On January 19, 2000, the Department of Public Instruction (DPI) received a request for due process hearing under Subchapter V, Chapter 115, Wis. Stats., and the Individuals with Disabilities Education Act (IDEA).

Pursuant to due notice a prehearing conference was held on January 27, 2000, and the matter was set for hearing on February 21, 2000.

Pursuant to due notice hearing was held at Richland Center, Wisconsin on February 21, 2000, Jeffrey D. Boldt, administrative law judge (the ALJ) presiding. The hearing was continued on Friday, February 25, 2000 in Madison, Wisconsin. The parties submitted written briefs, the last of which was received March 2, 2000.

The PARTIES to this proceeding are:

1. [Student] (the Student) is a juvenile, dob: xxxxxx, who currently resides xxxx, Richland Center, Wisconsin, 53581. This residence is served by the Richland 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 he was in the second grade.

3. The Student is currently a senior at Richland Center High School.

4. Given his disability, the Student has received special education pursuant to a number of Individualized Education Programs (IEPs). The most recent IEP was developed for the Student in May, 1999 and implemented at the beginning of the 1999-2000 school year. (Ex. 9) The Student's primary needs are in relation to reading skills.

5. On January 10, 2000, a Notice of Pupil Expulsion Hearing relating to the Student was prepared by District Superintendent Rachel Schultz. (Ex. 6)

6. On January 17, 2000, the Student's IEP team met to conduct a manifestation determination. The team members concluded that the acts of misconduct which gave rise to the Notice of Pupil Expulsion Hearing were not related to the Student's disability. (Ex. 5)

7. A formal request for due process hearing was submitted to the DPI on January 19, 2000, contesting the IEP team's conclusion that the behavior which gave rise to the expulsion was not a manifestation of the Student's disability.

8. On January 24, 2000, the Richland Board of Education (the Board) conducted an expulsion hearing. On January 28, 2000, the Board voted to expel the Student from the school district until the beginning of the 2001/2002 school year. However, the Board suspended implementation of the expulsion order until the instant hearing concerning review of the manifestation determination was resolved. (Ex. 8)

9. The behavior which gave rise to the expulsion hearing and related manifestation determination occurred on November 12, 1999. Four Richland High School students, including the Student as identified above, were involved in acts of vandalism on the grounds of the Akan School and the Washington School. Both of these schools are elementary schools located within the boundaries of the Richland School District. The schools are some miles apart, and the record indicated it would take about fifteen minutes to drive from one school to the other. There was considerable damage done to both schools. (Ex. 1-2)

10. The Student admitted to a role in the acts of vandalism. Specifically, he gave a statement to police indicating that he had driven two other individuals to the schools which were vandalized. (Ex. 2) Based upon statement's made by other participants, there is some reason to believe the Student's participation extended beyond merely driving the car facilitating the vandalism. (TR, p. 447) However, the exact involvement of the Student is not clear from the record.

11. The Student asserts that the District violated the requirement that the manifestation determination review be held within ten days of the decision to expel him. The Student argues that the decision to expel was made during a December 14, 1999, meeting between the Student, Tom Shields, Ken Ogi and Tom Killian. Tom Shields was the only one that spoke. (TR, p. 36) Shields told the Student that the matter he was talking to the Student about was very serious and could result in expulsion. (TR, p. 34-35) Shields did not tell the Student that, in fact, he was going to be recommended for expulsion from the District. (TR, p. 36) Rather, Shields told the Student that he was "thinking" about expelling the Student, as the Student's own testimony confirmed. (TR, p. 340)

    Further, only the District Administrator, Ms. Rachel Schultz, had authority to go forward with an expulsion. (TR, p. 79; 103)

    A clear preponderance of the evidence demonstrates that the District's decision to proceed with expulsion was made on January 10, 2000. Accordingly, the District's January 17, 2000, manifestation determination complied with the ten day rule of 34 C.F. R. sec. 300.523(a)(2).

12. At the manifestation determination review conducted by the District on January 17, 2000, "the extent and exact nature of [Student]'s involvement" in the school vandalism "was not established." (Ex. 5) However, the District review properly concluded that the Student was a participant in the episode. At the manifestation determination, the mother brought up concerns about possible Attention Deficit Disorder (ADD) that were mentioned in the Student's 8^th grade evaluation. (Ex. 5) The review summary stated as follows:

    "(The mother) added emphasis to the reports found in the records, that suggest ADD or ADHD type behavior. Short attention, impulsive, distractible, disorganized, poor memory, etc., were all noted behaviors which could be used to argue that [Student] may have been under this type of influence. It was recalled to the group that there is, at this time, one identified handicap, of Learning Disability to be considered. Additional handicapping conditions, if they were to be considered, would have to be a separate determination. However, the group was cognizant of this additional influence, i.e., the ADHD behavior list." (Ex. 5)

13. All of the expert testimony supports the Board's determination that the behavior subject to disclipinary action was not a manifestation of the child's status as learning disabled. Paul Pedersen, Richland School District School Psychologist testified that he could not imagine a scenario in which driving from one school that was vandalized to another school from fifteen minutes away could be a manifestation of a reading learning disability. The Student's expert, Dr. Sandra Eisemann concurred, opining that frustrations relating to reading problems are unlikely to give rise to participation in the vandalism described above. (TR, p. 398)

14. At hearing, as well as in the request for the due process hearing, the Student's mother, [Mother] (the mother), asserted that the Student suffered from previously undiagnosed disabilities. Specifically, the mother stated that the Student had ADD and/or ADHD and that he suffered from a mood disorder and would likely therefore qualify as an other health impaired (OHI) and/or Emotionally Disturbed (ED) Student.

