IDEA Complaint Decision 99-025

On March 23, April 26, and May 17, 1999 (letters dated March 22, April 23, and undated), a complaint was filed with the Department of Public Instruction by XXXXX against the Clear Lake School District. This complaint alleges a violation of special education law regarding the implementation of programs for children with disabilities.

Pursuant to 34 CFR 300.660-662 of the regulations implementing the Individuals with Disabilities Education Act (IDEA) and ss. 115.762(3)(g) and 115.90(1), Wis. Stats., the Department of Public Instruction investigated this complaint. In investigating a complaint, the department reviews a district's compliance with state and federal requirements. During this investigation, department staff reviewed relevant education records of the child, documents submitted by the complainant, and the district's response to the complaint. Department staff spoke with the complainant, the child's special education teacher, the child's foster mother, the principal, and the director of special education.

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ISSUE #1:

Did the district deny the child a free appropriate public education (FAPE) during the current school year through a series of exclusions from school?

APPLICABLE STATUTES AND RULES:

Section 115.77, Wisconsin Statutes
Local educational agency duties.

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(1m) A local educational agency shall demonstrate to the satisfaction of the division that it does all of the following:

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(b) Makes available a free appropriate public education to children with disabilities as required by this subchapter and applicable state and federal law.

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Section 120.13, Wisconsin Statutes
School board powers.

The school board of a common or union high school district may * * *:
(1) SCHOOL GOVERNMENT RULES; SUSPENSION; EXPULSION. (a) Make rules * * * pertaining to conduct and dress of pupils in order to maintain good decorum and a favorable academic atmosphere * * *
(b) The school district administrator or any principal or teacher designated by the school district administrator also may make rules, with the consent of the school board, and may suspend a pupil for not more than 5 school days or, if a notice of expulsion hearing has been sent under par. (c) 4. or (e) 4. or s. 119.25 (2)(c), for not more than a total of 15 consecutive school days for noncompliance with such rules or school board rules, or for knowingly conveying any threat or false information concerning an attempt or alleged attempt being made or to be made to destroy any school property by means of explosives, or for conduct by the pupil while at school or while under the supervision of a school authority which endangers the property, health or safety of others, or for conduct while not at school or while not under the supervision of a school authority which endangers the property, health or safety of others at school or under the supervision of a school authority or endangers the property, health or safety of any employee or school board member of the school district in which the pupil is enrolled. Prior to any suspension, the pupil shall be advised of the reason for the proposed suspension. The pupil may be suspended if it is determined that the pupil is guilty of noncompliance with such rule, or of the conduct charged, and that the pupil's suspension is reasonably justified. The parent or guardian of a suspended minor pupil shall be given prompt notice of the suspension and the reason for the suspension. The suspended pupil or the pupil's parent or guardian may, within 5 school days following the commencement of the suspension, have a conference with the school district administrator or his or her designee who shall be someone other than a principal, administrator or teacher in the suspended pupil's school. If the school district administrator or his or her designee finds that the pupil was suspended unfairly or unjustly, or that the suspension was inappropriate, given the nature of the alleged offense, or that the pupil suffered undue consequences, or penalties as a result of the suspension, reference to the suspension on the pupil's school record shall be expunged. Such finding shall be made within 15 days of the conference. A pupil suspended under this paragraph shall not be denied the opportunity to take any quarterly, semester or grading period examinations or to complete course work missed during the suspension period, as provided in the attendance policy established under s. 118.16(4)(a).

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

U.S. Department of Education, Office of Special Education Programs (OSEP) Memorandum 95-16, April 26, 1995, 22 IDELR 531.

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A series of short-term suspensions in the same school year could constitute a change in placement. Factors such as the length of each suspension, the total amount of time that the student is excluded from school, the proximity of the suspensions to each other, should be considered in determining whether the student has been excluded from school to such an extent that there has been a change in placement. This determination must be made on a case-by-case basis.

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Where these changes are long-term (more than ten school days), they are considered a change in placement.

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Department of Public Instruction, Learning Support: Equity and Advocacy Information Update Bulletin No. 94.10, August 1994.

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5. Is there a limit on the total number of days a pupil with [a disability] may be suspended during the school year?

Yes. While the law does not establish a limit by stating a particular number of cumulative days of suspension permitted during a school year, there are limitations with regard to a district's ability to suspend a child with [a disability]. A series of short suspensions may create an exclusionary pattern that constitutes a significant change in placement. If a series of suspensions creates such a pattern of exclusion, the district has denied the child a free appropriate public education (FAPE) in violation of state and federal law.

6. How may a district ensure that it does not deny FAPE to a child with [a disability] through a pattern of suspensions that exclude the child?

