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Before The
FINDINGS OF FACT, CONCLUSIONS OF LAW,
The Parties to this proceeding are: Hale's Legal Services P.O. Box 114 Baraboo, WI 53913-0114 Poynette School District, by Lathrop & Clark P.O. Box 1507 Madison, WI 53701-1507 PROCEDURAL BACKROUND On March 22, 2001, the Department of Public Instruction received a request for a due process hearing under Wis. Stat. Ch. 115 (1997-98) and the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1400, et seq. Pre-hearing conferences were held on April 13 and 26, 2001 and June 21, 2001. Prior to a hearing being conducted, both parties agreed to address the District’s motion to dismiss. By agreement of both parties, the date for the issuance of a final decision was extended to October 6, 2001. There are two issues in this case:
Based upon the entire record and arguments in this case, this is the final decision and order of the undersigned Administrative Law Judge. FINDINGS OF FACT
DISCUSSION The ultimate issue is whether the District denied the Student a free appropriate public education (FAPE) pursuant to IDEA and Chapter 115, Wis. Stats. The Student argues that FAPE was denied based on the District’s action or inaction that caused his removal from school and confinement in jail with the resulting loss of school time and the expenditure of money due to this action in the criminal justice system. The Student argues that a LEA must ensure that special education and related services, including specific strategies and interventions to address inappropriate behavior, are provided consistent with a child's IEP. Specifically, the Student points to Wisconsin Statutes, Section 115.787(3)(b), which states that the IEP team "shall do all of the following: 1. In the case of a child whose behavior impedes his or her learning or that of others consider, when appropriate, strategies, including positive behavioral interventions, and supports to address that behavior." In addition, 34 CFR 300 Appendix C, requires that the IEP of each child with a disability must include all services necessary to meet the child's identified special education and related services needs; and all services in the IEP must be provided in order for the agency to be in compliance with the Act. The Student concedes that 34 CFR 300.529(a) states that "[n]othing in this part... prevents State law enforcement and judicial authorities from exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with a disability." However, the Student argues that he did not commit a "crime". Swearing in frustration is not a crime. If it were, the number of people under judicial scrutiny would be outlandish. The District moves to dismiss the complaint for either of two reasons. First, the Amended Complaint does not state a claim upon which relief can be granted under IDEA. Second, because the Student has graduated with a regular education diploma and no remedy is available, the due process hearing petition should be dismissed on the grounds of mootness. The Student first argued that it would be inappropriate to grant a summary judgment because there is a genuine issue of material fact. The courts have discussed the use of summary judgment on several occasions, such as in Am Transportation v. Matarah Industries, ___ Wis.2d ___ (Ct.App. 2001): Under § 802.08(2), summary judgment must be entered, "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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." In reviewing the affidavits that were presented by each party, it is clear that there are some disputed material facts. Thus, it would not be appropriate to grant a summary judgment in this case. However, the District seeks a motion to dismiss, which is not the same as a summary judgment. The difference is that a motion to dismiss because an issue is moot is not based on the record. In Wis. Environmental Decade v. Public Service Comm., 79 Wis.2d 161 (1977), pages 171-72, the court states as follows: In Duel v. State Farm Mutual Automobile Insurance Co., 243 Wis. 172, 174-75, 9 N.W.2d 593 (1943), the court expressly held that a motion to dismiss for mootness cannot be considered a motion for summary judgment because the motions are different in character and raise different issues. A motion for summary judgment asks the trial court to determine if any fact issues exist to be tried and, if not, to decide the case on its merits. A motion to dismiss for mootness, on the other hand, does not involve the determination if there are any triable issues of fact and does not request a determination on the merits. When a case is dismissed because the issues therein have become moot, the rights of the parties are