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IDEA Complaint Decision 23-072

On July 12, 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 issues, which are identified below, pertain to the period of time beginning July 12, 2022.

Whether the district properly responded to allegations of bullying regarding the student.

School districts have an obligation to ensure that a student with a disability who is the target of bullying behavior continues to receive a free appropriate public education (FAPE) in accordance with the student’s IEP. As part of its appropriate response to bullying, the district should convene a student’s IEP team to determine whether, due to the effects of bullying, a student’s needs have changed such that the IEP is no longer designed to provide FAPE. If the IEP is no longer designed to provide FAPE to a student, the IEP team must determine the extent additional or different special education or related services are needed to address the student’s individual needs and revise the IEP accordingly. 34 CFR § 300.323, Wis. Stat. § 115.787; Wis. Stat. § 115.78(2)(c); Wis. Stats. § 118.46; U.S. Office of Special Education and Rehabilitative Services (OSERS)

August 20, 2013, Dear Colleague Letter; U.S. Department of Education, Office of Civil Rights (OCR), Dear Colleague letter dated October 21, 2014.

The student’s record contains two instances during the 2022-23 school year that give rise to the complainant’s belief that bullying occurred. In September 2022, the student reported that another student used inappropriate language toward them during a playground incident and in December 2022, the student reported that they had been called names by students on the playground but could not recall what names they had been called. District staff investigated both of these incidents and determined they were not bullying as defined by the district’s anti-bullying policy. In interviews district staff reported that there were no other instances where the student, parent, or other school staff reported the student was being bullied between July 12, 2022 and July 23, 2023. Under the facts of this case, the district responded appropriately by investigating the bullying allegations, and an IEP team meeting was not warranted.


Whether the district properly developed the individualized education program (IEP) of a student with a disability regarding behavioral concerns.


School districts must provide a free appropriate public education (FAPE) to each student with a disability by developing a program that meets the student’s unique needs, documenting that program in the student’s IEP, and implementing the program as articulated. 34 CFR §300.324. IEP teams must consider whether the students behavior impedes their learning or that of others. If so, the IEP team must document the students behavioral needs and include positive behavioral interventions and supports to address those needs in the student’s IEP. 34 CFR § 300.324(a)(2).


The student’s IEP in effect at the beginning of the 2022-23 school year had been developed on January 17, 2022. An annual review of the student’s IEP occurred on January 9, 2023. The student’s IEP team determined the student's disability made it difficult for the student to maintain attention to tasks, adjust to changes in routines and socialize with fellow students. To address these needs the IEP specified 20 minutes of daily social skills instruction and breaks when the student was unable to calm and engage in expected behaviors. The district properly developed the student’s IEP regarding behavioral concerns.


Whether the district properly followed special education disciplinary procedures.

When a district decides to recommend a student with a disability be expelled for a violation of the code of student conduct, the parent and relevant members of the student’s IEP team must determine if the conduct in question was caused by or had a direct and substantial relationship to the student’s disability. 34 CFR § 300.530(e). If the parent and relevant IEP team members determine the conduct was a manifestation of the student’s disability, the district must return the student to the placement from which the student was removed, unless the parent and the district agree to change the placement as part of a behavioral intervention plan. 34 CFR § 300.530(f)(2). If a district believes that maintaining the current placement of the child is substantially likely to result in injury to the student or others the district may request an expedited due process hearing seeking an order to change the placement of the student to an appropriate interim alternative educational setting. 34 CFR § 300.532. Additionally, the U.S. Supreme Court has ruled that school districts may petition a court directly if they believe returning a student would likely result in injury to the student or others without exhausting other administrative remedies. Honig v. Doe, 484 U.S. 305 (1988).

On January 17, 2023, the student’s parent reported to school staff that the student had harmed a family pet. On March 7, 2023, the student submitted a writing assignment containing violent imagery. As a result of these two incidents, the district initiated a threat assessment of the student. The student was interviewed twice by school staff as part of the threat assessment. During the course of the interview, the student indicated that they had thoughts of harming two specific classmates. The district initially suspended the student and then issued an expulsion notice based on the statements the student made during the course of the threat assessment process. The district convened the student’s IEP team on April 10, 2023, and the IEP team determined the conduct in question was a manifestation of the student’s disability. The IEP team then determined the student would be placed at an offsite location for the remainder of the school year. The parent did not agree with this placement.

