Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

In the Matter of [Student]
v.
Brown Deer School District

 
Case No.: LEA-01-056

ORDER ON MOTION TO DISMISS

The Parties to this proceeding are:

[Student], by [Mother & Father]
[Address]

[Second Address for [Mother]

Brown Deer School District, by

Attorney Renae L. Groeschel
Attorney Michael Aldana
Quarles & Brady
411 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202-4497 The District has moved to dismiss the due process hearing request on the ground that the "hearing request is based solely on an educational malpractice claim, but the Individuals with Disabilities Education Act ("IDEA") does not recognize such claims." The motion to dismiss is denied but certain matter in the supplemented due process hearing request is stricken as described below.

Background

On November 27, 2001, the Parents filed a due process hearing request "because of an alleged violation of the [District's] requirement to provide a safe and appropriate environment" under the IDEA. The hearing request alleged that the Student's right femur had been broken during physical education instruction. The relief requested was to have staff "reviewed for safety issues of children with disabilities."

By order of December 5, 2001, the undersigned required that the Parents file a written description identifying "the specific measures that the Parents would have the undersigned order the District to do or undertake to do in order to provide a safe and appropriate environment." The Parents filed two writings to comply with this requirement, dated respectively December 5 and 13, 2001. The writing of December 5, 2001 requested the following:

  1. to resolve that [the Student's] free and appropriate education be continued at a higher standard of safety.... And more precautions used to protect all children with disabilities from injuries while in school.
  2. monetary settlement - separate from medical bills
  3. medical bill payment
  4. disciplinary action to the PT and PE to include but not limited to
    1. furthering their education about children with disabilities
    2. instruction on the physical difference of a child with a disability to normal children
    3. classes on identifying an injury
    4. classes on treatment of an injury
    5. an incident report in their files ...
  5. clearing of the parent's names ... as child abusers
  6. admittance that the incident was indeed caused during school therapy
  7. and an apology for it having happened, for the cover up, and non-corrective action.

The Parents' correspondence dated December 13, 2001 expanded on the requested relief as follows:

  1. Through the DPI hearing, I am seeking
    1. To resolve that [the Student's] free and appropriate education be continued at a higher standard of safety...
    1. More precautions used to protect all children with disabilities from injuries while in school.
    2. Have the special education classroom ... and other activity areas ... reviewed by Risk Management for safety issues regarding children with disabilities. The special education classroom should be checked for
      1. safety from getting on and off the bus,
      2. to the toileting room's diapering surface as well as the classroom, other activity areas and equipment used by my son as well as other children with disabilities.
      3. ADA required bathroom facilities: rail on diaper, changing table, toilets with seating rails and backs that meet ADA standards and prevent falls, sinks, faucets and mirrors to ADA standards.
      4. Not leaving wobbly children unattended on benches with out support.
    3. Some safety or preventive measure could be:
      1. Continuing education of all teachers, aids and therapists on the reactions to pain, pleasure, discomfort cues from, and identifying reactions of, children with disabilities because each child, like normal children, are different and react different and express themselves differently.
      2. Instruction on the physical difference of a child with a disability to normal children. Not all children can walk, bend at joints and might have limits to bending, limits to movements. This needs to be reviewed (at IEPs) known and understood prior to activities. Refresher meetings every year.
      3. All teachers, aids and therapists need to attend classes on identifying an injury. Refresher courses every year.
      4. All teachers, aids and therapists receive and renew information on the treatment of an injury. Refresher courses every year.
      5. Report incidents to a nurse who should always be on staff daily for all day hours children are in school, or spec. ed. Teacher; before they continued therapy or putting the child in a piece of equipment.
      6. With the assistance of another teachers, aids and therapists remove clothing and look, do not jiggle or move the possible injury site.
      7. The Office I work in ... will be glad to review the classroom and therapy areas for ADA compliance.
  2. Monetary settlement - separate from the medical bills.
  3. Medical bill payment - separate from monetary settlement.
  4. Disciplinary action on PT ... and PE ... to include but not limited to Continuing education and refresher courses on:
    1. furthering their knowledge about children with disabilities.
    2. instruction on the physical difference of a child with a disability to normal children
    3. classes on identifying an injury
    4. classes on treatment of injury
    5. honesty verses fear.
    6. an incident report in their files. (because they didn't investigate the noises pop and snap; they didn't report this incident to a nurse, the parent and Teacher; and they continued therapy.
    7. clearing of the parent's names ([Mother] and [Father]) as child abusers.
    8. admittance that the incident was indeed caused during school therapy.
    9. an apology for having the break happened, for the cover up, and non-corrective action.

