Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

In the Matter of [Student]
v.
Milwaukee Public Schools

 
Case No.: LEA-02-024

DECISION

The Parties to this proceeding are:

[Student] [Address]

Milwaukee Public Schools, by

Attorney Susan D. Bickert
[Address]

Procedural Background

On May 10, 2002, the Department of Public Instruction received a request for a due process hearing under Subchapter V, Chapter 115, Wis. Stats., and the federal Individuals with Disabilities Education Act (IDEA), from [Student] (the "Student"), who was age 20 at the time. The Student's mother, [Mother], signed the due process hearing request also. The gist of the Student's requested relief was that the assignment of grades and credit units be corrected and that he be deemed eligible for graduation.

A scheduling order dated May 30, 2002 defined the scope of the matters to be heard at the due process hearing as follows:

  1. The propriety of grades and credit units for [the Student] occurring on or after May 10, 2001.
  2. The propriety of the termination of [the Student's] enrollment from MPS occurring after May 10, 2001.

To require the Student to provide specificity to his claim that grades and credit units were not properly assigned, the scheduling order of May 30, 2002 also instructed the Student to do as follows:

[The Student] will identify in writing the precise grades and credit units that he claims to be in error, and what changes would be necessary to make them correct. [The Student] will supply this written identification by placing it in the regular U.S. mail to me and to [the attorney for MPS] no later than June 1, 2002. If [the Student] fails to provide this written identification, then his claim that the grades or credit units he received were incorrect will be subject to dismissal upon motion of MPS.

(Emphasis in original).

In response to this instruction, the Student's mother supplied information by letter postmarked June 1, 2002. The information supplied failed to comply with the directive of the May 30, 2002 scheduling order, in that it failed to identify the precise grades and credit units claimed to be in error, and what changes would be necessary to make them correct. MPS then moved to dismiss his challenge to the grades and credit units. On June 24, 2002, the Student's mother provided additional information with a view toward late compliance with the provision above. In an order dated June 26, 2002, I denied MPS's motion to dismiss, but shifted the burden of proof on this issue to the Student, as follows:

"1….
c. MPS's motion to dismiss is meritorious. In the material that [the Student's mother] has supplied on behalf of her son, it is impossible for MPS to determine what evidence it must gather to present in its case in chief to meet the Student's allegation that certain grades and credit units were improperly assigned. Dismissal of this issue for failure to comply with the order of May 30, 2002 would be entirely appropriate.

d. However, as discussed during the telephone conference [on June 26, 2002], I deny MPS's motion to dismiss this part of the claim. Instead of dismissal, however, I am placing the burden of proof on [the Student] to demonstrate at the due process hearing the following:

    i) what grades and credit hours he claims are incorrect or missing,
    ii) what such grades and credits should be, and why, and
    iii) how the errors on grades and credits denied him a free appropriate public education (FAPE).

Upon the presentation of sufficient evidence to establish a prima facie case, then MPS will have the opportunity to present evidence that is responsive to [the Student's] evidence on this issue."

The due process hearing was held on July 2, 2002 at the offices of Milwaukee Public Schools ("MPS") in Milwaukee, Wisconsin. [Student] appeared pro se, but was assisted by his mother during the course of the hearing. A post-hearing briefing schedule was established for simultaneous principal briefs and simultaneous responsive briefs, with which both parties complied.

In addition to his post-hearing brief, the Student also submitted additional documentary evidence. MPS objected to submission of additional evidence after the close of the evidence. MPS's objection is well taken. Nevertheless, I have considered the additional evidence that the Student provided.

As part of his post-hearing brief, the Student has also requested that I find in contempt six persons whom the Student asserts he served with subpoenas to appear for the hearing but who failed to comply. Administrative law judges, appointed as impartial hearing officers for due process hearings in Wisconsin, have no contempt power nor the authority to enforce subpoenas directly. See Wis. Stat. §§ 785.02, 885.01(4), 885.12, 115.80(5). Accordingly, I lack the power to grant the relief that the Student requests.

I note also that at the due process hearing, after the Student appeared to have completed presenting his case, I asked him whether he had any further evidence to present. He responded in the negative. (Tr. 218). He did not request that the hearing be continued to enable him to seek an order of the court under Wis. Stat. § 885.12 to enforce the subpoenas he claims to have served on these six persons. In addition, according to the information the Student has provided, five of the six persons identified are employed by MPS in its Office of Parent Services. There is no indication that any of these five persons have any knowledge particular to the educational program for the Student. Also, the sixth person identified is affiliated with Parent Education Project of Wisconsin. I note that another person who is also affiliated with that organization did appear and did testify at the behest of the Student (Ms. Christine Shafer), but that she had no personal knowledge regarding the Student or his educational program. There is no suggestion in the record that the sixth potential witness, who was associated with the same organization as Ms. Shafer, would have had anything further of value to add to these proceedings.

