The parties to this proceeding are:

BACKGROUND

On May 26, 2000, the Wisconsin Department of Public Instruction received a request for a due process hearing under Subchapter V, Chapter 115, Wis. Stats. from the Parent of [Student] (Student), a child with a disability residing in the Portage School District. In her request, the Parent alleged that the Portage School District (District) had denied her son a free and appropriate public education (FAPE) by failing to provide and implement an Individualized Education Plan (IEP), failing to notify her of her rights and responsibilities, and failing to refer her son for an evaluation and inform her of the referral process. (Request for Due Process Hearing, pg. 1)

The Parent noted in the Request for a Due Process Hearing that the child, although living in the Portage School District, was actually a student in the Poynette School District during the 1999-2000 school year.

As a remedy, the Parent sought a valid IEP constructed with the Portage School District to allow for her son’s return and implementation of policies that provide for more parent awareness of the evaluation and hearing process. The parent sought help to "right this wrong" as they "went through [a] living hell at Portage School".

A pre-hearing teleconference was noticed and held on June 20, 2000. At that time, a request was heard for pre-hearing motions and a deadline for pre-hearing motions was set for June 30, 2000 with responses to any motions due by July 11, 2000. In addition, hearing and briefing schedules were set and the decision date was extended from July 10, 2000 to September 12, 2000 upon request of the parties and to accommodate the motion schedule. The scheduled hearing date of August 17, 2000 was later cancelled.

On June 30, 2000, the District filed a motion to dismiss and gave three arguments for dismissal. The District first argued the proceeding was moot as the Student had a valid IEP in the Poynette School District that the student elected to attend through Wisconsin’s open enrollment policy. The District further maintained the proceeding was barred due to the one-year statute of limitations found in Wis. Stats. § 115.80(1) and it declared that the relief sought – some broad prescription for all students – was not available to a hearing officer.

The Parent’s response was delayed when her attorney notified the Administrative Law Judge on July 10, 2000 that he did not have a valid law license and would not be able to provide a response by the July 11, 2000 deadline. An extension to July 28, 2000 was granted at a conference call held on July 11, 2000. The Parent filed a timely response on July 28, 2000.

The response admitted that the student was currently attending Poynette schools through the open enrollment alternative, but that the child still lived in the Portage School District. The Parent argued that the Portage School District is ultimately responsible for the student’s education and that she wanted to return the student to the Portage School District. She stated that the relief she seeks from Portage is a new IEP for her son.

Can a student who voluntarily switches public schools from his residency school to another school through Wisconsin’s open enrollment option, still have a valid claim against the old resident school when he has a valid IEP from his new school district?

The Student was a nonresident student of the Poynette School District as he was one of three students from the Portage School District to seek enrollment in the Poynette School District during the 1998-1999 school year, (District’s Exhibit C). Although not a resident of the Poynette School District, the student attended this school under the provisions of Wis. Stats. § 118.51(2) (1997-98) noted below:

Section (3) of this statute lays out extensive application requirements that parents must navigate in order for their children to move between school districts and Section (5) notes the permissible acceptance criteria. Permissible acceptance criteria are the availability of special education programs and services identified in the child’s IEP,Wis.Stats § 118.51(5)(a)(6), and whether the child has been referred and evaluated for special education services, Wis. Stats. § 118.51(a)(5)(6). Once enrolled, a student in a nonresident school district has "all the rights and privileges of pupils residing in that school district and is subject to the same rules and regulations as pupils residing in that school district." Wis. Stats. § 118.51(13).

In addition, Wis. Stats. § 118.51(12) notes that:

What is clear from all these statutory provisions is that the Wisconsin Legislature has clearly established an alternative to resident public school by allowing students to pursue and to receive similar programs at nonresident public schools. While a local education authority (LEA) is usually the resident school district, there are exceptions such as this open enrollment option, Wis. Stats. § 115.76(10).

It is further evident that the Legislature had an expectation that some students that seek this alternative would be children with disabilities and require special services. It provided measures to protect nonresident public school districts from the undiscovered but necessary costs and arrangements of providing special education services.

If a nonresident school district has all these statutory protections, why wouldn’t it be responsible for the provision of a FAPE? Why would the resident school district be responsible for the provision of a FAPE through an IEP that it neither constructed nor implemented?

Clearly, the Legislature intended the responsibility to provide a FAPE to flow to the nonresident school districts for children with disabilities enrolled under the open enrollment provisions found in Wis. Stats. 118.51. By labeling nonresident school districts as an appropriate LEA, the responsibilities given to these districts, like those found in Wis. Stats. § 115.77(1m)(b) are transferred with the label. That is why the Legislature instituted protections, so that this responsibility could be returned to the resident school district under certain circumstances. The provision of a FAPE is the core responsibility of school districts in constructing an educational program for the child. The Legislature intended this responsibility to be transferred with the child to the implementing LEA.

In the instant case, the Student’s due process claim is made against an improper party, the Portage School District. The Portage School District is not the LEA responsible for providing a FAPE, the Poynette School District is. Moreover, Poynette has constructed an IEP that has not been contested by the parent so the appropriate assumption is that an educational program reasonably constructed to provide an educational benefit is being provided. There is nothing before us to correct. There is no justiciable controversy as no valid IEP is contested. If anything has gone wrong, it has been corrected with the change in school districts, a satisfactory IEP and an implementation. The instant request for a due process hearing is moot.

By accepting the Student, the Poynette School District is responsible for providing FAPE. If the Parent has a problem with the Poynette School District’s provision of a FAPE for her son, a due process hearing request could be heard.

If the Parent wants to return her son to the Portage School District, she can make the necessary arrangements to reenroll her son and participate in a renewed IEP process. Dealing with this in some sort of "preemptive" manner is inappropriate, as any controversy is not ripe for adjudication.

Other authority also confirms this opinion. The District cited a DPI Update Bulletin that interpreted the open enrollment statute as requiring the nonresident school district to provide a FAPE. (Question 7, DPI Update Bulletin No. 99.01, February 1999) (District’s Exhibit B)

The 8^th Circuit also recently confirmed this opinion when it interpreted Minnesota law and stated:

As an opinion is reached on the mootness claim in the District’s favor, the statute of limitations and remedy claims it filed are not addressed.

WHEREFORE IT IS HEREBY ORDERED, that the Due Process Hearing Request for [Student] v. Portage School District, LEA 00-023 is dismissed with prejudice.

Dated at Madison, Wisconsin on August 22, 2000.

NOTICE OF APPEAL RIGHTS