The District filed and served a motion to dismiss on December 18, 2001 on the ground that "hearing request is based solely on an educational malpractice claim, but the Individuals with Disabilities Education Act ("IDEA") does not recognize such claims." The Parent filed a response in opposition on December 20, 2001, though the response did not include argument that addressed the substantive components of the District's motion.

Discussion

Tort-type money damages are not recoverable under the IDEA. See Charlie F. v. Board of Education of Skokie School District 68, 98 F.3d 989 (7th Cir. 1996). Accordingly, the requests for "monetary settlement" and "medical bill payment" are ordered stricken.

I conclude also that the following relief requested is not available under the IDEA and is therefore ordered stricken: (1) that the District take disciplinary action against certain staff, (2) that the District admit to causing an injury, (3) that the District apologize to the Parents, and (4) that the Parents be "cleared" of any allegations of child abuse.

I conclude also that the Parents lack standing to request relief on behalf of any child with a disability other than the Student. Accordingly, also ordered stricken are requests for relief that may serve to provide a free appropriate public education, not to the Student, but rather to other children with disabilities only.

The motion to dismiss is otherwise denied because in other respects the due process hearing request seeks relief that may be granted under the IDEA. Liberally construed, the hearing request alleges that the Student has been denied a free appropriate public education because the District has failed to provide a safe learning environment. The hearing request alleges that the learning environment is not safe because (1) certain staff lack the appropriate training or qualifications, and (2) certain procedures, physical facilities or equipment are deficient. To this extent, the hearing request states a claim for which relief may be granted under the IDEA, so the motion to dismiss the due process hearing request is denied. See, e.g., Lodi School District, (LEA Wisconsin 1999, Case No. LEA-99-040)(http://www.dpi.state.wi.us/dpi/dlsea/een/lea99040.html); Rick C. v. Lodi School District, 32 IDELR 232 (W.D. Wis. 2000).

The Parties should note that neither the striking of certain material from the due process hearing request, nor allowing other allegations to go forward, constitute a decision on the merits or demerits of any particular contention. Rather, this order merely determines that some of the requests may be determined in this proceeding under the IDEA and some may not. It will remain to be determined at the hearing whether or not a preponderance of the evidence supports the Parents' contention that the Student is being denied a free appropriate public education because of the claimed failure of the District to provide a safe learning environment. Moreover, even if a denial of a free appropriate public education is established, it will remain to be determined whether any of the relief requested by the Parents to remediate any such denial is appropriate.

ORDER

It is therefore ordered that the motion to dismiss the due process hearing request is denied. It is ordered further, however, that the Parents' requests (1) for "monetary settlement", (2) for "medical bill payment", (3) for disciplinary action against certain staff, (4) that the District admit to causing an injury, (5) that the District apologize to the Parents, (6) that the Parents be "cleared" of any allegations of child abuse, and (7) for relief that may serve to provide a free appropriate public education to other children with disabilities but not the Student, are all stricken.

Dated at Milwaukee, Wisconsin on December 21, 2001.

STATE OF WISCONSIN
DIVISION OF HEARINGS AND APPEALS
819 North 6th Street, Room 92
Milwaukee, Wisconsin 53203-1685
Telephone: (414) 227-1860
FAX: (414) 227-3818
By:__________________________________
William S. Coleman, Jr.
Administrative Law Judge