FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

The Parties to this proceeding are:

[Student], by

Appleton Area School District, by

The Department of Public Instruction received a due process hearing request under Subchapter V, Chapter 115 Wis. Stats. from the Parents of [Student] (Parents), a twelve year old student enrolled in the Appleton Area School District (District) on June 12, 2000. Specifically, the Parents alleged a denial of a free and appropriate public education (FAPE) in contravention of the Individuals with Disabilities Education Act (IDEA) found in 20 USC § 1400 et seq.

A pre-hearing conference was scheduled and conducted on July 5, 2000 and an August hearing date effected. The Parents then obtained legal counsel, two more pre-hearing conferences were conducted on July 20, 2000 and July 28, 2000, and the previously scheduled hearing dates were changed to September to accommodate counsel’s schedule. These dates were later extinguished to give the parties time for settlement that proved unsuccessful. The hearing was finally held for three days on October 3, October 5, and October 18, 2000. The third day was scheduled at the hearing after the scope and depth of the hearing was determined.

Also at the hearing, a briefing schedule was ordered whereby post-hearing briefs would be due by November 6, 2000 and a final decision due by November 22, 2000. The post-hearing brief deadline was later extended to November 10, 2000.

1. [Student] (hereafter, the "student") is a twelve year-old child (DOB XXXXX) with severe cognitive disabilities and qualifies as a child with a disability under 34 CFR § 300.7. Her cognitive and functional skills are within the one-year to three-year old range due to a genetic disorder, Trisomy 4p. Specifically, she functions between the 12-23 month level in social, adaptive and cognitive domains, the 28-month level in receptive language skills and 12-month level in expressive language skills. Her academic achievement is several years below her chronological age (Exhibit D-19).

2. The student is not verbal. She communicates using hand motions unique to her. In an educational environment, she is dependent upon adults to communicate, to instruct her in a hand-over-hand instructional method, and to protect her from injury. She needs adults to help her eat, toilet and move between classrooms. She is easily distracted and can be distracting to other students in a regular classroom.

3. The student has received special education from the Appleton Area School District since she was three years old. (Exhibit D-9) For most of that time, she has attended Berry Elementary School although it was not her neighborhood school. She is bussed to Berry.

4. The student’s most recent Individualized Education Plan (IEP) required her to receive six hours of cognitively disabled (CD) programming a day, speech and language therapy for 30 minutes twice a week, specially designed physical education at the gym and at the Highlands Elementary School swimming pool, and four hours of physical therapy a month. (Exhibit D-19)

5. The student received the help of a classroom assistant and a CD licensed teacher, Ms. Sharyn Blum. She was partially included in the regular classroom setting at Berry but opportunities for additional inclusion were diminishing. (Tr. 153:25 - 155:8)

6. Over a period of years, the student was not reaching her goals and objectives included in her IEP. (Tr. 157:8 - 158:14)

7. The District operates four middle schools for children in grades seven and eight. The student’s IEP team recommended that she attend Einstein Middle School in the fall of the 2000-01 school year. (158:13-14; 218:22-220:8; 286:6-287:22)

This case presents a disagreement over the student’s educational placement for the 2000-01 school year. It also raises several underlying issues that IDEA can remedy, and some that it cannot. At the core, the Appleton Area School District argues that it has offered the student an appropriate educational placement for the 2000-01 school year at the Einstein Middle School (Einstein). It believes that this placement is the appropriate placement and complies with the free and appropriate public education requirement upon which IDEA is built.

The Parents disagree. They argue that Einstein Middle School is not appropriate because the nature of the education of cognitively disabled children at Einstein is not in the least restrictive environment in conformance with 34 CFR § 300.550(b)(1). They maintain that the District has not offered their daughter a placement that educates her with non-disabled children to the maximum extent appropriate. Instead, the Parents argue that their daughter should be educated at Madison Middle School (Madison) and a more integrated curriculum be constructed for her there. Since Madison is the neighborhood school, the parents also contend that the District has the burden to prove that the student cannot receive FAPE at that school.