15. When the Student was in 8^th grade, a re-evaluation was conducted of the Student by RSD. During that evaluation, it was noted that the Student exhibited numerous signs which would indicate he may have an additional disability of ADD. (Ex. 11) An Achenbach socio-emotional scale was completed by the Student and his teachers. There were also references in teacher reports that the Student needs to listen better, lacks motivation, irritates his peers, tunes out, and disrupts with very inappropriate behavior. (Ex. 11, p. 11; 16) Despite these concerns, the only information provided to the mother regarding ADD was in one sentence statement in the M-team summary that she should have the Student evaluated for ADD. (Ex. 11, p. 3) No formal contact was made with her to suggest that the RSD would further evaluate the Student to determine whether he qualified for special education due to the possible ADD diagnosis. (Ex. 11, p. 1; TR, p. 300)

    The Student entered high school and continued to experience behavioral problems and truancy issues which led to at least 54 behavioral referrals. (Ex. 4) The District was aware of the Student's behavioral problems and in fact later used the fact that he had such a high number of referrals when asked by the police for a list of student who could have been responsible for the vandalism which occurred in November, 1999. (TR, p. 126; 140) The mother was unaware of a large number of these referrals until Mr. Killian, the assistant principal, presented them to the RSD school board at the Student's expulsion hearing. (TR, p. 334)

16. The Division continued the hearing to Friday, February 25, 2000, to allow the Student to develop a record related to the possible previously undiagnosed disabilities. Psychologist Sandra E. Eisemann testified on behalf of the Student. Dr. Eisemann has diagnosed the Student with ADD and dysthymia, a mood disorder akin to depression. (TR, p. 357) She verified her diagnosis with a clinical psychiatrist, Dr. David Crawford. (TR, p. 366) Dr. Eisemann indicated that the Student is currently receiving the anti-depressant medication Zoloff as a result of the above-described diagnosis. Dr. Eisemann's evaluation consisted of a review of multiple school records including the 8^th grade evaluation and school discipline reports. (TR, p. 359-361) She also interviewed the Student's mother to develop a history. (TR, p. 362-363) Dr. Eisemann stated symptoms of this disorder were present as early as 2^nd grade and noted indicative behaviors in the 8^th grade evaluation. (TR, p. 362; 365) A clear preponderance of the evidence demonstrates that the Student has ADD and a Mood disorder. Given the evaluation of Dr. Eisemann, it is likely that the Student qualifies as a "child with a disability" due to "other health impaired" (OHI) and, possibly, "emotional disturbance." (ED)

17. Dr. Eisemann opined that the Student knew the consequences of his behavior, despite the ADD and mood disorder. (TR, p. 393-394) However, Dr. Eisemann testified that the behavior of driving vandals from school to school was a manifestation of both ADD and the Student's mood disorder. Specifically, both ADD and dysthymia made the Student chemically attracted to risk-taking, thrill-seeking behavior. (TR, pp. 393-394) Further, Dr. Eisemann opined that the student had difficulty controlling his behaviors due to ADD related symptoms of impulsivity, and related bad decision-making. Dr. Eisemann opined that the chemically driven impulsivity could last for a considerable period of time. Because of the way ADD impacts ". . . the way they process the information in the brain . . . it's very gratifying to be involved in exciting activities, so it can last for hours." (TR, p. 394) Further, both Dr. Eisemann and District School Psychologist Pedersen opined that if the Student were more directly involved in the vandalism (i.e. beyond just driving the car), that it made it even more likely that it was a manifestation of ADD. (TR, p. 393; 431-432) Accordingly, the District has not "demonstrated" that the Student's disability did not "impair the ability of the Student to control the behavior subject to the disciplinary action." (TR, p. 371)

The Student argues that the District failed to meet the requirement to hold a manifestation determination review within ten days of the notice of expulsion. However, the District fully complied with this provision, and prudently delayed implementation of the expulsion pending the outcome of this hearing. Any oral suggestion that expulsion was possible, or even likely, does not constitute a "decision" to expel the Student within the meaning of 34 C.F.R. sec. 300.523(a)(2).

