The PARTIES to this proceeding are:

On April 7, 2000, the Department of Public Instruction received a request for a due process hearing under Wis. Stat. Chap. 115 (1997-1998) and the Individuals with Disabilities Education Act (IDEA) from Attorney Lynn Zuehlsdorf-Mack, as attorney for Ms. [Student]. Milwaukee Public Schools (MPS) has filed a motion to dismiss the hearing request on the ground that it is time barred by the one-year limitations period of § 115.80(1)(a), Stats. (1997-98). The motion is denied.

Ms. [Student] had been a student in the Milwaukee Public Schools until June 1999, when MPS awarded her a regular high school diploma. Ms. [Student]'s date of birth is xxxxxx, so she had turned age eighteen at the beginning of the eleventh grade in xxxxx 1997, and was age nineteen when she graduated.

Ms. [Student] had never been determined to be a "child with a disability" [formerly known as a "child with exceptional educational needs"], and thus was never determined to be eligible for special education or related services under IDEA or subchapter V, Chapter 115, Wis. Stats.

MPS had, however, evaluated Ms. [Student] twice to determine whether she was a "child with exceptional educational needs" -- in June 1995 at age fifteen and in March 1991 at age eleven -- and each time determined that she was not. Ms. [Student]'s mother (Ms. [Mother], hereinafter referred to as the "Parent" or "mother"), received notice of her right as a parent to request a due process hearing challenging these separate determinations, and she did not request a hearing either time.

In her due process hearing request, Ms. [Student] claims through counsel that "she has been denied a free appropriate public education for many years." She asserts, in essence, that her high school diploma is a sham and should not have been awarded. She claims that she graduated with reading and language skills below the third grade level and with math skills at the fourth grade level. As relief, Ms. [Student] seeks evaluation by an "M-team" and continuation of her education "until she has attained the proficiencies to obtain her high school diploma or GED."

Ms. [Student] qualified for graduation by completing the requisite number of courses and by submitting passing "proficiency portfolios" in writing and mathematics. Submission of "proficiency portfolios" is an alternative method of qualifying for graduation, and is available to those students who have failed the mandatory "proficiency exams". Ms. [Student] claims her "proficiency portfolios" were deemed satisfactory only because teachers gave her undue assistance in preparing them.

The Parent avers in an affidavit that between April 6, 1999, and graduation in June 1999, she asked an official in the "Milwaukee School Board central office" to hold her daughter in school until age 21. The Parent also states she asked the official "about performing another M-team on [Student], but [the official] said they could not do so, because they had just done one in 1995."

MPS moves to dismiss the due process hearing request because it is time barred by the one-year limitations period of Wis. Stat. § 115.80(1)(a). In support of the motion, MPS has supplied affidavits with attached exhibits. Ms. [Student] has submitted affidavits in opposition to the motion.

Motions to dismiss are appropriately treated as motions for summary judgment when affidavits or other evidentiary material are considered. See Wis. Stat. § 802.06(2); Envirologix Corp. v. City of Waukesha, 192 Wis.2d 277, 287, 531 N.W.2d 357, 362 (Ct.App. 1995). Summary judgment may be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Wis. Stat. § 802.08(2). In passing on a motion for summary judgment, the facts must be viewed in the light most favorable to the nonmoving party, with any doubts regarding the facts being resolved against the moving party. State Bank of LaCrosse v. Elsen, 128 Wis.2d 508, 512, 383 N.W.2d 916 (Ct.App. 1986). "If a dispute concerning material facts exists or the material presented is subject to conflicting factual interpretations or inferences, summary judgment must be denied." Id.

Section 115.80(1)(a), Stats. (1997-98) establishes a one-year limitations period for requesting a due process hearing. This provision became effective on May 5, 1998. (Before this date, Wisconsin law provided no specific limitations period for due process hearing requests.) Section 115.80(1)(a) provides in pertinent part as follows:

When Ms. [Student] turned eighteen in xxxxx 1997, the right to request a due process hearing accrued to her by operation of Wis. Adm. Code § PI 11.16, which has since been rescinded. Former section PI 11.16(1) provided as follows:

Rights accrue to the child. … [W]here a child with EEN attains the age of 18 years, he or she shall have all the rights and responsibilities that were formerly provided to his or her parents under this subchapter.

Section 115.807, Stats. (1997-98), became effective on May 5, 1998, and provided for the transfer of rights from a parent to a child at age 18 in the same manner that former Wis. Adm. Code § PI 11.16 had done. Section 115.807, Stats. (1997-98), provides as follows:

Because Ms. [Student] has never been determined to be a "child with a disability", the provision in subparagraph (3) requiring a district to provide parent and adult child with notice of transfer of rights was not applicable, so MPS provided no such notice here.

The only event that could trigger a right to request a due process hearing under § 115.80(1)(a) under the facts alleged would involve MPS's "refusal … to initiate or change [the] child’s evaluation". The only averment of a refused evaluation is that of the Parent. There is no averment that Ms. [Student] had ever requested an evaluation herself.

