LEA Due Process Decision 02-012

Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

In the Matter of Greenfield School District
v.
[Student]

Case No.: LEA-02-012

ORDER OF DISMISSAL

The Parties to this proceeding are:

[Student], by Attorney Michael J. Bachhuber
Wisconsin Coalition for Advocacy
2040 W. Wisconsin Avenue, Suite 678
Milwaukee, WI 53233

Greenfield School District, by

Attorney Christy A. Brooks
Kasdorf, Lewis & Swietlik
von Briesen & Roper, s.c.
P.O. Box 3262
Milwaukee, Wisconsin 53201-3202 Background

On February 28, 2002, the Department of Public Instruction ("DPI") received a request for an expedited due process hearing from the Greenfield School District ("District") under Subchapter V, Chapter 115, Wis. Stats., and the federal Individuals with Disabilities Education Act (IDEA). The District sought an order to place [Student] (the "Student") in an interim alternative educational setting ("IAES") for up to 45 days pursuant to 20 U.S.C. з 1415(k)(2) of the IDEA. DPI referred the request to the Division of Hearings and Appeals for determination.

The expedited due process hearing commenced on March 7, 2002, and the District completed the presentation of its case in chief that day. A second day for the hearing was scheduled for March 12, 2002 for the presentation of the Student's case in chief and any rebuttal testimony. The parties assembled at that time, but before the hearing resumed they renewed their settlement discussions. The parties reached an agreement, the terms of which were then set forth and agreed to on the record.

The first and essential term of the agreed resolution as described on the record was that the Student "will be placed as soon as possible at Willowglen Academy for up to 45 days as an alternative educational placement." (Tr. 3/12/02, p. 3). Counsel for the Student affirmed that this and other terms recited by counsel for the District accurately reflected the parties' agreement. (Id., p. 6).

After the matter was adjourned, counsel for the District tendered a proposed order of dismissal that would incorporate by reference the terms of the agreement as set forth on the record on March 12, 2002. Counsel for the Student objected to issuance of the proffered order. Counsel for the Student asserted by letter to the undersigned dated March 14, 2002 that the "proposed order is vague because it does not specify whether the placement is for calendar days or school days and because it does not specify upon which date the 45 days begins." Counsel stated further, "It is our position that the 45 days refers to calendar days beginning on March 6, 2002".

Duration and Time of Commencement of the IAES

The terms of the settlement are unambiguous. See Nauga, Inc. v. Westel Milwaukee Co., Inc., 216 Wis.2d 305, 576 N.W.2d 573, 576 (Ct. App. 1998)("mutual assent is judged by an objective standard, looking to the express words of the contract"). The parties agreed that the Student's placement at Willowglen Academy would be "up to 45 days as an alternative educational placement." Federal law empowers an impartial hearing officer to order a placement in an IAES for no more than 45 calendar days at a time. 34 C.F.R. зз 300.521 & 300.526(c)(3)-(4); 34 C.F.R. з 300.9 ("Day means calendar day unless otherwise indicated as business day or school day"). Given this limited authority of a hearing officer to direct placement in an IAES, the objectively reasonable meaning of the settlement is that the parties agreed that the IAES may last up to 45 calendar days.

The agreement is also unambiguous respecting when the IAES would be deemed to begin. The parties' agreed that the IAES would be implemented "as soon as possible". This reflects the clear intent that the 45-day period begin prospectively, not retrospectively as the Student now contends.

I note that on March 7, 2002 at the conclusion of the presentation of its case, the District moved for an immediate order placing the Student at Willowglen Academy as an IAES. The District had previously confirmed that Willowglen Academy would accept an IAES placement of the Student. Implicit in the District's motion for immediate placement at Willowglen was the representation that the District was prepared to implement this placement immediately. Accordingly, the objectively reasonable date for commencement of the 45-day period is the day following the settlement, March 13, 2002 (regardless whether the IAES was actually implemented on that date).

The maximum 45-day period for the IAES therefore expires on April 27, 2002. Absent further agreement of the parties, after April 27, 2002 the District must return the Student to the placement that existed before the placement in the IAES. [Note: Nothing herein shall be deemed to preclude the District from seeking again an expedited due process hearing for an IAES for up to 45 calendar days. See 34 C.F.R. 300.526(c)(4).]

Continuation of Protective Order

Before adjourning on March 12, 2002, I advised the parties that the protective order that I had previously entered on the record on March 7, 2002 would survive dismissal of the proceeding. The protective order imposed duties upon counsel for the Student regarding the handling of the workers compensation forms and medical records of third parties that the District had introduced in its case in chief on March 7, 2002. On the record on March 12, 2002 counsel for the Student renewed his objections to the protective order, asserted on various grounds including the contention that the hearing officer lacked authority to issue such an order. The objections were again overruled and the parties notified that the terms of the protective order would survive dismissal of these proceedings. (Tr. pp. 10-13).

In objecting to the District's proffered dismissal order by his letter of March 14, 2002, counsel for the Student also renewed his previously stated objections to the protective order and its continued effect subsequent to dismissal of the proceedings.

I reaffirm the provisions of the protective order as described on the record on March 7 and on March 12, 2002. A party or representative of a party choosing to disobey the protective order would do so at their peril.

Conclusion

By agreement of the parties, the period for the placement of the student in the IAES at Willowglen Academy is deemed to have commenced on March 13, 2002 and thus may continue through April 27, 2002, unless earlier terminated by the District.

For the foregoing reasons therefore, and notwithstanding the objection of the Student, this matter is dismissed based upon the agreement of the parties set forth on the record on March 12, 2002, whose terms are incorporated and adopted herein by reference.

Dated at Milwaukee, Wisconsin on March 21, 2002. STATE OF WISCONSIN DIVISION OF HEARINGS AND APPEALS
819 N. 6th Street, Room 92
Milwaukee, Wisconsin 53203-1685
Telephone: (414) 227-1860
Facsimile: (414) 227-3818
By: _____________________________________
William S. Coleman, Jr.
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 Wis. Stat. з115.80(7), or to federal district court pursuant to 20 U.S.C. з1415 and 34 C.F.R. з300.512.