Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

RULING AND ORDER ON MOTION TO DISMISS

On May 29, 2001, [Student] by her parents, [Mother and Father] filed a request for a due process hearing under Subchapter V, Chapter 115, Wis. Stats., and the Individuals with Disabilities Education Act (IDEA). On June 4, 2001, Gregory S. Dietz, CESA 10 Director of Special Education, filed a Motion to Dismiss on behalf of the Granton Area School District (School District). A telephone prehearing conference was conducted in this matter on June 11, 2001. During the prehearing conference a briefing schedule was established for the School District’s Motion to Dismiss the [Parents]’ request for a due process hearing. The [Parents]’ response to the motion was filed on June 18, 2001 and the School District’s reply brief was filed on June 25, 2001.

The issues raised by the School District in its motion are:

1. Should the request for due process hearing by [Mother and Father] against the Granton Area School District be dismissed because the issues raised are not subject to the due process procedures established by Wis. Stat. § 115.80(1) and 20 U.S.C. 1415(b)(6)?

2. Should the request for due process hearing by [Mother and Father] against the Granton Area School District be dismissed because their child, [Student], was not a resident of the district at the time of the hearing and is not presently a resident of the district?

The [Parents]’ complaint alleges that [Student] was dropped off by the school bus at local taverns after school without their permission. The remedy they seek is that this activity be stopped. With respect to the first issue, the School District argues that the due process complaint filed by the [Parents] does not fall within the purview of Wis. Stat. § 115.80(1)(a). Wis. Stat. § 115.80(1)(a) provides that a parent may file a written request for a hearing "after the refusal or proposal of the local educational agency to initiate or change [the] child’s evaluation, individualized education program, educational placement, or the provision of a free appropriate public education…." The School District acknowledges that [student] is identified as a child with a disability. There is no issue regarding the identification of [Student] as a child with a disability or disagreement as to the evaluation.

Dropping [Student] off at taverns on several occasions without her parents' permission is not clearly related to [Student]’s education. However, in their response to the School District’s motion, the [Parents] allege that two of the persons who were involved in [Student]’s being dropped off at and spending after school time at taverns were Linda Oettiker, a member of [Student]’s IEP team, and Sandra Campbell, a School District employee. Although not clearly education related, conceivably these activities may be within the purview of an IDEA complaint.

The second issue raised by the School District is clear-cut. The [Parents] acknowledge that they have removed [Student] from the Granton Area School District and enrolled her in the Neillsville School District. Wis. Stat. § 115.80(1)(a), allows parents to file due process hearing requests challenging the actions of "the local educational agency." Wis. Stat. § 115.76(10), defines the "local educational agency" as the school district in which the child resides. Federal courts have held that it is proper under IDEA to grant a motion for summary judgment when a student is not "living in nor physically present" in the District within which the due process hearing request was made. Joshua W. v. Board of Education of Wichita USD. NO. 259, 29 IDELR 339 (1998). Similarly, the 8^th Circuit Court of Appeals has held:

Because [Student] was not a resident of the School District at the time the due process hearing request was filed, the hearing request must be dismissed. In their response to the School District’s motion the [Parents] indicate that they filed the request for a due process hearing to prevent any reoccurrence of the past incidents of [Student] being dropped off at taverns or other places without their permission. As long as [Student] is not enrolled in the Granton Area School District, such an order directed towards the Granton Area School District would have no effect. When and if, [Student] is again enrolled in the Granton Area School District, the School District will be required to prepare an IEP for her. The [Parents] could request a provision in the IEP that would prevent [Student] from being dropped off anywhere by the school bus without their permission. If the School District refuses to include such a provision in the IEP, that refusal may be suitable grounds for a due process hearing.

ORDER

It is undisputed that [Student] was not a resident of the Granton Area School District at the time the [Parents] filed the request for a due process hearing request. Therefore, it is hereby ordered that the Due Process Hearing Request for [Student] versus the Granton Area School District is DISMISSED and the hearing scheduled to commence on July 25, 2001 is CANCELLED.

Dated at Madison, Wisconsin on July 13, 2001.

NOTICE OF APPEAL RIGHTS