The discipline protections set out in the IDEA regulations are significant due process rights. The district asserts that it complied with the IDEA requirement to return the student to the placement from which they were removed following the manifestation determination as the new placement determined by the IEP team was not projected to be implemented until April 17, 2023. (The student did not attend school between April 10-17, 2023.) The district’s proposed interpretation of the clear directive contained in 34 CFR § 300.530(f)(2) would open a loophole in the manifestation determination process that would render the legally mandated discipline protections moot.

In this instance, following the determination that the behavior of concern was a manifestation of the student’s disability, the district had limited options: return the student immediately to placement from which they were removed, obtain the parents’ agreement to change the student’s placement, or request either an expedited due process hearing or petition circuit court to obtain an order for an interim alternative educational setting. In failing to avail itself of one of these options, the district did not properly follow special education disciplinary requirements.

Whether the district Improperly changed the student’s placement including shortening the student’s school day.

In Wisconsin, each student's IEP team determines the appropriate educational placement for the student. Wis. Stats. § 115.78 (2)(c). In determining the appropriate educational placement for a student, the IEP team must follow the least restrictive environment (LRE) requirements. The IEP team must ensure that the student is educated, to the maximum extent appropriate, with students who are not disabled. Special classes, separate schooling, or other removal from the regular education environment should only occur if education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily. A student's IEP team must determine the least restrictive environment for the student and document placement options considered and rejected and the reasons they were rejected. 34 CFR § 300.114.

It is only appropriate to shorten the length of the school day for a student with a disability if the student’s IEP team determines a shortened day is required to address the student’s unique, disability-related needs. This should be a very rare occurrence. Before deciding to shorten the student’s day, the IEP team must consider if there are other ways to meet the student’s needs. When a student’s school day is shortened, the student’s IEP must include an explanation of why the student’s disability-related needs require a shortened day, and a plan for the student’s return to school for a full day, including a plan to meet more frequently to review student data and determine whether the student is able to return to school full-time. The student should return to a full school day as soon as they are able, and under most circumstances, a shortened school day should be in place for a limited amount of time. Shortened school days may not be used to manage student behavior or as a means of discipline. 34 CFR § 300.116; DPI Special Education Information Update Bulletin 14.03.

Prior to the manifestation determination the student attended school full days and was only removed from the regular education environment 45 minutes per day for specially designed instruction, occasional breaks and for state and district-wide testing. The placement decision made on April 10, 2023, reduced the student’s school day to 120 minutes two-times per week at an off-site location. The team did not discuss or document why the student’s needs could not be met in the regular education environment with the use of additional supports and services. The team did not discuss or document why the student’s disability related needs required a shortened day. The district’s assertion that the student needed time to receive private mental health therapy does not demonstrate the student required a shortened day, rather it indicates the IEP team should have considered whether the student needed additional services as part of their IEP. The team did not discuss or document a plan for returning the student to full day instruction as soon as possible. The IEP team agreement to convene prior to the start of the new school year to discuss placement is not a plan to return the student to full day instruction as soon as possible.

Corrective Action

The district shall immediately return the student to full-day instruction in the school building they would normally attend if not disabled unless the district petitions the circuit for an order or files a due process hearing because it believes that returning the student is substantially likely to result in injury to the student or others, or the parent agrees to a different placement. Within 10 days of the date of this decision, the district shall convene the student’s IEP team to document the student’s placement, review and revise as appropriate the student’s functional behavioral assessment and behavior intervention plan, and determine the compensatory services to be provided to the student resulting from the inappropriate placement from April 10, 2023, through the end of the 2022-23 school year. The district shall provide the department a copy of the student’s IEP within five days of the date of the meeting.

Within five days of any manifestation determination completed by the district during the 2023-24 school year the district shall send to the department a copy of the manifestation determination and associated records.

All noncompliance identified above must be corrected as soon as possible but in no case, more than one year from the date of this decision. 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