Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

RULING AND ORDER

The Parties to this proceeding are:

On February 23, 2001, the Argyle School District (the District) filed a motion seeking an order to dismiss that portion of the due process hearing request in which [Student] (the Student) requested that the District "… reassign special education aides such that Chris Wenger does not work with the Student".

The motion included evidentiary materials attached as Exhibits A-G.

Motions to dismiss are appropriately treated as motions for summary judgment when evidentiary material is considered. See Wis. Stat. § 802.06(3); Envirologix Corp. v. City of Waukesha, 192 Wis.2d 277, 287, 531 N.W.2d 357, 362 (Ct. App. 1995). The grant of summary judgment is appropriate when the evidentiary material shows that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Moulas v. PBC Productions, Inc., 213 Wis.2d 406, 410, 570 N.W.2d 739 (Ct.App. 1997).

In ruling on a motion for summary judgment, the standard methodology requires examination of the complaint to determine whether it states a claim and then the answer to determine whether it presents a material issue of fact. See Jones v. Dane County, 195 Wis.2d 892d, 912, 537 N.W.2d 74, 79 (Wis. Ct. App. 1995). If each does, we then examine the documents offered by the moving party to determine whether that party has established a prima facie case for summary judgment. See id. If it has, we look to the opposing party’s documents to determine whether any material facts are in dispute, which would entitle the opposing party to a trial. See id.

The District argues that, as a matter of law, the request that Chris Wenger-Larson not work with [Student], is not a claim upon which relief can be granted under either the IDEA or Chapter 115 of the Wisconsin Statutes. The District argues that Chapter 115 limits the remedies that the hearing officer may grant. According to the statutes, "a hearing officer has authority to issue an order consistent with [subchapter V of chapter 115] and 20 U.S.C. § 1415(k), and to order whatever remedy is reasonably necessary to bring the parties into compliance with [subchapter V of Chapter 115]". Wis. Stat. § 115.80(5). The District argues that its refusal to reassign the aides as the Parents requested is not a violation of any portion of the IDEA or Chapter 115, and that no remedy is available to the Parents.

The central issue in this case relates to whether the District has provided a Free Appropriate Public Education (FAPE) to the Student. The determination of when FAPE has been met is a two-fold inquiry: First, [whether the school district] … has complied with the procedures noted in the Act … and second, [whether] … the educational program developed through the Act’s procedures was reasonably calculated to enable the child to receive educational benefits. Board of Educ. Of Hendrick Hudson Central Sch. Dist. V. Rowley, 458 U.S. 176, 206-07 (1982)

As the District argues, there is a presumption that a parent does not have the right to dictate educational personnel or specific programs. Zachman v. Illinois State Board, 852 290 F.2d (7^th Cir. 1988)

However, paramount is "finding a program which will be of educational benefit to the child." Board of Educ.of Sch. Dist. 21 v. Illinois State Board of Educ. , 938 F.2d 712, (7^th Cir. 1991),Cert denied, 502 U.S. 1066 (1992) In the above case, the Seventh Circuit found that the placement offered by the school district was unlikely to succeed in the face of parental objections which had poisoned the child’s attitude toward a program.

Absent a more complete record to be developed at hearing, there is insufficient information to determine what impact working with the aide in question has on the education of [Student]. Accordingly, the Motion to Dismiss must be denied.

WHEREFORE, IT IS HEREBY ORDERED, that the District’s Motion to Dismiss be denied without prejudice.

Dated at Madison, Wisconsin on May 10, 2001.