IDEA Complaint Decision 02-036

On May 31, 2002, the Department of Public Instruction received a complaint under state and federal special education law from XXXXX against the Milwaukee Public Schools. This is the department's decision regarding that complaint. The issue is whether the district failed to follow requirements related to removing a child with a disability from school for more than ten days during the 2001-2002 school year.

During the investigation, the district acknowledged to the department that the student was suspended out of school at least 11 cumulative days during the 2001-2002 school year. In a June 14, 2002, letter to the department the district states, "[e]nclosed is a copy of the attendance record that documents that the 11th day of suspension occurred on May 31, 2002." The child's attendance record provided to the department ends on May 29, 2002, and documents 10 cumulative days of out-of-school suspensions during the 2001-2002 school year. The complainant states that the principal drove the child home on May 30 and told the child's mother that the child was suspended for four days. When the complainant went to the child's school on May 30 he was unable to obtain any documentation of the suspension.

Review of documentation submitted by the district and complainant indicates that the student was removed from school for as many as four and one-half additional days prior to May 31, 2002. District records are unclear and contradictory. This is consistent with one of the department's findings following its May 2002 on-site compliance review that the district's systems for recording and tracking disciplinary removals of students with disabilities from school are inadequate to ensure the provision of a free appropriate public education when they are removed for more than 10 days in a school year. The child's out-of-school suspensions exceeded ten cumulative days in the 2001-2002 school year. The child's record provided to the department includes an undated grade 3 functional behavioral assessment (FBA) including interventions. This FBA and the child's February 16, 2002, IEP include a behavior goal.

Before a child may be removed from his current placement for more than ten school days in a school year, school officials must determine whether an additional removal would result in a change of placement. If the district decides that a change in placement would occur, it must conduct an IEP team meeting and determine whether the conduct is a manifestation of the student's disability. The district failed to address this requirement. In addition, when a student is first removed for more than 10 cumulative school days in a school year, the IEP team must meet to review the FBA and BIP and modify the plan and its implementation as necessary to address the behavior. The district failed to meet this requirement, as well. Beginning on the 11th day of suspension in the school year, the district was obligated to provide services for the child to the extent necessary to enable him to progress appropriately in the general curriculum and advance appropriately toward achieving annual goals, and to take actions regarding a FBA. The district suspended the student without meeting this requirement.

The district, when it acknowledged that the child had been suspended for more than 10 days during the school year, indicated that it will convene an IEP team meeting to address needed child-specific corrective action. Prior to the beginning of the 2002-2003 school year, an IEP team must review the FBA and behavior intervention plan (BIP) and modify the plan as necessary to include positive intervention and supports to address the child's behavior problems at school. The IEP team also must determine if the child needs additional services to compensate for the period of removal in excess of 10 days in the 2001-2002 school year when educational services were not provided to the child. The district must submit documentation of these child-specific corrective actions to the department by August 30, 2002.

On November 15, 2000, the district submitted a plan of correction to the department related to several complaints, ensuring that the district follows required procedures when a child with a disability is subjected to disciplinary removals including suspensions from school. Based upon this complaint investigation and the department's May 2002 on-site compliance review of the district, it appears that the corrective actions undertaken by the district to date have not been sufficient to remedy the issue of disciplinary removals. Therefore, the department directs the district to review its current plan related to disciplinary removals of children with disabilities and amend it to include additional corrective actions that will effectively address this issue. Department staff will work closely with the district to assist in its review, revision, and implementation of the discipline consolidated corrective action plan (CCAP). The discipline CCAP must be revised by August 15, 2002.

This concludes our review of this complaint.

//signed 7/24/02 by SJP
Carolyn Stanford Taylor
Assistant State Superintendent
Division for Learning Support: Equity and Advocacy

For questions about this information, contact Patricia Williams (608) 267-3720