A district should take steps to ensure the child's educational program addresses his or her unique needs, including educational interventions to address inappropriate behaviors arising from the child's disability. If a pattern of disciplinary suspensions emerges, then the district should review the child's IEP and placement offer. The department recommends that the district conduct an IEP meeting no later than the child's seventh cumulative day of suspension during the term of the current IEP. The department recommends that the board representative at the meeting be someone other than the individual issuing the suspensions.

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FINDINGS OF FACT:

The child who is the subject of this complaint is a 16-year-old student with learning and emotional disabilities. The student was suspended for violating school rules on the following dates:

August 18, 19, 20, 21
October 22, 26
November 9, 10, 11, 12

He also received two in-school suspensions on November 2, 1998 and January 29, 1999. His IEP was implemented on both of those dates. The student was suspended for a total of 10 days during the 1998-99 school year. None of the suspensions was for more than five consecutive days.

CONCLUSION:

A school district must provide a free appropriate public education (FAPE) to each child with a disability. In order to provide a child with FAPE, a district must, in part, provide special education and related services consistent with the child's IEP. In addition, the services provided by a district must meet the requirements of the statutes and rules enforced by the department, including those related to student suspension.

State law governs procedures relating to the suspension of students. The law does not establish a limit by stating a particular number of cumulative days of suspension permitted during a school year; however, there are limitations with regard to a district's ability to suspend a child with a disability. A child with a disability may be suspended for up to five days or for up to 10 consecutive days if a notice of expulsion has been sent to the child's parents. A series of short suspensions that cumulatively exceed 10 days may create an exclusionary pattern that constitutes a change in placement. If a series of suspensions creates a pattern of exclusion, the district has denied the child FAPE in violation of state and federal law. Factors to consider in determining whether the student has been excluded from school to such an extent that there has been a change in placement include the length of each suspension, the total amount of time that the student is excluded from school, and the proximity of the suspensions to each other. Such determinations must be made on a case-by-case basis.

During the 1998-99 school year, the student was suspended from school for 10 days. No suspension was for more than five consecutive school days. The suspensions did not violate state standards related to suspension. There is no violation with regard to issue #1.

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ISSUE #2:

Did the district deny the child FAPE during the current school year when he was excluded from participation in extracurricular and nonacademic activities?

APPLICABLE STATUTES AND RULES:

Section 115.76, Wisconsin Statutes
Definitions.

In this subchapter:

* * *

(7) "Free appropriate public education" means special education and related services that are provided at public expense and under public supervision and direction, meet the standards of the department, include an appropriate preschool, elementary or secondary school education and are provided in conformity with an individualized education program.

* * *

Section 115.77, Wisconsin Statutes
Local educational agency duties.

* * *

(1m) A local educational agency shall demonstrate to the satisfaction of the division that it does all of the following:

* * *

(b) Makes available a free appropriate public education to children with disabilities as required by this subchapter and applicable state and federal law.

* * *

Section 115.787, Wisconsin Statutes
Individualized education programs.

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(2) REQUIRED COMPONENTS. An individualized education program shall include all of the following:

* * *

(c) A statement of the special education and related services and supplementary aids and services to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided for the child to do all of the following:

* * *

2. Be involved and progress in the general curriculum in accordance with par. (a) and participate in extracurricular and other nonacademic activities.
3. Be educated and participate with other children with disabilities and nondisabled children in the activities described in this subsection.
(d) An explanation of the extent to which the child will not participate with nondisabled children in regular classes, in the general curriculum and in extracurricular and other nonacademic activities.

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34 CFR 300.306 Nonacademic services.

(a) Each public agency shall take steps to provide nonacademic and extracurricular services and activities in such manner as is necessary to afford children with disabilities an equal opportunity for participation in those services and activities.

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34 CFR 300.553 Nonacademic settings.

In providing or arranging for the provision of nonacademic and extracurricular services and activities, including meals, recess periods, and the services and activities set forth in s. 300.306, each public agency shall ensure that each child with a disability participates with nondisabled children in those services and activities to the maximum extent appropriate to the needs of that child.

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ADMINISTRATIVE & JUDICIAL INTERPRETATIONS:

Department of Public Instruction, Learning Support: Equity and Advocacy Information Update Bulletin No. 94.10, August 1994.

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15. May a child with [a disability] be suspended from extra-curricular and co-curricular activities, such as sports, field trips, and assemblies?

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If participation in these activities is not required by the child's IEP, then the child may be denied participation for disciplinary reasons pursuant to the school's disciplinary policy. In fashioning a child's IEP, a district should consider whether a child requires supplementary aids and services in order to successfully participate in extra-curricular and co-curricular activities. If such supplementary aids and services are required, then they should be included in the child's IEP.