The District demonstrated that the Student’s participation in the vandalism was not a manifestation of his learning disability. However, the Student provided largely unrebutted testimony that the Student has also suffered from previously-undiagnosed ADD and a depressive mood disorder for an extended period of time. Further, the Student’s treating clinical psychologist testified that the behavior which gave rise to the disciplinary action was a manifestation of the untreated mood disorder and of impulsivity related to ADD.

Accordingly, this case turns in part on whether review of a manifestation determination is a de novo review or limited to the facts considered by the multidisciplinary review team. Section 1415(k)(6)(B)(i) provides as follows: "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)". On its face, this language does not restrict the hearing officer to consider only such information as was originally considered by the manifestation determination review team.

Further, the District and the mother were both made aware of the possibility of an ADD diagnosis when the Student was in 8^th grade. Neither the mother nor the District followed through on this possibility, and the Student received no treatment. At present, the District has not demonstrated that the ADD and mood disorder did not impair the Student's ability to control his behavior.

The District argues that the testimony of Dr. Eisemann does not establish that the Student qualifies as OHI or ED within the meaning of Chapter 115, Wis. Stats. The District is correct that a diagnosis of ADD and a depressive mood disorder do not, in themselves, establish that the student is a "child with a disability."

The District cites 34 C.F.R. sec. 300.7(c)(9), which provides as follows:

However, the record in this case makes it likely that the untreated ADD and mood disorder had a direct impact on the Student's educational performance. The 8^th grade re-evaluation, as Dr. Eisemann testified, noted problems listening, disruptive behavior and other indications that the ADD adversely affected the Student's educational performance. Further, the lengthy disciplinary file of the Student, which the District noted in giving the Student's name to the local police, also supports the strong inference that the Student's untreated ADD and mood disorder had a detrimental impact upon his educational performance.

The District argues that Dr. Eisemann's diagnosis does not square with the Diagnostic and Statistical Manual of Mental Disorders (4^th ed. 1994) (DMS-4) Specifically, although Dr. Eisemann attributed the Student's "impulsivity" to his ADD, the DSM-4 locates impulsivity under the hyperactivity category. (Ex. 14) However, Dr. Eisemann was the only clinical psychologist who testified. She has been clinically practicing for 26 years, with a special concentration in the problems of children and adolescents. (TR, p. 355) The ALJ found her testimony credible and persuasive. The child was placed upon a powerful psychotropic medication as a result of a consultation with a psychiatrist working with Dr. Eisemann. Under these circumstances, there is every reason to give strong weight to Dr. Eisemann's opinion, which was not rebutted as it relates to the mood disorder.

Further, the District has the burden of "demonstrating" that the behavior that gave rise to the disciplinary action was not a manifestation of the Student's disabilities. The record did not show that the ADD and depressive mood disorder "caused" the Student to participate in the disgusting acts of vandalism at the two elementary schools. Rather, the District failed to carry its burden to demonstrate that the behavior subject to the discipline was not a manifestation of the ADD and depression. There was every indication that the Student knew the consequences and impact of his behavior. However, the testimony of Dr. Eisemann was convincing that his untreated ADD and dysthymia "impaired" the Student's "ability to control" his behavior within the meaning of sec. 20 U.S.C. 1415(k)(4)(c)ii. As she put it, "This is an ill child, and I think he was ill from two points of view and it led to this behavior." (TR, p. 391)

In fairness to the District, at the time of the manifestation determination, the Student’s ADD and mood disorder were unknown and not forcefully raised. But on the record currently before the Division, the expulsion must be set aside.

1. The Division of Hearings and Appeals has authority to hear due process hearing requests related to 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 for 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. The District has not carried its burden of demonstrating that the behavior which gave rise to the disciplinary action was not a manifestation of the child’s previously undiagnosed disability of ADD and emotional disturbance.

6. 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 only if . . . " after … the hearing officer

   (i) first considers, in terms of the behavior subject to disciplinary action, all relevant information, including - - -

   
   (I) evaluation and diagnostic results, including such results or other relevant information supplied by the parents of the child;
   (II) observations of the child; and
   (III) the child’s IEP and placement; and
   (ii) then determines that ---
   (I) in relationship to the behavior subject to disciplinary action, the child’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:
   (II) the child’s disability did not impair the ability of the child to understand the impact and consequences of the behavior subject to disciplinary action; and
   (III) the child’s disability did not impair the ability of the child to control the behavior subject to disciplinary action.
   Sec. 20 U.S.C. 1415(k)(4)(c)(ii) and 34 C.F.R. 300.523.

7. The District did not have before it all "relevant information" relating to the Student's disabilities at the time of the manifestation determination review. (Id.) Specifically, the District was unaware of his diagnosis of ADD and a depressive mood disorder that likely had an impact on both his educational performance and the behavior giving rise to the disciplinary action.

8. The District has not "demonstrated" that the Student's ADD and mood disorder "did not impair the ability of the child to control the behavior subject to the disciplinary action." (Id.)

9. This decision is timely because it was issued within 45 days of the request for hearing. 34 C.F.R. 300.528.

Dated at Madison, Wisconsin on March 3, 2000.