On March 17, 2022, the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (complainants) against the #### (district). This is the department's decision regarding this complaint. The issues identified are whether the district, during the 2021-22 school year, properly developed an individualized education program (IEP) for a student with a disability to address the student's behavioral needs and 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 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 8th grade and is identified as a student with a disability under the category of Specific Learning Disability (SLD). The individualized education program (IEP) in effect for the student on March 3, 2022, was developed on May 24, 2021. In addition to academic needs resulting from the student's SLD, the IEP indicates the student has disability-related behavioral needs in the areas of on-task behavior and using coping skills to regulate emotion. The student's IEP contained an annual goal addressing emotional regulation and indicated the student needed to increase their ability to identify stressors, remain calm, and ask the teacher's permission to take a break. The student's appropriate response would be demonstrated by the student refraining from swearing at teachers. The goal indicated the student was currently able to use self-regulation skills in six out of ten opportunities, with an annual goal to improve to nine out of ten opportunities. The IEP indicates the student would receive a daily check-in/check-out with staff to discuss any emotional needs and breaks when the student is feeling dysregulated for three to five minutes in a predetermined location. The student received specially designed behavioral instruction in emotional regulation, coping skills, and on-task strategies. The district properly developed the student's IEP to address the student's behavioral needs.
On March 3, 2022, while in a classroom being overseen by a substitute teacher, the student became upset after being struck by another student during a disagreement over a chair. A staff person who was outside the room heard what was happening and removed the other student from the classroom to the hallway. While leaving the classroom, the other student made inappropriate comments to the student who is the subject of this complaint. The student, who is the subject of the complaint, became very angry and left the classroom to re-engage with the other student. In the process, the student pushed a teacher. Staff physically intervened to keep the student away from the other student. The student broke away from the restraint, left the school building, and headed home. The student received a three-day suspension for the incident, and the district recommended the student for expulsion.
The student's IEP team, including the student's parents and some of the school staff who were present during the incident, met to conduct a manifestation determination on March 10, 2022. During the meeting, the team reviewed the student's IEP and discussed the student's history of disruptive behavior, including chasing peers and verbal aggression with adults and other students, sometimes including property damage to furniture and trash cans. The team discussed the student's history of multiple office disciplinary referrals over the years. The student's parents shared their concerns about the student's self-regulation and anger management concerns and that the student had been receiving medical treatment related to a suspected mental health issue. The student's parents felt that the behavior in question was clearly related to the student's disability. After being struck by the other student, the student shared that they became very angry and felt unable to refrain from engaging in the fight. Multiple school staff indicated that this particular behavior of fighting with other students was not typical for the student and noted that the student's IEP provided strategies for the student to avoid this type of behavior. The school psychologist and program support teacher indicated that because this incident was not typical for the student and because the behavior was not related to the student's identified impairment area of SLD, it was neither caused by nor had a direct and substantial relationship to the student's disability. District staff also determined the student's IEP was fully implemented at the time of the incident, although the student's parents believed the student's BIP was not followed as the student should have been escorted to an alternative location early in the incident to de-escalate. The district determined the behavior was not a manifestation of the student's disability. The district proceeded with an expulsion hearing and, following an IEP team meeting on March 25, 2022, imposed a conditional reinstatement for the student to return to the student's then-current school. The student's parents were not comfortable sending the student to school, knowing the student was very likely to be unable to meet the conditions of reinstatement due to the student's disability-related needs, and kept the student home.
The district did not properly conduct the manifestation determination. The team relied on its review of the student's IEP and did not appropriately consider the information provided by the student's parents regarding the student's mental health condition. In addition, it was not appropriate for district staff to base its determination on whether the behavior was attributable to the student's identified impairment area of SLD without considering all pertinent information, especially given that the student's IEP team had historically identified disability-related behavioral issues for the student not typically associated with SLD.
District-level staff became involved during the month of April 2022 and, following consultation with the student's parents, facilitated the student's placement in a different district school beginning on Friday, April 29, 2022. District-level staff determined the original team conducting the manifestation determination had not fully considered all information, including information provided by the student's parents, and decided to conduct a new manifestation determination. The team met on May 11, 2022. The IEP team determined that the student's behavior was a manifestation of the student's disability based on a more thorough review of the student's file and after fully considering medical information provided by the student's parents regarding the student's mental health. In addition, the team determined the student's IEP was not implemented during the incident. The student should have been removed to an alternative location to take a break, but the incident developed quickly, and the substitute teacher in the classroom may not have had time to intervene. In addition, following the incident, staff did not obtain a statement from the substitute, so the team did not have documentation of attempted interventions during the beginning of the incident. Based on the second manifestation determination, the district has expunged the expulsion from the student's record. The IEP team reviewed the student's IEP and updated the behavior goals to reflect the student's current situation more accurately. The IEP team will reconvene to complete revisions of the student's FBA and BIP in the upcoming week. At the time of this decision, the student is attending the new school in person full-time and is doing very well. No further student-level corrective action is required.
Within 20 days of this decision, the district is directed to develop and submit to the department a corrective action plan to ensure the staff at the school where the incident occurred know how to properly conduct a manifestation determination, including full consideration of information provided by parents and consideration of all disability-related needs, not only those typically associated with a student's identified impairment area.
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.