drugs, or serious bodily harm. Had the student been supervised, the student would not have engaged in the conduct. The district suspended the student for the behavior starting on February 15, 2019, and recommended the student for expulsion pending the results of a meeting to determine whether the conduct was a manifestation of the student’s disability. While the student was suspended, the district provided work packets for the student to complete at home.
On February 21, 2019, the fifth day of suspension, the district conducted an IEP meeting to determine whether the student’s behavior was a manifestation of the student’s disability, review and revise the student’s IEP, and determine continuing placement. The student’s parent attended the meeting virtually, and the student’s grandmother attended the meeting in person. During the meeting, the participants discussed and considered the underlying behavior, reviewed each portion of the student’s IEP, teacher observations, and relevant information provided by participants. The IEP team determined that the student’s disability did not cause or have a direct and substantial relationship to the behavior. During the meeting, district staff read the IEP and BIP aloud and discussed whether the district failed to implement any portion of the IEP or BIP. None of the attendees raised specific concerns, and the IEP team determined that the conduct was not the direct result of the district’s failure to implement the IEP. Consequently, the IEP team determined that the student’s behavior was not a manifestation of the student’s disability, and the district could continue with the disciplinary change in placement. The parent and grandmother disagreed with the determination. The parent became upset and withdrew from the meeting. The IEP team continued the meeting without the parent. The IEP team did not review the BIP to determine if the BIP needed modification to address the student’s behavior. The IEP team revised the student’s placement and determined that the district would implement the student’s IEP at a neutral offsite location. The student’s grandmother wanted the student to remain in the school setting. Accordingly, she indicated that she would not accept services at an offsite location. Based on the grandmother’s statement, the district did not implement the IEP in the alternative setting and, instead, continued providing work packets for the student to complete at home.
On February 28, 2019, the district held a hearing resulting in the student’s expulsion from the school district until the age of 21 with conditions for early reinstatement no earlier than the first semester of the 2019-2020 school year. On March 12, 2019, the district’s school board affirmed the expulsion order. Additionally, the student’s IEP team met on March 12 to conduct an annual IEP team meeting. The student’s grandmother communicated to district staff that she would, in fact, like the student to begin receiving services at the offsite location. The district began implementing the student’s IEP at the neutral offsite location the following day. Accounting for days when school was not in session, eleven days elapsed between the student’s fifth day of removal and the district’s implementation of the IEP at the neutral offsite location. The student did not receive the services outlined in the student’s IEP during this period.
Whether district staff properly enabled a student with a disability to participate in extracurricular activities.
Districts must take steps to afford students with disabilities an equal opportunity to participate in nonacademic and extracurricular services and activities. All IEP teams must determine whether each student needs supplementary aids and services to access noncurricular and extracurricular activities, describe those services with sufficient clarity, and ensure the student receives the services as described in the student’s IEP when the student participates in such activities (34 CFR 300.117).
The district properly developed the IEP to enable the student to participate in extracurricular activities. The IEP team provided the necessary supports, including direct supervision, and the district communicated these supports to responsible staff members, including the student’s coaches. However, direct supervision was not provided on February 14, 2019, which led to the incident that resulted in the disciplinary action.
Whether the district properly followed special education disciplinary procedures.
An expulsion is a disciplinary change of placement. Within ten days of a decision to change the placement of a student with a disability because of a violation of a code of student conduct, the school district, the parent, and relevant members of the student’s IEP team must review relevant information in the student’s file to determine if the conduct was a manifestation of the student’s disability. The information reviewed includes the student’s IEP, any teacher observations, and any relevant information provided by the parents. The conduct is a manifestation of the student’s disability if the disability caused or had a direct and substantial relationship to the conduct or if the conduct was the direct result of the district’s failure to implement the IEP. If the conduct was a manifestation of the student’s disability, the IEP team must conduct an FBA and develop a BIP. If a student already has a BIP, the IEP team must review the BIP and make modifications, as necessary, to address the behavior. The IEP team must also return the student to the placement from which the student was removed, unless the parent and the school district agree to a change of placement as part of the modification of the BIP, or the conduct involved weapons, drugs, or serious bodily harm (34 CFR 300.530).
The district did not properly follow special education disciplinary procedures in determining whether the student’s behavior was a manifestation of the student’s disability. The student’s IEP requires the district to provide the student direct supervision at all times throughout the school building for the student’s safety and that of others. At the time of the behavior leading to the disciplinary change in placement, staff were not supervising the student. District staff acknowledged that had the supervision required in the IEP occurred, the student would not have engaged in the behavior. As such, the student’s behavior was the direct result of the district’s failure to implement the student’s IEP. Accordingly, the district should have found the student’s conduct to be a manifestation of the student’s disability, and the IEP team should have reviewed the student’s BIP; made modifications, as necessary, to address the behavior; and returned the student to the placement from which the student was removed. The school board’s expulsion decision is a change of placement in violation of 34 CFR 300.530 and is therefore invalid.
As corrective action, within 20 days of this decision, the IEP team must reconvene to return the student to the student’s placement prior to the disciplinary removal and to review the BIP and modify it, as necessary, to address the behavior. The parent and district may agree to a different placement as part of the modification of the BIP. Additionally, the IEP team shall determine the required compensatory services missed as of February 21, 2019, the date of the manifestation determination meeting. Within ten days of the IEP team meeting, the district must provide the department copies of the revised IEP, including the description of compensatory services, and the BIP.
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. This decision is final for the IDEA State Complaint process.
//signed BVH 7/22/2019
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support