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IDEA Complaint Decision 20-066

On December 9, 2020, the Department of Public Instruction (department) received a complaint under state and federal special education law from XXXXX (complainant), on behalf of XXXXX (parent), against the XXXXX (district). This is the department’s decision regarding that complaint. The issue identified is whether the district, on December 10, 2019, properly conducted a manifestation determination.

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 must conduct a manifestation determination. The district, the parent, and relevant members of the student’s 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 to 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 IEP. 34 CFR § 300.530(e).

On December 10, 2019, the IEP team met to conduct a manifestation determination examining the student’s behavior the prior week, which took place following an unrelated incident that involved a gun at another school building in the district. The district sent an email to staff informing them that some students may elect to go home early that day due to the trauma of the incident in the district. The student who is the subject of this complaint reported to the health office and requested to go home due to not feeling well. The school nurse called the student’s parent and asked if the parent could pick up the student at school. The parent arranged for the student to be picked up. The student prepared to go home by retrieving a book bag from the student’s locker and then returning to class to await the ride home, as students were not permitted to wait at the building entrance due to heightened security efforts. The student left class a short time later to take transportation home. While walking in the hallway, other students believed they heard the student say, “I have a gun in [my] book bag” three times. The other students informed district administrative staff, and as a result, administrative staff placed the school on lockdown. Administrators were not able to find the student at school but later located the student at home.

Two days after the incident, district administrators interviewed the student and parent about the allegation. The student explained that the student was asked multiple times by a classmate why the student was leaving school early and if the student had a gun at school, to which the student responded, “Yeah, okay,” and “Nah, I’m just playing.” The student was suspended for violation of board policy against endangering the safety of others and recommended the student for expulsion.

During the manifestation determination meeting on December 10, 2019, the IEP team reviewed information from previous IEP meetings, including the parent’s concerns that the student has difficulty following directions and sitting still and likes to “play around” when other people are doing work. The IEP team also considered current information and concerns provided by the parent and student. The student knew about the gun incident elsewhere in the district, and admitted the student should not have talked about having a weapon at school. The parent shared that the student had been in counseling for emotional disturbance and distress. The IEP team reviewed the student’s special education evaluation report. It noted the student was eligible for special education in the area of Other Health Impairment due to impulsive behavior, difficulty maintaining focus, and high distractibility that adversely impact the student’s academic performance. The student demonstrated significant difficulty with behavior, as evidenced by a high number of incidents over the years and a previous placement at an alternative learning center. The student has difficulty with less structured tasks. During the evaluation, behavior ratings scales completed by teachers indicated elevated scores in aggression and conduct problems in the school environment.

The IEP team also reviewed the student’s disciplinary history from 2016 to the most recent incident. The team discussed staff observations of the student, including from the student’s regular education teacher, special education teacher, and the assistant principal. Staff noted the student was missing work, often chose not to do work in class, and was frequently late to class. During interviews conducted as part of the complaint investigation, district staff told the department’s investigator that the student could tend to be impulsive and say things without thinking them through and had made impulsive comments and verbal outbursts in the past. However, staff told the department’s investigator that the IEP team concluded the student’s comments in this instance were “ruled out as impulsive because [the student] knew you shouldn’t say things like that out loud.”

The IEP team also reviewed the services in the student’s IEP. The student’s IEP included specially designed instruction four times per week for 40 minutes in a behavior intervention class to support self-advocacy and appropriate decision-making, specially designed instruction in study skills, and a co-taught math course that included specially designed instruction in math. The IEP team discussed previous efforts to support the student, as demonstrated by multiple revisions to the IEP in response to the student’s progress and needs. The IEP team determined that the IEP was consistently implemented. Therefore, it determined the behavior subject to disciplinary action was not the result of the district’s failure to implement the IEP. In addition, staff interviews conducted during the complaint investigation and the student’s attendance records indicate the services in the IEP were implemented as documented. The IEP team correctly determined the behavior subject to disciplinary action was not the result of the district’s failure to implement the IEP.

However, the IEP team failed to properly consider the potential for a causal connection between the student’s disability and the student's conduct. In making the determination that the student’s behavior did not have a direct or substantial relationship to the student’s disability, the IEP team relied on three factors: first, that the student had knowledge of right and wrong; second, the student understood the severity of school threats, violence and consequences; and finally, that the student’s IEP goals were focused on “educational disability and classroom functioning (i.e., academic difficulties, behavior goals around following instructions and work completion).” The IEP team noted that the student displayed impulsive behavior as a characteristic of the student’s disability and reviewed a series of previously documented examples of the student’s impulsive behavior, such as the use of inappropriate language and insubordinate behavior. However, instead of considering whether the student’s statements in this instance were impulsive, the team cited the student’s awareness of the school shooting in the district that day and the student’s admission that “you shouldn’t say things like that out loud” as evidence the behavior was not impulsive. The district did not properly consider the student’s impulsivity in relation to the behavior subject to disciplinary action and, therefore, did not properly conduct a manifestation determination.

In addition, the expulsion order includes documentation of the student’s behavior that occurred in December 2019, as well as a “summary of behavioral history in regard to repeated refusal to follow school rules.” Due to the behaviors presented in evidence, the Board of Education Panel found that the student’s conduct went against the rules of the school and the policies of the school board, and the Panel concluded the student should be expelled. During the manifestation determination, the IEP team did not consider whether the repeated refusal to follow school rules was a manifestation of the student’s disability.

Within 20 days of this complaint decision, the district must conduct a manifestation determination to determine whether the student’s December 2019 behavioral incident and the student’s behavior regarding repeated refusal to follow school rules is a manifestation of the student’s disability. In doing so, the IEP team must consider the causal relationship between the student’s disability-related impulsivity and the student’s behavior in question. Within 10 days from the date of the manifestation determination, the district must send documentation regarding the result of the determination, including the supporting basis and evidence for the decision. Within 30 days from the date of this complaint decision, the district must submit a corrective action plan to ensure that manifestation determinations are properly conducted.

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. These issues may be addressed through other dispute resolutions, including mediation and due process hearings. For more information, visit the department’s website at http://dpi.wi.gov/sped/dispute-resolution.

For questions about this information, contact DPI Sped Team (608) 266-1781