The question of burden of proof in these IDEA cases is currently unguided by the 7th Circuit Court of Appeals. See T.H. v. Board of Educ. of Palatine Community Consolidated Sch. Dist., 30 IDELR 764. To the extent that authority exists, it generally provides that the party presenting an initial IEP has the burden to prove its sufficiency. In this case, the change in placement necessitates a change in the level of inclusion and therefore is treated as a new IEP. The District has the better access to information on the differing strengths of their schools. In fact, the Parents provided almost no probative information on the Einstein placement. The burden to carry forward and persuade is appropriately placed on the District. See Brian S. v. Paul L. Vance, et.al., 32 IDELR 69 (Dist. MD., March 15, 2000) The ultimate decision must be based on the preponderance of the evidence. See Wis. Stat. § 115.80(5)

The Parents claim that "[s]ince the proposed placement at Einstein Middle School, is not the least restrictive environment for [the student], the [District] has the burden to show that [she] cannot receive a free appropriate public education at Madison Middle School, her neighborhood school, and the least restrictive environment" (Parent Brief, pg. 4). This statement is tautological and rendered meaningless by arriving at a decision before the burden of proof is determined. I do not find the Parent’s argument persuasive and conclude that the District need only prove that its placement offer provides FAPE in the least restrictive environment. It is not the burden of the District to prove that its placement would be better, only that the District’s offer provides FAPE in the least restrictive environment.

The issues that run underneath this conflict over placement are no less contentious. Madison Middle School is the student’s neighborhood school. It is the recipient school for non-disabled children that attend Berry Elementary School, the student’s current placement. The parents oppose the Einstein Middle School placement because it is not her neighborhood school (13:18-22, Parent's Brief, pg. 3) and it separates their daughter from her friends. They argue it is not as close as possible to their daughter’s home as required under 34 CFR § 300.552(b)(3).

The neighborhood school preference is just that -- a preference to weigh in the appropriateness of a placement. Nothing in the statute or regulations requires a school district to in every instance place a child in the neighborhood school that he/she would attend if not handicapped. See Hudson v. Bloomfield Hills, 910 F.Supp. 1304 (1996). Hudson v. Bloomfield Hills, 25 IDELR 607, (6th Cir. 1996), Affirmed.

This preference points to a second issue however: Why would a school district incur the additional transportation costs of transporting a disabled child to a school three miles further away if it didn't have to? The answer to this question is in the way the Appleton Area School District has constructed the delivery of its special education program.

The Appleton Area School District offers a spectrum of special education opportunities at its four middle schools. It purposely develops strengths and varies the curricula in each school to service a different kind of special education student. Einstein Middle School is prepared to service severely cognitively disabled children like the student through the location of CD licensed staff and facilities. While cognitively disabled children attend Madison, the emphasis there is more inclusive.

This practice of segregating CD children based on perceived need has the potential of undermining the individualized nature of an educational offering just as a menu at a restaurant necessarily eliminates some type of food to be enjoyed. There is a risk that decision making is based on the school categories and not based on the individual educational needs of the child. There is a question whether a child's educational program is individually tailored under this scheme. It is also noted that this method will necessarily require some children not to be educated in their neighborhood school from time to time.

Einstein provides a high teacher-student ratio (56:5-16) focusing on functional skills and communication. Madison's program is both more integrated and advanced. It requires students to read (54:7-10), includes pullout classes and teaches life skills (55:3-16). It should also be noted that the student’s current placement at Berry Elementary has a substantial integration with non-disabled peers in the regular classroom.

The District is not merely seeking a continuation of an educational program in a different school. The District is seeking a less inclusive educational setting and must justify this change of course. It does so with two arguments: 1) the current level of inclusion is not working well for the student, and 2) the placement offered will necessarily provide more educational benefit to her.