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FINDINGS OF FACT:

The complainant alleged that the district improperly prohibited her child from participating in extracurricular activities, beginning in March 1999. Specifically, the complainant alleged that her child was not allowed to attend the junior class prom. The IEP then in effect for the child does not include any provisions requiring the child's participation in extracurricular and nonacademic activities. The IEP team determined that the child did not require supplementary aids and services to participate in extracurricular and nonacademic activities.

In the district's response to the complaint, the high school principal stated that the student exhibited "an attitude of vulgarity and abuse" to the principal and secretaries at school on March 30 and 31, 1999. Following these incidents, the principal informed the complainant that the student could attend the junior class prom as "an incentive for improved behavior" only if the student apologized to office staff. In its response, the district stated that this disciplinary condition for attendance was the same as would have been applied to any student who exhibited such behavior. The complainant informed the principal that the student no longer wished to attend the prom.

CONCLUSION:

A district meets its obligation to provide FAPE to a child with a disability, in part, by providing special education and related services that meet the statutes and rules enforced by the department and are provided in conformity with a child's IEP. One of the rules enforced by the department requires that each child with a disability participate with nondisabled children in nonacademic and extracurricular services and activities to the maximum extent appropriate to the needs of that child.

The IEP defines the services that a child needs in order to receive FAPE, and the extent to which the child will participate in regular education programs, including participation in nonacademic and extracurricular activities. Each IEP is developed to meet the individual needs of a child as determined by the participants in the IEP meeting. If the participants in an IEP meeting determine that a child requires participation in extracurricular and/or nonacademic activities with nondisabled peers in order to receive FAPE, then those activities and any supplementary aids and services that are necessary for the child to participate in the activities must be included in the IEP. The district must provide the services consistent with the child's IEP.

The student's IEP does not require the child's participation in extracurricular activities in order for the child to receive FAPE. As a disciplinary measure, the district conditionally prohibited the student from attending the junior class prom. The student chose to not attend the prom. The district's actions did not violate a requirement in the child's IEP or deny FAPE to the child. There is no violation with regard to issue #2.

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ISSUE #3:

Did the district improperly place the child in a three-day per week program at an alternative site during the current school year?

APPLICABLE STATUTES AND RULES:

Section 115.76, Wisconsin Statutes
Definitions.

In this subchapter:

* * *

(7) "Free appropriate public education" means special education and related services that are provided at public expense and under public supervision and direction, meet the standards of the department, include an appropriate preschool, elementary or secondary school education and are provided in conformity with an individualized education program.

* * *

Section 115.77, Wisconsin Statutes
Local educational agency duties.

* * *

(1m) A local educational agency shall demonstrate to the satisfaction of the division that it does all of the following:

* * *

(b) Makes available a free appropriate public education to children with disabilities as required by this subchapter and applicable state and federal law.

* * *

Section 115.78, Wisconsin Statutes
Individualized education program team; timeline.

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(2) DUTIES OF TEAM. The individualized education program team shall do all of the following:

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(b) Develop an individualized education program for the child under s. 115.787.
(c) Determine the special education placement for the child under s. 115.79.

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Section 115.787, Wisconsin Statutes
Individualized education programs.

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(4) REVIEW AND REVISION. (a) The individualized education program team shall do all of the following:

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2. Revise the individualized education program as appropriate * * *

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Section 115.79, Wisconsin Statutes
Educational placements.

Each local educational agency shall ensure that all of the following occur:

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(2) An educational placement is provided to implement a child's individualized education program.

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(3) To the maximum extent appropriate, a child with a disability, including a child receiving publicly funded special education in a public or private institution or other care facility, is educated with nondisabled children.
(4) Special classes, separate schooling or other removal of a child with a disability from the regular educational environment occurs only when the nature or severity of the child's disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.

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Wisconsin Administrative Code, Section PI 8.01

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(2) SCHOOL DISTRICT STANDARDS.

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(f) Days and Hours of Instruction.

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2. Each school district board shall annually schedule and hold at least * * * 1,137 hours of direct pupil instruction in grades 7 through 12. * * * The hours are computed from the start to the close of each pupil's daily instructional schedule. Scheduled hours under this subdivision include recess and time for pupils to transfer between classes but do not include the lunch period. No more than 30 minutes per day may be counted for recess. In computing the minimum number of hours of instructional hours under this subdivision, days and parts of days on which parent and teacher conferences are held, staff development or inservice programs are held, schools are closed for inclement weather, or when classes are not held may not be counted.

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ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

State Individuals with Disabilities Education Act (IDEA) Complaint No. 94-057, Superior School District, March 17, 1995.