For the reasons described below, the Student's requested relief that he be deemed to have earned sufficient credit units that would entitle him to graduate is denied.

Findings of Fact

  1. [Student] (the "Student") was born on xxxxx, and thus was twenty years of age when he filed the due process hearing request on May 10, 2002. The Student resides in the area served by Milwaukee Public Schools ("MPS").

  2. In October 1999, MPS identified the Student to be a child with a disability within the meaning of the state and federal special education laws by reason of being "other health impaired" based on a diagnosis of attention deficit hyperactivity disorder (ADHD). MPS held an IEP ("Individualized Educational Program") team meeting on October 21, 1999, and prepared an IEP for the period October 22, 1999 to October 21, 2000. MPS determined the Student's placement to be in its "Project School-to-Work."

  3. Project School-to-Work is a specially designed program for 18 to 21 year old students designed to transition adult students into the workplace. It includes a significant vocational component for which students receive credit in addition to credit that they receive for their academic programs. Students go to school for half of the school day and work for the other half. During the half school day (either morning or afternoon) that a student is not in class, he or she is expected to be employed or actively seeking employment, for which the student receives credit toward graduation. Typically, a student in Project School-to-Work will receive, over the course of a school year, three academic credits and three work credits, provided the student completes both components of the program.

  4. The focus of Project School-to-Work is to prepare adult students for the world of employment and independent living. To that end, regular attendance and punctuality is required of every student, as set forth in a contract signed by each student. Attendance constitutes 50% of a student's grade, so that a student who is present every day is very likely to pass the semester. The attendance policy and the contract are reviewed with each student during an individual intake meeting with the classroom teacher. The Student participated in the intake process more than once, most recently on August 30, 2001, at which time he signed a contract for the 2001-2002 school year.

  5. The contract provides that students in the Project School-to-Work Program are expected to attend school either from 7:55 a.m.-10:30 a.m. or from 11:55 a.m.-2:30 p.m. A student who expects to be late must call the school no later than 8:30 a.m. for the morning class or 12:30 p.m. for the afternoon class. Students who fail to call and who arrive after 8:30 a.m. or 12:30 p.m. will not be admitted to school and the student's absence will be marked unexcused. Even if a student calls in to say he or she will be late, the student must be in the classroom by 9:00 a.m. for the morning class, or by 1:00 p.m. for the afternoon class, or the student will not be admitted.

  6. To receive credit in the vocational component of the program, students must provide evidence that they are either employed or are seeking employment by providing copies of pay stubs or employment applications.

  7. MPS held an annual IEP meeting for the Student on October 20, 2000 and wrote an IEP for the period October 20, 2000 to October 19, 2001. The Student's placement continued at Project School-to-Work.

  8. MPS held the next annual IEP meeting on October 19, 2002. MPS provided due notice of the meeting, but neither the Student nor his mother attended. MPS wrote an IEP to be in effect from October 19, 2001 to October 18, 2002, and continued the Student's placement at Project School-to-Work.

  9. Throughout the fall semester of the 2001-2002 school year, the Student's attendance was poor:

    1. For the month of September 2001, the Student was absent from the classroom for seven out of nineteen school days. He was tardy on four of nineteen school days, and present for the balance of eight days.

    2. For the month of October 2001, the Student was absent from the classroom for fifteen of nineteen school days. He was tardy on the remaining four days.

    3. The Student's attendance improved for the month of November 2001, in which there were twenty school days. The Student was absent from the classroom for seven days, tardy on three days, and present for the balance of ten days.

    4. For the month of December 2001, the Student was absent from the classroom fourteen of fifteen school days, attending only on Monday, December 3, 2001.

  10. MPS made substantial efforts designed to improve the Student's poor attendance during the 2001-2002 school year.

    1. The special education teacher sent him home four times for being late, in accordance with the school's policy for arriving late, but nonetheless allowed him to remain in class after reporting late 11 times during the semester. The last time that the special education teacher sent him home for arriving late, the teacher gave the Student a copy of his contract to remind him of his attendance obligations.

