IDEA Complaint Decision 99-041

On May 27, 1999 (letter dated May 26, 1999), a complaint was filed with the Department of Public Instruction by XXXXX against the Kenosha Unified 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 documents submitted by the district and relevant education records of the child. Department staff spoke by telephone with the district's director of pupil services.

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ISSUE:

Did the district deny the complainant's son a free appropriate public education (FAPE) by repeatedly excluding him from school during the 1998-99 school year?

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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Individuals with Disabilities Education Act Amendments of 1997
Section. 615. Procedural Safeguards.

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(k) PLACEMENT IN ALTERNATIVE EDUCATIONAL SETTING--
(1) AUTHORITY OF SCHOOL PERSONNEL--
(A) School personnel under this section may order a change in the placement of a child with a disability --
(i) to an appropriate interim alternative educational setting, another setting, or suspension, for not more than 10 school days (to the extent such alternatives would be applied to children without disabilities) * * *

ADMINISTRATIVE AND JUDICIAL INTERPRETATIONS:

Initial Disciplinary Guidance Related to Removal of Children with Disabilities from their Current Education Placement for Ten School Days or Less, OSEP 97-7, September 19, 1997, Question 4

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QUESTION 4: Must educational services be continued during the removal of a child with a disability from his or her educational placement for ten school days or less?


ANSWER: No. The Department does not believe that it was the intent of Congress to require that FAPE be provided when a child is removed for ten school days or less during a given school year. However, there is nothing in the IDEA '97 that would prevent the provision of FAPE during this time.

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FINDINGS OF FACT:

This complaint concerns the education of a 12-year-old child with learning and emotional disabilities and attention deficit disorder with hyperactivity. At the time relevant to the complaint, the child was a fifth-grade student in the Kenosha Unified School District. The student received out of school suspensions on the following dates:

January 18, 1999
March 9 and 10, 1999
March 31, 1999
May 11, 12, 13, 14, and 17, 1999

The child was suspended for a total of nine days during the 1998-99 school year. None of the suspensions were for more than five consecutive days. He also received two in-school suspensions on October 19 and November 6, 1998. The child received special education services consistent with his IEP during both in-school suspensions.

The child's parents withdrew the child from the district on May 18, 1999, and the family moved out of the district.

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. Under state law, a child with a disability may be suspended for up to 5 days or for up to 10 consecutive days if a notice of expulsion has been sent to the child's parents. Under federal special education law, a district need not provide services to a child with a disability during a disciplinary removal for 10 school days or less in a given school year.

During the 1998-99 school year, the child was suspended out of school for nine days and in school for two days. Because the child received services consistent with his IEP during the in-school suspensions, they do not constitute suspensions under federal special education law. No suspension was for more than five consecutive school days. The suspensions did not violate state standards related to suspension or federal special education law. The complaint is not substantiated.

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This concludes our investigation of this complaint, and we are closing this complaint investigation. 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
9/9/99
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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