On February 2, 2022 (form dated January 19, 2022), the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (complainant) against the ####. This is the department’s decision regarding this complaint. The issue identified is whether the local educational agency (LEA), in November 2021, properly conducted a manifestation determination.
Within ten 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).
The student who is the subject of this complaint is in seventh grade and has a history of distractibility, impulsivity, and physical and verbal aggression, including the use of vulgar language toward staff and other students. The IEP in effect for the student on November 17, 2021, was developed in December 2020 and noted that school was completely virtual during the 2020-21 school year. The IEP indicates the student’s disability affects the student’s ability to cope with frustration in a healthy and safe manner and regulate emotions effectively. The student’s IEP contained an annual goal addressing self-regulation when frustrated and indicated the student needed to increase their ability to respond appropriately to frustration by private messaging a teacher, asking for a breakout room, or asking to take a break. The student’s appropriate response would be demonstrated by the student remaining in class. The goal indicated the student was currently remaining in class one out of five opportunities. The IEP also includes breaking down and repeating multi-step directions, sensory breaks, strategic location of seating, and specialized instruction in behavior regulation. The IEP includes a behavior intervention plan (BIP) targeting behaviors for classroom disruption and disrespect for adults and peers, including the use of profanity and noncompliance with adult directives following a reminder.
On November 17, 2021, the student entered a classroom after transition time in the hallway and sat in a seat other than the one assigned to the student. The location of the student’s seat within this particular classroom had been a topic of frustration for the student, and the teacher had tried different locations prior to the one the student was assigned to at the time. The teacher reminded the student why it was important to sit in their assigned seat. Another staff member who had been outside the classroom monitoring students during transition time also reminded the student to sit in their assigned seat. The student became agitated and left the classroom while swearing at the staff member, stating, “we’re going to have a fight.” Another staff member asked the student to come with them to a different classroom for a break and offered to walk with the student. The student continued to shout and swear at staff but left with the other staff member. After the incident, the student expressed remorse for their actions. The student was placed in an out-of-school suspension, and on November 18, 2022, the district sent the parent a notice of a manifestation determination and potential referral for consideration for the expulsion of the student. The letter indicated the reasons for the disciplinary action were cursing at a teacher, chronic disrespect for adults, and threats to a teacher.
The student’s IEP team, including the student’s parent and some of the school staff who were present during the incident, met to conduct a manifestation determination on November 19, 2021. During the meeting, the team discussed the student’s history of disruptive behavior and the student’s history of multiple suspensions over the years. The student’s parent felt the behavior was very typical for the student, given the student’s well-known and documented disability-related needs. Additionally, the parent indicated that the student recently stopped taking medication to help with impulsivity due to significant side effects. The student’s parent believed the behavior was a manifestation of the student’s disability. Although there was some discussion of whether the student’s conduct was related to their impulsivity, the team determined the behavior was not a manifestation of the student’s disability, citing three factors: first, the student was able to direct the inappropriate language toward a specific person; second, while at times the student says things in a joking manner, staff did not perceive the student to be joking in this case; and third, since the student’s IEP does not identify the student as having difficulty understanding social cues or the intent of messages the student knew their language created a real threat. These factors do not take into consideration the student’s history of distractibility, impulsivity, and physical and verbal aggression, including the use of vulgar language toward staff and other students, as identified in the student’s IEP and other student records. The IEP team did not properly conduct the manifestation determination.
Ultimately, the district did not move forward with an expulsion and did not change the student’s placement. Within 20 days of this decision, the LEA is directed to either reconvene the manifestation determination to properly consider the student’s behavioral history and documented disability-related behavioral needs or remove the manifestation determination from the student’s record. The LEA must submit documentation of completing one of these actions to the department within 30 days from the date of this decision.
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 or contact the special education team at (608) 266-1781.