A school district is required to provide a FAPE to each resident child with [a disability]. In order to provide a FAPE, a district must, in part, provide special education and related services that meet the statutes and rules enforced by the department. One of the rules enforced by the department requires a district to schedule annually at least 1,137 hours of instruction for children in grades 7 through 12. The rule states that the instructional hours are computed as the period from the start to the close of each pupil's daily instructional schedule, and that the lunch period is not included in this computation. A district may schedule fewer hours of instruction for a child with [a disability] only if the participants in the meeting to develop the child's IEP determine that the child's individual needs dictate that fewer hours be scheduled. Such a determination must be reflected in the child's IEP. Similarly, deviations from the normal school day, such as instruction during the lunch period, must be reflected in the child's IEP and must be made based upon the child's individual needs.

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FINDINGS OF FACT:

Following an incident in which the student threatened to harm another student in school, the district held an IEP team meeting on March 15, 1999, to review and, if necessary, revise the student's IEP and to determine continuing placement. The complainant received notice of and attended the March 15 IEP team meeting with a parent advocate.

Based upon the student's behavior, the IEP team revised his IEP to provide for one-to-one instruction at a site off school grounds. The parent and her advocate participated in the discussion regarding the student's IEP and placement. The advocate discussed providing services to the child five days per week at the neutral site. The parent and the other IEP team members agreed that four days per week of services was appropriate for the child because of the child's past attendance problems. There is no evidence that the IEP team's decision to provide four days of instructional services per week to the student was based upon the child's educational needs.

At the complainant's request, another IEP team meeting was held on March 29, 1999. The complainant received notice of and attended the meeting. At the March 29 meeting, the IEP team changed the child's IEP to provide for three days, rather than four days, of services per week at a location off school grounds. In its response to the complaint, the district stated the IEP was revised at the request of the complainant because she was having difficulty getting the child to attend school four days per week. The complainant informed the department that she requested the IEP revision only because the district was not going to provide the same teacher for the child on Fridays, and she thought that situation would be detrimental to the child. The district stated that the same teacher was provided to the child all four days per week and that the complainant did not express this concern regarding teacher availability at the March 29 IEP meeting. There is no evidence that the decision to provide three days of instructional services per week to the student was based upon his educational needs.

CONCLUSION:

A school district meets its obligation to provide FAPE to a child with a disability, in part, by providing special education and related services consistent with the child's IEP and the statutes and rules enforced by the department. Such rules include those related to the minimum hours of instruction and the actions a district must take when it changes the provision of special education to a child. State law requires a district to schedule and hold annually at least 1,137 hours of instruction for each pupil in grades 7 through 12. A district may schedule fewer hours of instruction for a child with a disability if the IEP team determines that the child's needs dictate fewer hours. The scheduling of fewer than the minimum number of hours of instruction must be reflected in the child's IEP and must be based upon the child's individual needs.

On March 15 and 29, 1999, the district revised the child's IEP to provide fewer than the minimum annual hours of instruction to the child. The decisions to revise the child's IEP to provide fewer than the minimum annual hours of instruction to the child were made by an IEP team, and the child's parent had the opportunity to participate equally in the decisions. However, there is no evidence that the IEP team's decisions to place the child in a four-day and three-day per week program were based upon the child's individual, educational needs. There is a violation with regard to issue #3.

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DIRECTIVE:

The Clear Lake School District shall, within 30 days of receipt of this report, submit to the department a corrective action plan (CAP) that ensures that IEP team decisions to provide fewer than the minimum annual hours of instruction to this student and other children with disabilities are based upon child-specific data related to the child's educational needs. The district should convene an IEP team meeting to determine whether the student needs additional educational services to compensate for the period from March 15, 1999 to the end of the 1998-99 school year.

The CAP shall include the activities the district will undertake to implement the directives, the personnel responsible for each activity, the date by which each activity will be completed, and the type of documentation that will be submitted to the department as evidence of completion of each activity. If a CAP requires the district to develop one or more products, the district may submit the product(s) as part of the corrective action plan. The CAP will be reviewed and the district will be informed if any revisions are required. The district will implement the CAP after the department has approved it.

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This concludes our investigation of this complaint. This letter is not intended, and should not be construed, to cover any other issues regarding compliance with the IDEA or Chapter 115, Wisconsin Statutes, which may exist and which are not specifically discussed herein. Under the Wisconsin public records law, ss. 19.31-19.39, Wisconsin Statutes, it may be necessary to release this document and related correspondence and records upon request.

signed JSP
6/25/99
_______________________________________________
Juanita S. Pawlisch, Ph.D., Assistant Superintendent
Division for Learning Support: Equity and Advocacy

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