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IDEA Complaint Decision 23-009

On January 31, 2023 (form dated January 30, 2023), 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 that complaint. The issue is whether the district properly followed special education disciplinary procedures during the 2022-23 school year.

Federal special education law provides protections for students with disabilities involved in school disciplinary processes. A student who has not been determined to be eligible for special education and related services and who has engaged in behavior that violated a code of student conduct may assert any of the protections if the public agency had knowledge that the student was a student with a disability before the behavior that precipitated the disciplinary action occurred. (34 CFR § 300.534[a]). The school is deemed to have such knowledge if, before the behavior occurred, the parent expressed concern in writing to supervisory or administrative personnel or a teacher of the student that the student is in need of special education and related services; the parent of the student requested a special education evaluation; or a teacher of the student, or another staff member, expressed specific concerns about a pattern of behavior demonstrated by the student directly to the special education director or other supervisory personnel. (34 CFR § 300.534[b]).

A disciplinary change of placement occurs when the student's removal is for more than 10 consecutive school days or when a series of removals constitutes a pattern because the removals total more than 10 school days in a school year, the behavior is substantially similar to the behavior in previous incidents, and additional factors such as the length of each removal, the total amount of time the student has been removed, and the proximity of the removals to one another. 34 CFR §300.536(a). Under Wisconsin law, a student may be suspended for up to five school days for conduct that violates a district's code of student conduct. A student may be suspended for more than five and up to 15 days if the district sends the student's parent a notice of an expulsion hearing. Wis. Stats. §120.13 (1) (b). 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 (MD). 34 CFR § 300.536. An MD is the process used to determine whether the behavior that resulted in the proposed disciplinary change of placement is a manifestation of the student's disability. A recommendation for expulsion triggers the requirement for an MD because it is a decision by the district to potentially change the student's placement because of a violation of a code of student conduct.

To conduct an MD, the student's parent and relevant members of the 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 student's individualized education program (IEP). 34 CFR § 300.530 (e). If the conduct is determined to be a manifestation of the student's disability, the district may not proceed with the proposed disciplinary change of placement, such as expulsion, and the student must be returned to the placement from which the student was removed unless the parent and the district agree to a change of placement as part of the modification of the student's behavioral intervention plan. 34 CFR § 300.530 (f).

When a student is subject to a disciplinary change of placement, the district must provide the student services to continue to receive a free, appropriate public education. The services must be sufficient to enable the student to continue to participate in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the student's IEP. 34 CFR § 300.530(d).

The student who is the subject of this complaint attended a private school during the first semester of the 2022-2023 school year. Beginning in October, the student made inappropriate comments and had inappropriate physical interactions with several students at the private school. The incidents occurred on multiple occasions and became more frequent and more severe over the course of the first semester. As a result of these ongoing behaviors, the student was expelled from the private school on January 5, 2023.

The student's resident school district conducted an initial special education evaluation during the fall semester of the 2022-23 school year. On December 16, 2022, the student's IEP team met and determined the student met impairment criteria for the disability area of Other Health Impairment (OHI) and required special education. The student's IEP team determined the student needs specially designed instruction in task management and engagement to consistently complete academic work. At the time of the student's eligibility determination, the student's parent did not wish to enroll the student in public school and as such, the team did not develop an IEP for the student.

On Friday, January 6, 2023, the student's parent enrolled the student in their resident public school district. During the transfer of the student's pupil records, the school district became aware of the behavioral incidents that were the basis of the student's expulsion from the private school. As the student's misconduct at the private school violated the public school district's school board policies and the district's secondary student handbook, the school district suspended the student for five days, beginning on January 9, 2023. On January 13, 2023, the school board held an expulsion hearing to determine whether to expel the student from the public school district. The student's suspension was extended pending the expulsion hearing on January 23, 2023.

Although the student did not have an IEP at the time of their enrollment in public school, the district acknowledges that the deemed to know provisions applied, and therefore the disciplinary protections under special education law were applicable. On January 18, 2023, the district held a manifestation determination. District representatives, relevant IEP team members, the student, the student's parents, and an advocate participated in the meeting. The group reviewed evaluation data, information provided by the private school, information provided by the detective who investigated the student's misconduct from the private school, and information from the student's private therapist. The group determined the student's misconduct at the private school was not caused by nor substantially related to the impulsive and attention seeking behaviors attributable to the student's disability. The student also demonstrated actions that recognized the behaviors were wrong. Since the student was not enrolled in public school and at the time of the behaviors leading to consideration of expulsion, the question of whether the behavior was the result of the district's failure to implement an IEP was not applicable. As a result, the group determined the student's behaviors were not a manifestation of the student's disability. Given this determination, the student remained suspended, and the district moved forward with the expulsion hearing. The student was expelled from the public school district on January 23, 2023.

On January 24, 2023, following the 10th day of removal, the student began receiving virtual specially designed instruction. An IEP meeting was held on January 26, 2023, to discuss the student's participation in virtual general education classes and special education services. The parents provided consent for initial placement on February 1, 2023. The student continues to receive virtual services.

After the district's decision to initiate expulsion proceedings regarding the student, the district properly followed special education disciplinary procedures given the circumstances. This decision is limited to the review of the special education disciplinary requirements under IDEA, and does not address any other issue related to the expulsion under Wis. Stat. s. 120.13, which would be beyond the scope of the department's special education complaint investigation authority.

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 or contact the special education team at (608) 266-1781.

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