If Ms. [Student] had then been under age 18, the Parent's averment would seem certainly to be sufficient to support a due process hearing request, even though the Parent’s averred request for re-evaluation was only oral. (There appears to be no requirement that such a request be made in writing in order for its refusal to support a due process hearing request.) Proper refusal of such an oral request by the Parent would have required MPS to provide the Parent with written notice of the refusal, which would have included a description of the right to challenge it in a due process hearing. Wis. Stat. § 115.792(1)(b); 34 C.F.R. § 300.503(a)(1)(ii). Alternatively, if MPS had agreed with the oral request and decided to conduct the requested evaluation, MPS would have been required to obtain the Parent's "informed consent" before proceeding with the evaluation. Wis. Stat. § 115.782(1); 34 C.F.R. § 300.505(a)(1)(i).

The situation here differs from the scenario just described only in that Ms. [Student] was an adult when her mother requested that she be re-evaluated. The question to be determined then is this: Is a school district obliged to respond to a parent's request that her adult child be re-evaluated, either by refusing the request in writing or agreeing with it and seeking to obtain the adult child's consent to perform the evaluation? Under the circumstances presented here, an adult student may rely upon the request of her parent to trigger the right to a due process hearing under § 115.80(1)(a). Accordingly, MPS's averred refusal to meet the Parent’s request for an evaluation is a sufficient triggering event to support her daughter's due process hearing request.

Under the transfer of rights statute, the District remained required to provide the Parent with all notices required by the IDEA and subchapter V, Chapter 115, Stats., despite the child's majority. Wis. Stat. § 115.807(1). Implicit in this notification requirement is that parents are entitled to participate in their adult child’s educational planning and program. Indeed, the record depicts the Parent continuing to be an active participant in her daughter’s educational program after she turned eighteen. The record further indicates that MPS properly acknowledged the Parent’s active role in her adult daughter’s education. Absent a clear expression from Ms. [Student] that she wished her mother not to have a voice in her educational program, MPS should have deemed the Parent’s request for a new evaluation as one made by and on behalf of her daughter. Further, by relying on her mother's action as support for her due process hearing request, Ms. [Student] confirms her support of the evaluation request.

Upon receipt of the Parent's request for the re-evaluation, MPS should have done one of two things. Upon deciding to refuse the request, MPS should have provided notice of the refusal to both the Parent and Ms. [Student] pursuant to Wis. Stat. §§ 115.807(1) and 115.792(1)(b). This written refusal would have included notice of the right to challenge it by requesting a due process hearing -- a right belonging to Ms [Student], not her mother. Alternatively, upon agreeing to act in conformance with the request, MPS should have sought to obtain Ms. [Student]'s consent under §§ 115.807(2) and 115.782(1), with notice to the Parent under § 115.807(1), Stats. If Ms. [Student] had refused to provide her consent then the matter would have ended there, unless MPS itself were then to have sought a due process hearing on the refusal. Wis. Stat. § 115.782(1)(b); 34 C.F.R. §300.505(b). If Ms. [Student] had given consent, then the evaluation would have been conducted with all appropriate procedural safeguards.

The facts here bear significant similarities to those in Elmbrook School District, LEA-97-022 (LEA Wis. 1997) [www.dpi.state.wi.us/dpi/dlsea/een/lea97022.html]. The hearing officer in Elmbrook ruled that the parents of an adult child could, along with the adult child, make a due process hearing request challenging the determination that the child did not have "exceptional educational needs". The hearing officer observed that the interests of the parent and child appeared to be aligned, and concluded that the purposes of the IDEA would be best served by allowing both the parents and student to pursue the due process hearing. The same rationale applies here with respect to the Parent's request that Ms. [Student] be re-evaluated, despite the fact that the primary right to seek such an evaluation belonged then to Ms. [Student], not the Parent.

If it is determined in this proceeding that Ms. [Student] would have consented to an evaluation and that such evaluation would have determined her to be a "child with a disability" then the granting of some form of relief may be appropriate, though not necessarily the relief Ms. [Student] has requested. See e.g., Bean v. Conway School District, 18 IDELR 65 (D.N.H. 1991); Puffer v. Reynolds, 17 EHLR 618 (D. Mass. 1988); Independent School District No. 281, 32 IDELR 49 (SEA Minn. 1999). Accordingly, the motion to dismiss is denied. However, MPS may reassert a motion to dismiss at an appropriate time if, for example, it believes that a preponderance of the evidence fails to establish the timeliness of the hearing request.

With respect to the timeliness of any challenge to the determinations in 1991 and 1995 that Ms. [Student] was not a "child with exceptional educational needs", such a challenge would be time barred even though these determinations predate the effective date of the one-year limitations period set forth in § 115.80(1)(a), Stats. See Nieuwenhuis v. Delavan-Darien School District, 27 IDELR 839 (E.D.Wis. 1998)(a three-year limitations period for an IDEA claim would frustrate the statutory goals and policies for a prompt resolution of educational disputes, and thus would not be allowable as a matter of federal law).

NOW, THEREFORE, IT IS HEREBY ORDERED that MPS's motion to dismiss is DENIED.

Dated at Milwaukee, Wisconsin, this 3rd day of July 2000.