not adjudicated, and neither party is entitled to judgment. All that is involved when a case is dismissed upon the ground of mootness is a conclusion by the court that the determination sought cannot have any practical effect upon an existing controversy. City of Racine v. J.T. Enterprises of America, Inc., 64 Wis.2d 691, 700, 221 N.W.2d 869 (1974). The purpose of a dismissal for mootness is simply to prevent an unnecessary expenditure of time by the court and the parties. The appellant, in support of its position on this issue places great emphasis upon the fact a motion to dismiss for mootness, like a motion for summary judgment, generally raises matters outside the record. However, the matters raised by a motion to dismiss, unlike those raised by a motion for summary judgment, do not go to the merits of the case. Therefore, in a ch. 227 judicial review proceeding, a motion to dismiss upon the ground of mootness does not conflict with the general provision that the judicial review, which goes to the merits of the case, be confined to the record, while a motion for summary judgment accompanied by supporting affidavits does so conflict. Thus, I conclude that the District’s motion to dismiss is not a motion for summary judgement. The next question is whether there is merit to the District’s motion to dismiss. One key criteria is found in City of Racine v. J.T. Enterprises of America, Inc., 64 Wis.2d 691 (1974), which is cited by the Wis. Environmental Decade, supra. Again, it was reaffirmed that all that is involved when a case is dismissed upon the ground of mootness is a conclusion by the court that the determination sought cannot have any practical effect upon an existing controversy. In this case, the District is arguing that any determination that the ALJ can make will have no practical effect on this controversy. The Student, in neither the original petition for the hearing nor in the brief in opposition to the motion to dismiss, presents or proposes no outcome other than a finding that the District denied the Student FAPE. I do not believe that such a finding will have a practical effect or impact on this controversy. The Student argued that such a finding in and of itself would be a sufficient reason to hold a hearing. He cites a previous case decided by this Office, Case LEA 99-047. In that case, the ALJ found that "[a] dismissal of that case would deny the parents an opportunity to hear and cross-examine what happened to the student during the last year of his education." Further, "[a] dismissal would remove the school district’s behavior from any review. The IDEA does not provide for a selective review of alleged denials of FAPE." Finally, dismissing the case "…would prevent the hearing officer from finding equitable solutions." I do not find this argument persuasive. Even if it had precedential value, the decision in LEA-99-047 is factually quite different from the case at hand. In that case, the student was a ninth grader who would still be in the school district the following year. Further, the issue involved the parent’s request for reimbursement for the cost of care at Wyalusing. Thus, the parents were seeking an actual remedy, compensation. Finally, it was a problem that would very likely occur in the following academic year. None of this is true of the case at hand. The parents are seeking nothing but a finding and the Student will not be attending any district school in the future. In addition, there is no possibility for "equitable solutions" if there is no guidance as to what remedy is even requested. I cannot provide a meaningful solution when the parents themselves do not even suggest the parameters of what they want. As for the "selective review" of denials of FAPE, many due process hearing decisions have been dismissals, showing that it is permissible to not hold a hearing if there a legal basis. For example, in the decision Hot Springs School District at 31 IDHLR 250 at 7, (SEA Arkansas, December 15, 1999), the hearing officer in that case stated: In our case, any denial of entitled benefits is not "capable of repetition." The petitioner in our case has graduated and is no longer eligible for special education. Therefore, even if there is a likelihood that he may be taken again into police custody or come into contact with the police liaison officer, since the petitioner has graduated, he is no longer entitled to the benefits of IDEA and there is, thus, no "reasonable expectation" that the school authorities will re-inflict the same type of injury. In other words, the issue raised by the Amended Complaint will not again arise with this petitioner because of his graduation. The case is, therefore, moot.