First, the District noted that the student’s educational progress has been slow (157:9-158:14). This has been persistent in her failure to achieve her goals and objectives laid out in her Individualized Education Plan (IEP). She does not model her behavior on other children thus limiting the educational benefits of inclusion.

Second, the District purposely placed the student at Einstein and not at Madison because of her distractibility and her need for her to learn a communication system (52:1-18). This system requires intensive staff involvement like that found at Einstein in the District’s system.

In addition, the physical facilities may play a role for a child like this student, who travels at a slower gate. Einstein's physical plant has both wider hallways and a swimming pool for physical therapy purposes. Madison's physical plant, although closer to the student's home, has narrower hallways and is an older building with no swimming pool on site.

The final legal issue is one of transition. While the student is almost thirteen years old, the District is seeking this change in program and placement in order to provide more orderly transition services. Transition services are required to be provided at age 14 pursuant to 34 CFR § 300.347.

Services envisioned under 34 CFR § 300.29 are designed to transition a child to post-school adult living objectives. While the regulations do not mandate transition components in an IEP until age 14, the regulations allow for younger students to receive these services if approved by an IEP team. 34 CFR § 300.347(b)(1).

The Einstein program is designed to accommodate students "who are not progressing rapidly on a spectrum of independence" and teach more functional behaviors and address the issues associated with daily living activities. (District Brief, pg. 5) This emphasis reflects the student’s need to adjust to her daily living needs. It seems that the District is anticipating the student’s educational program beyond the 2000-01 school year. Given the slow progress that the student has shown over the last few years and the high bar of post-school adult living that the student’s educational program necessarily is seeking, this emphasis on transition seems prudent.

There are two views of this student. The District believes that she is easily distracted, is adult dependent and is in danger of injuring herself through a fall. The Parents believe that she is misunderstood because she has numerous friends both in and out of the classroom. The Parents believe that the District’s description of this student as reliant on adults and prone to injury is overstated. Extensive testimony was taken to this effect. This differing view of this student, both based on years of experience, has led these parties to believe in the different placement options that are appropriate. It should be noted that no witness offered by the Parents had ever witnessed the educational program offered at Einstein, with the exception of a furtive visit by the student’s mother for about an hour. These parties work with this student in their own contexts that are not easily related to the other party. I find that the unanimous opinion of this student’s educational providers to be persuasive in the delivery of her educational program, which is after all, the question we are answering here.

Upon review of the evidence, I find that the District has met its ultimate burden of proof. Weighing the student’s lack of progress over the last several years in an inclusive environment, the prudent pursuit of transition services, and the greater level of services, instruction and facilities at Einstein, it is clear that the Einstein placement was reasonably calculated and uniquely fashioned to provide an educational benefit. It provides the level of education with non-disabled peers to the maximum extent appropriate. This placement is unique and appropriate for this student, surmounting questions surrounding the District’s scheme for severely cognitively disabled student placement.

This choice admittedly comes at a cost. The Einstein placement requires a different transportation plan and limits the student’s association with her neighborhood friends. These friendships form the basis for the neighborhood preference. But given the student’s lack of progress in meeting her goals and objectives, a change in educational pursuit is called for. The need to make progress, or at least offer the best hope of progress, surmounts the neighborhood school preference.

Although Madison Middle School can provide a more inclusive educational placement, that placement would be inappropriate given the student’s lack of progress in the inclusive environment she enjoyed at Berry. Simply put, her education at Madison even with supplementary aids cannot be achieved satisfactorily. This factor justifies a less inclusive setting. See Monticello School District v. George L. et.al., 102 F.3d 895.

1. The Appleton Area School District provided an educational placement to [Student] that was the least restrictive environment and therefore a free and appropriate public education.

2. The Einstein Middle School is the appropriate educational placement for [Student].

It is hereby ordered that the due process proceeding in LEA 00-027 is hereby dismissed.

Dated at Madison, Wisconsin on February 20, 2001.