Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

FINDINGS OF FACT, CONCLUSIONS OF LAW,
AND ORDER

The Parties to this proceeding are:

On September 25, 2000, the Department of Public Instruction received a request for a due process hearing under Subchapter V, Chapter 115, Wis. Stats., and the federal Individuals with Disabilities Education Act (IDEA), from the attorney for [Father] and [Mother] (the "Parents"), parents of [Student] (the "Student").

The parties have agreed that the only issue is whether or not the behavior of the Student on May 9, 2000 that resulted in his expulsion on June 27, 2000 was a manifestation of his disability.

The Parents seek a finding that the behavior of the Student that resulted in his expulsion on June 27, 2000 was a manifestation of his disability, that the Student should not be in an alternative school placement and that the expulsion order should be vacated. The requested relief is denied.

1. The Student is a juvenile, DOB: [XXXXXX], who currently resides at [Street,City,State, Zip]. This residence is served by the Lodi School District (the District).
2. The District has identified the Student as "a child with a disability" within the meaning of state and federal law. Specifically, the Student requires special education and related services by reasons of a learning disability. The Student has been receiving those services since his enrollment in the Early Childhood program in March of 1989.
3. The Student is currently a sophomore at Lodi High School.
4. Given his disability, the Student has received special education pursuant to a number of Individualized Education Programs (IEPs). For the 1999-2000 school year, an IEP was developed for the student in April of 1999 and implemented at the beginning of the 1999-2000 school year. (Respondent’s Exhibit 18)
5. The Student has diagnoses of type one Neurofibromatosis (NF), Attention Deficit Disorder (ADD) and Insomnia.
6. Dr. Francis Luyet diagnosed the Student with NF at the age of 2 months. (Hr’g Tr. at 365) The Student was diagnosed in middle school with ADD and is being treated by Dr. Wendy Coleman (Hr’g Tr. at 365) He is being treated by psychologist Thomas Moran for problems with behavioral and emotional functioning. (Deposition of Dr. Moran, p. 8)
7. NF is characterized by small tumors on or under the skin. Depending on where the tumors occur, they often result in learning disabilities and there are high rates of ADD present in children with NF. (Deposition of Dr. Moran, p. 18)
8. The student’s ADD is in the moderate range. (Deposition of Dr. Moran, pp. 21-22). Impulsivity is a characteristic of individuals with ADD. (Deposition of Dr. Moran, p. 32 and testimony of school psychologist, Josie Moore, Hr’g Tr. at 108)
9. The behavior, which gave rise to the expulsion hearing and related manifestation determination occurred on May 9, 2000. The behavior was possession of marijuana.
10. At 9:15 a.m. on May 9, 2000, [City] high school teacher, Shauna Wells, took the Student to see the assistant principal, Kim Amidon. Ms. Wells told Ms. Amidon that another student had reported that the Student had been bragging about being high and showed the other student marijuana pipe.
11. The Student emptied his pockets for Ms. Amidon and allowed her to search his locker and no marijuana pipe was found.
12. Ms. Amidon allowed the Student to return to class at passing time between the first and second blocks of classes, 9:30 to 9:40 a.m.
13. At 10:00 a.m., another student reported to Ms. Amidon that the Student had been showing other students a baggie of marijuana that he had hidden in his sock. The other student reported that the Student said he needed to get rid of the marijuana because he didn’t want to be caught with it.
14. After this report, Ms. Amidon contacted the principal, Ben Vogel at the school district office and also contacted both parents of the Student.
15. The Student’s father arrived at the high school at about 10:50 a.m. and was told of the situation. The Student was taken out of class and joined his father in the high school conference room.
16. Mr. Vogel arrived at the high school at about 11:00 a.m. and Ms. Amidon told Mr. Vogel, the Student and his father what the other student had reported about the Student possessing marijuana.
17. The Student denied that he was in possession of any plastic baggie.
18. Mr. Vogel suggested that they wait to search the Student’s locker until the lunch period was completed.
19. About 15 minutes into the lunch period, the Student said that he was thirsty and wanted to get a soda from his locker. Mr. Vogel escorted the student to his locker and waited one row of lockers away from the Student’s locker.
20. Mr. Vogel observed the Student pull something from the back of his locker and stuff it down the front of his pants and then grab his soda.
21. The Student told Mr. Vogel that he was ready to go, but that he needed to go to the bathroom first. Mr. Vogel asked the Student to go to the conference room first.
22. When they returned to the conference room, Mr. Vogel told the Student’s father that he observed the Student stuff something down the front of his pants and his father took out a plastic baggie containing a leafy substance from the front of the Student’s pants.
23. The Student said that he had no idea what was in the baggie and that another student had told him to hold the baggie for them.
24. The leafy substance in the baggie was tested by the Lodi police department and found to be marijuana.
25. Ms. Amidon later received reports from three other students that the Student was seen by a drainage ditch at the east side of the high school at 7:50 a.m. and gave a student identified as "H" $5. The students also reported that this same student, "H", gave the Student a baggie containing marijuana during the passing time of 9:30 a.m. to 9:40 a.m.