In Hot Springs, the hearing officer did not dismiss the case based on mootness but the following discussion explains why and is still quite relevant as it pertains to special education due process proceedings: The test for mootness is whether there is still a case or controversy here. The question in this case is whether the conduct of the Juvenile Detention Facility about which the student originally complained is "capable of repetition, yet evading review." Honig v. Doe, 484 U.S. 305, 312, 108 S.Ct. 592, 600, 98 L. Ed. 2d 686, 703, EHLR 559:231 (1988) citing Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 1183, 71 L. Ed. 2d 353 (1982), and Roe v. Wade, 410 U.S. 113, 125 (1973). In Honig, one of the original plaintiffs was 24 years old and no longer entitled to the benefits of the Education of the Handicapped Act, the precursor of the Individuals with Disabilities Education Act. The Supreme Court found that the issues with regard to this plaintiff were moot because any denial of entitled benefits was not "capable of repetition." However, the remaining plaintiff was under 21 and still covered by the Act. With regard to him, the Supreme Court found that because of the child's continuing eligibility for services under the Act, the nature of his disability (because of which he exhibited disability-related aggressive, impulsive behavior), there was a reasonable expectation" that the same issue would again arise with that child. The real question, the Court said, is whether there is a "likelihood that... authorities will re-inflict a given injury" rather than a question of whether "the party seeking relief will repeat the type of misconduct that would once again place him or her at risk of that injury." Honig, 484 U.S. at 108 S. Ct. at 600, 98 L. Ed. 2d at 703. In the case at hand, there is no likelihood that the District will re-inflict any injury that has been alleged. Additionally, there has no request for any kind of compensation. (I also note that the District cited Independent Sch. Dist. No. 281, July 16, 1999, 32 IDELR 49, which stated: "See Letter to Richards, 17 EHLR 288 (OSEP 1990); Gorski v. Lynchburg School Board, 875 F.2d 315 (4th Cir. 1989); Cronin v. Board of Educ., 689 F.Supp. 197 (S.D.N.Y. 1988); Stock v. Massachusetts Hospital School, 467 N.E.2d 448 (1984), cert. denied, 474 U.S. 844 (1985). The obligation to make FAPE available to all children with disabilities does not apply with respect to students with disabilities who have graduated from high school with a regular high school diploma.") The Student also argued that at the very least, I have the right to make a declaratory judgment under s. 227.41, Wis. Stats. That statute states in part: (1) Any agency may, on petition by any interested person, issue a declaratory ruling with respect to the applicability to any person, property, or state of facts of any rule or statute enforced by it. Full opportunity for hearing shall be afforded to interested parties. A declaratory ruling shall bind the agency and all parties to the proceedings on the statement of facts alleged, unless it is altered or set aside by a court. A ruling shall be subject to review in the circuit court in the manner provided for the review of administrative decisions. (Emphasis added.) I am not convinced that declaratory rulings as governed in s. 227.41 apply to cases under IDEA. However, assuming for the sake of argument that it does, the agency has the discretion to make a declaratory ruling based on a number of factors. In part, it is based on the preventing a multiplicity of suits; and in achieving economy of judicial time. In this case, given the lack of interest in specifying a remedy, I believe that this is only a stepping stone to a different legal procedure. It is pointless to make a determination that should be made as part of another legal action. It is also a waste of judicial time. Finally, I want to note that the Wisconsin Statutes and Administrative Rules provide a student the right to file an IDEA compliant with DPI. The compliant process is essentially a declaratory process and obviates the need to issue declaratory rulings as part of the IDEA due process hearing. Shortly after the filing of the First Amended Complaint, the Student graduated from Poynette High School with a regular education diploma. In Mars (PA) Area District, 21 IDHLR 188 (OCR, Region 111, January 5, 1994), the Office for Civil Rights held that the complaining student's receipt of her diploma rendered her § 504 complaint moot. Since the student failed to identify any other remedy she was seeking in connection with her complaint, OCR dismissed the matter. In our case, the Student has similarly graduated and has failed to identify any remedy other than a declaration that IDEA has been violated. The case is, therefore, moot. CONCLUSIONS OF LAW
ORDER IT IS HEREBY ORDERED, that the due process hearing request be dismissed with prejudice. Dated at Madison, Wisconsin on August 1, 2001. DIVISION OF HEARINGS AND APPEALS 5005 University Avenue, Suite 201 Madison, Wisconsin 53705-5400 Telephone: (608) 266-2689 FAX: (608) 264-9885 By:_________________________________ Joseph A. Nowick Administrative Law Judge NOTICE OF APPEAL RIGHTS APPEAL TO COURT: Within 45 days after the decision of the administrative law judge has been issued, either party may appeal the decision to the circuit court for the county in which the child resides under §115.80(7), Wis. Stats., or to federal district court pursuant to U.S.C. §1415 and 34 C.F.R. §300.512. To facilitate preparation of the record, when an appeal is filed with the court please send a copy of the appeal to the Division of Hearings and Appeals, 5005 University Avenue, Suite 201, Madison, WI 53705-5400. |