On January 29, 2020, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (parent) against the XXXXX (district). This is the department’s decision regarding the complaint. The issue is whether the district, during the 2019-20 school year, properly followed special education disciplinary procedures.
Within 10 school days of any decision to change the placement of a student with a disability because of a violation of a code of student conduct, the district, the parent, and relevant members of the individualized education program (IEP) team must review all relevant information in the student’s file, including the student’s IEP, any teacher observations, and any relevant information provided by the parents. (34 CFR § 300.530[e]). In light of this information, the team must determine if the conduct in question was caused by, or had a direct and substantial relationship to the student’s disability, or if the conduct in question was the direct result of the district’s failure to implement the student’s IEP. This process is known as a manifestation determination. If the team determines the behavior was a manifestation of the student’s disability, the student’s placement may not be changed unless certain limited exceptions apply. (34 CFR § 300.530[f]). If the team determines the behavior was not a manifestation of the student’s disability, the district may apply relevant disciplinary procedures in the same manner as applied to students without disabilities.
On October 9, 23, 28, and November 20, 2019, the student engaged in physically aggressive behavior toward classmates. The first three of these incidents resulted in in-school suspensions. Following the fourth incident, the district assigned the student a four-day out-of-school suspension and recommended the student’s expulsion from the district based on the student’s behavior exhibited in all four instances.
District staff referred the student for a special education evaluation on November 10, 2019, citing concerns about the student’s impulse control and aggressive behavior. The parent provided consent for the district to conduct additional assessments on November 21, 2019. An IEP team meeting was held to conduct the evaluation on December 3, 2019. The IEP team consisted of two general education teachers, a learning strategist, the district’s director of special education, the student’s principal, the director of special education for the student’s resident district, the student’s grandmother, and the parent. The IEP team determined the student met criteria in the area of other health impairment and was in need of special education. The team considered and rejected whether the student met impairment criteria for the area of emotional behavioral disability. The team developed an IEP for the student and provided the parent a notice of placement, including the finalized IEP on December 9, 2019.
At the meeting on December 3, 2019, following the determination of eligibility and development of the IEP, the IEP team conducted a manifestation determination. The team discussed the student’s behavior in light of information obtained from the just-completed eligibility determination and development of the IEP. The team also considered information from a special education evaluation in 2017 and information provided by the student’s parent of outside medical diagnosis of oppositional defiant disorder and depression. The parent and one other IEP team member believed the student’s behavior was caused by the student’s disability, one team member was unable to reach a conclusion, and the remaining team members believed the behavior was not a result of the student’s disability. Given the lack of consensus, the local educational agency representative made the final determination that the behavior was not a manifestation of the student’s disability. The team did not consider whether the failure to implement the IEP was a cause of the behavior as there was no IEP in effect at the time the behaviors occurred. Since the IEP team considered relevant information from the student’s file, including medical information provided by the student’s parent and information provided by other IEP team members, and discussed that information as it applied to whether the behavior was a manifestation of the student’s disability, the district properly followed special education disciplinary procedures.
The student had a 504 plan in effect prior to the December 3, 2019, special education evaluation and IEP development. The district asserts that it met the disciplinary requirements of Section 504 of the Rehabilitation Act in conducting the manifestation determination on December 3, 2019. The department does not review state IDEA complaints for compliance with Section 504 regulations.
This concludes our review of this complaint, which we are closing. This decision is final for the IDEA State Complaint process. These issues may be addressed through other dispute resolution options, including mediation and due process hearings. Visit the department's website at http://dpi.wi.gov/sped/dispute-resolution for more information.
//signed by BVH 3/10/20
Barbara Van Haren, PhD
Assistant State Superintendent
Division for Learning Support