26. Possession of marijuana is a violation of Lodi High School code of conduct and a violation of the policy can lead to suspension and/or expulsion according to the 1999-2000 Student Handbook. (Petitioner’s Exhibit 8) The Parents were notified of this code of conduct. (Petitioner’s Exhibit 9)
27. After the incident of May 9, 2000, the Student was immediately suspended and placed in an alternative school in City Hall. The Student continued to attend the alternative school through the summer to complete his classes for his freshman year. The Student continued to attend the alternative school in the fall of the 2000-2001 school year up to the present time.
28. On May 16, 2000, the Student’s IEP team met to conduct a manifestation determination. The Student’s IEP met again to continue the manifestation determination on May 25, 2000. The team members concluded that the behavior of the Student, which gave rise to the disciplinary action, was not related to the Student’s disability. (Respondent’s Exhibit 8, pp. 17-19)
29. The manifestation determination held on May 16, 2000 was attended by the Student’s parents, Phyllis Greenberger, an advocate for the Student and Parents from the Wisconsin Coalition for Advocacy, a regular education teacher, Tina Pasciak, two special education teachers, Ardyce Piehl and Therese Dalton, an LEA representative and directory of student services, Dr. Anne Thompson, the school psychologist, Josie Moore and the assistant principal, Kim Amidon. (Respondent’s Exhibit 8, pp. 17-19)
30. The assistant principal, Kim Amidon, presented a report of the behavior of the Student from May 9, 2000 and she took no part in the decision of the manifestation determination.
31. The participants in the manifestation determination considered evaluation and diagnostic results of the Student, medical reports and information describing NF, ADD and insomnia, observations of the Student by teachers and parents and the Student’s IEP and placement. (Respondent’s Exhibit 8, pp. 20-21) They reviewed reports from the Student’s doctors and results of a special education re-evaluation from April 18, 1996 which showed that the Student’s intellectual functioning was in the borderline to low average range (IQ=79). (Respondent’s Exhibit 8, p. 20)
32. The participants also reviewed and considered a letter from Dr. Thomas Moran brought by the Student’s parents. (Respondent’s Exhibit 8, p. 26)
33. At the manifestation determination on May 25, 2000, all participants including the Parents agreed that in relationship to the behavior subject to the expulsion hearing of June 27, 2000, the Student’s IEP and placement were appropriate and the special education services, supplementary aids and services, and behavior intervention strategies were provided consistent with the child’s IEP and placement. (Respondent’s Exhibit 8, p. 23)
34. At the manifestation determination on May 25, 2000, all participants including the Parents agreed that the Student’s disability did not impair the ability of the student to understand the impact and consequences of the behavior subject to the expulsion hearing of June 27, 2000. (Respondent’s Exhibit 8, p. 24)
35. At the manifestation determination on May 25, 2000, the Student’s parents and the advocate for the Student and parents determined that the Student’s disability did impair his ability to control the behavior subject to the expulsion hearing of June 27, 2000. They felt that poor judgment is part of his disability and that he acted impulsively in this situation. They felt that his reasoning and judgment are impaired and that he could not control the behavior of May 9, 2000. (Respondent’s Exhibit 8, p. 24)
36. The remaining participants of the manifestation determination on May 25, 2000 agreed that the Student’s disability did not impair his ability to control his behavior subject to the expulsion hearing of June 27, 2000. They agreed that the Student had time to think about this behavior. They agreed that this was not an impulsive act because it took place over a long period of time and required forethought and planning. They determined that the Student demonstrated that he had control over this behavior as he took time to plan and think about his behavior and he had the cognitive skills necessary to control the behavior of May 9, 2000. They determined that he made a conscious decision to engage in this behavior and that he was not physically or mentally forced to engage in this behavior. They determined that the Student’s intellectual ability (Low Average) combined with observations made by school staff indicates that the Student has the ability to make appropriate decisions and has the ability to think through his decisions before acting.
37. On June 19, 2000, District Superintendent Charles Pursell prepared a Notice of Pupil Expulsion Hearing relating to the Student. (Respondent’s Exhibit 2)
38. On June 27, 2000, the Lodi Board of Education (the Board) conducted an expulsion hearing and the Board voted to expel the Student from the school district until the beginning of the fourth term of the 2000-2001 school year. However, the Board ordered that the Student could return to school at the beginning of the second semester of the 2000-2001 school year if he were to attend an approved counseling program twice a month from the date of the expulsion order, July 6, 2000, until the end of the first semester of the 2000-2001 school year.
39. The District’s superintendent agreed with the parents that the Student could still return to school at the beginning of the second semester of the 2000-2001 school year if he attended an approved counseling program once a month instead of twice a month. The Student has been attending approved counseling with Dr. Thomas Moran once every three weeks.
40. A formal request for a due process hearing was submitted to the DPI on September 25, 2000.

