On April 13, 2022, the Department of Public Instruction (department) received a complaint under state and federal special education law from #### (complainant) against the #### (district). This is the department's decision regarding this complaint. The issue identified is whether the district, during the 2021-22 school year, properly implemented the individualized education program (IEP) of a student with a disability regarding the student's behavior intervention plan (BIP).
School districts must provide a free appropriate public education (FAPE) to each student with a disability by developing an individualized education program that meets the student's unique needs and by implementing the special education and related services in accordance with the student's IEP. 34 CFR §§ 300.323(c)(2) & 300.324. In the case of a student whose behavior impedes the student's learning or that of others, districts must consider the use of positive behavioral interventions and supports and other strategies to address that behavior. 34 CFR § 300.324 (a)(2)(i).
The student who is the subject of this complaint is identified as a student with an emotional behavioral disability. The IEP in place for the student at the time of the events relevant to this complaint was developed on December 16, 2021. The IEP indicates the student's behavior impedes the student's learning due to an inability to self-regulate when feeling frustration, annoyance, or disappointment. The IEP describes classroom behaviors such as grunting, yelling, refusing to speak, walking out of class, and other actions that disrupt the classroom. The IEP includes strategies such as keeping instruction to the student brief, direct, and interactive, providing positive verbal reinforcement, providing additional processing time and breaks, and providing a safe space for the student to go when upset. The IEP includes a goal for the student to maintain appropriate participation in the academic setting and specially designed instruction in self-regulation, conflict resolution, self-determination, and communication strategies.
The IEP also includes a BIP that indicates the student requires time and instruction on how to handle conflict and frustration in a positive manner. The BIP indicates that when the student demonstrates unacceptable classroom behaviors, staff should ignore the behavior. If the behavior continues, staff should give the student a verbal or visual redirection and a reminder of the expected behavior. If the behaviors continue after the first attempt at redirection, the staff is to provide another redirection and provide a clear if/then consequence. If the student refuses to comply, the student should be directed to leave the classroom and go to the special education classroom to self-regulate. Staff should call the student's special education teacher to alert them to the student's arrival, and if necessary, the special education teacher should escort the student to the special education classroom. If the student refuses to leave the classroom, staff should contact available administrators to remove the student from the classroom environment.
On February 18, 2022, during the lunch period, the student was serving detention in an area near the principal's office along with another student. The other student left briefly to use the restroom. In the meantime, a staff member found a vaping device in the restroom the other student had used. Another student erroneously told the staff member the vaping device belonged to the student who is the subject of the complaint. District staff asked the student who is the subject of this complaint to come into the principal's office to ask about the vaping device. The student immediately became upset and responded by yelling and using inappropriate language. The student left the principal's office and entered the hallway continuing to yell and use inappropriate language. Other students were in the hallway and heard the language the student was using. The school resource officer (SRO) was also in the hallway and directed the student to join them in their office. The student went into the SRO's office and spoke with the SRO and another staff member. They ascertained that the vaping device did not belong to the student through the discussion. The student calmed down and apologized for the behavior. The district gave the student an out-of-school suspension due to the nature of the disruptive behavior. The student also received a citation from the police and a monetary fine. The student, a multi-sport athlete, was suspended from participating in sports due to this incident and other incidents from earlier in the school year.
The student's BIP did not address this situation. Consequently, the staff could not apply the sequence of strategies contained in the BIP because circumstances during this incident were different from those contemplated by the BIP. The BIP was designed to address the student's historical pattern of behaviors, which occurred in more typical classroom settings and situations. In this instance, the student was in the atypical position of serving detention in a non-classroom setting for a previous infraction. The student was aware that their participation in sports had been jeopardized due to earlier incidents, and the student was anxious and frustrated about the possibility of getting in any more trouble. The student's behavior, while consistent with past situations when the student experienced frustration, escalated much more quickly than was typical for the student, and as such, staff were caught off guard by the behavior. Additionally, the student used much more severe and inappropriate language than usual.
Under federal and state special education disciplinary procedures, schools may apply disciplinary consequences to a student with a disability, including out-of-school suspension, provided the student is not being subjected to a disciplinary change of placement. This is true regardless of whether the behavior might be related to the student's disability. The conditions that create a disciplinary change in placement were not applicable in this situation.
The student's parent expressed significant concern regarding the district's handling of this incident and the resulting impact on the student. The student's exclusion from participation in sports has been very difficult for the student, and the student's engagement in school has decreased dramatically. The district does not have control over the consequences for the student's behavior imposed by the police, and the decision about the student's participation in sports is made by the state athletic association, not the school district. Although there is no finding of noncompliance, given the change in the student's behavior and engagement, the district is to reconvene the student's IEP team within 30 days of this incident to review and, if necessary, revise the student's IEP and BIP.
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.