The Student argues that the District failed to carry its burden of proof because there was no evidence at the manifestation determination to determine that the Student’s disability did not "impair his ability" to control his behavior. The Student argues that the IEP team only used teacher observations and their own conjecture to conclude that the behavior had no relationship to impulsivity or the Student’s disability.

The Student relies on the testimony of Dr. Thomas Moran and his opinion that "if we define [the Student’s] disorder as having difficulty anticipating consequences, difficulty with judgment, difficulty with impulsivity, and difficulty seeing the connection between an act and the long-term consequences," then the behavior of May 9 was a manifestation of his disability. (Deposition of Dr. Moran, p. 43)

Dr. Moran also said that impulsivity and poor judgment were connected. He testified that judgment implied some degree of forethought and impulsivity contributes to poor judgment. (Deposition of Dr. Moran, p. 56) He agreed that the behavior as described in the incident report (Petitioner’s Exhibit 7, p. 25) given to the IEP team for the manifestation determination showed an amount of planning and denial, but he said that this behavior may have been the result of coercion, conning or manipulation by another student to cause the Student to act impulsively. (Dr. Moran’s deposition, p. 65-66)

However, there is no evidence in the record to show that the Student was coerced, conned or manipulated into possessing marijuana. There is ample evidence to show that the Student’s behavior took place over a long period of time, was not impulsive and took forethought and planning. The Student paid another student $5 at about 7:50 a.m. outside of the school building. The Student talked to other students about getting high on marijuana between 8:00 a.m. and 9:15 a.m. The Student received a baggie containing marijuana from the student he paid the $5 between 9:30 a.m. and 9:40 a.m. The Student told other students that he had the marijuana before 10:00 a.m. The Student tried to hide the marijuana from the principal and his father, he lied about possessing the marijuana and said that he didn’t know it was marijuana after 11:00 a.m.

Also, the Student is correct that the IEP team considered observations of the student by teachers. However, they also considered evaluation and diagnostic results of the Student and medical reports and information describing NF, ADD and insomnia. (Respondent’s Exhibit 8, p. 20) The school psychologist, Josie Moore, testified that the IEP team also considered test data from the past, information from the Student’s cumulative file that included past records, reports and testing. (Hr’g Tr., p. 102)

Dr. Moore testified that after reviewing all of the evaluations, diagnostic results, medical reports and hearing the observations of teachers, she determined that the Student’s disability did not impair his ability to understand the impact and consequences of his behavior or his ability to control his behavior of May 9, 2000. (Hr’g Tr., p. 100) She testified that she did not believe that the Student’s ADD was the cause of the behavior at all because it was not impulsive or had anything to do with difficulty with attention or concentration. (Hr’g Tr., p. 110)

For purposes of a review of a manifestation determination, a hearing officer may "determine that the behavior of the child was not a manifestation of such child’s disability on if . . ." after . . . the hearing officer

If the behavior subject to discipline was not a manifestation of the Student’s disability, the relevant disciplinary procedures applicable to students without disabilities may be applied to the student in the same manner as they would be applied to students without disabilities. 20 U.S.C. Sec. 1415(k)(5); Wis. Stat. Secs. 115.792(3)(b)(7), 120.13(1). Judgment shall be entered in favor of the School District when it has shown by a preponderance of the evidence that the student’s misconduct was not a manifestation of his disability. Richland School District v. Thomas P., No. 00-C-0139-X (W.D. Wis. 2000).

1. The Division of Hearings and Appeals has authority to hear due process hearing requests related to the Review of Manifestation Determinations pursuant to sec. 227.43(m), Wis. Stats. And 20 U.S.C. Sec. 1415(k)(6)(B)(I).
2. The Student identified above is "a child with a disability" needing "specially designed instruction" within the meaning of Chapter 115, Wis. Stats., specifically, both parties agree that the Student has "learning disabilities" within the meaning of sec. 115.76(5)(a)(10), Wis. Stats.
3. In reviewing a decision with respect to the manifestation determination, "the hearing officer shall determine whether the public agency has demonstrated that the child’s behavior was not a manifestation of the child’s disability consistent with the requirements of the statute." 20 U.S.C. Sec. 1415(k)(6)(B)(i); 34 C.F.R. Sec. 300.525(b)(1).
4. The District has carried its burden of demonstrating that the behavior, which gave rise to the disciplinary action, was not a manifestation of the child’s disability of learning disabled.
5. This decision is timely because it was issued within 45 days of the request for hearing. 34 C.F.R. 300.528.

WHEREFORE IT IS HEREBY ORDERED, that the request that the Student’s expulsion order should be vacated is denied because the behavior that gave rise to the expulsion order was not a manifestation of his disability.

Dated at Madison, Wisconsin on November 9, 2000.