    2. The special education teacher telephoned the Student's mother on September 19, 2001 to discuss his attendance, and he telephoned the Student at least twice at home to remind him about going to school. When the Student did attend class, the special education teacher from time to time admonished him that he needed to improve his attendance. To assist the Student in this regard, his teacher allowed him to attend class in the afternoon when he had difficulty getting to school in the morning as scheduled. In addition, other classroom staff spoke to the Student on a number of occasions regarding his attendance, discussing with him the use of an alarm clock and how important punctuality is to hold a job.

    3. By letter dated October 16, 2001, the Student's special education teacher formally warned him that if his poor attendance continued he would be dropped from the program. On October 22, 2001, the Student came to school and met with his special education teacher to discuss his poor attendance. (MPS Exh. 2). That same day, the Student met with a school social worker to discuss his poor attendance. (MPS Ex. 1, p. 43). His attendance improved in the month of November as a result, but he stopped going to class altogether after December 3, 2001.

  11. By letter dated January 4, 2002, addressed to both the Student and his mother, MPS advised the Student that it regarded his poor attendance to reflect an intent that he no longer wished to attend school. In the same letter, MPS informed the Student that he remained "eligible for free appropriate educational services through age 21" and that "you have the right to continue your education until the end of the school term of your twenty-first birthday, if you wish." The letter provided the Student with the telephone number of the office to call "[i]f you change your mind about your education and would like to resume your enrollment in the Milwaukee Public Schools."

  12. On January 4, 2002, more than 30 days after the Student last went to class or had any contact with MPS, MPS dropped him from the school's enrollment. (T. 104).

  13. The Student received the letter of January 4, 2002 but did not respond to it.

  14. On April 23, 2002, the Student's mother telephoned a special education supervisor at MPS and asked to meet to discuss the Student's grades and credits for graduation. In response, MPS convened an IEP team meeting for the purpose of reviewing and revising the IEP and to determine placement. In the IEP meeting on May 3, 2002, MPS informed the Student that he would not have sufficient credits to graduate in June 2002 and advised him what he would need to do to graduate in June 2003.

  15. MPS re-enrolled the Student in the School-to-Work program and his first day back in school was May 7, 2002. For the remainder of the school year he was absent two days, tardy but present three days, and present for the balance of school days.

  16. MPS appropriately dropped the Student from its rolls in January 2002 because of his failure to maintain appropriate attendance.

  17. MPS maintained appropriate attendance, grade and credit records for the Student at all relevant times from May 10, 2001 to date.

  18. As of November 29, 2001, the Student had earned 8.75 credit units toward graduation. The Student did not have sufficient credit units for graduation at the close of the 2001-2002 academic year.

  19. MPS has at all relevant times made available to the Student a free appropriate public education.

Discussion

MPS dropped the student from its rolls only after the Student effectively dropped out of school. Even in its letter notifying the Student of this action, MPS invited the Student to re-enroll, and informed him of his right to continue to receive special education services through age 21. The Student chose to remain out of school until April 2002, after his mother inquired about whether he would be graduating in June.

If the Student had been between the ages of 6 and 18 years, he would have been subject to the state compulsory attendance law. Wis. Stat. § 118.15(l)(a). Since the Student is an adult, however, he was not required to attend school and MPS could not compel him to do so. In its effort to provide the Student a free appropriate public education, MPS's efforts to encourage the Student to improve his attendance so that he might earn sufficient credit units to graduate were reasonable. MPS did not deny the Student a free appropriate public education by dropping him from the rolls of students after he stopped attending class. Not only did the Student pay no heed to the various entreaties directed to him to improve his attendance, the Student in effect completely rejected continued education at MPS by failing to go to class altogether. The Student failed to carry his burden of proof to demonstrate that any grades were improperly assigned or that any credit units improperly withheld. He failed even to present a prima facie case that any grades or credit units were improperly assigned or that any alleged improper assignment denied him a free appropriate public education.

I find reliable the attendance records of MPS, maintained in the regular course of business. I find the evidence insufficient to support the Student's assertion that some of the days he was marked absent in the school year 2001-2002 were days that he should have been marked present, according to an arrangement allowing him to spend the entire day at his workplace. While there is evidence that the special education teacher would sometimes make such arrangements, there is no evidence to corroborate the Student's testimony that he did so with respect to the Student. I find the testimony of Mary Sevcik that there was no such arrangement more reliable than the Student's testimony. In this regard, I note that the pay stubs that the Student provided after the close of the hearing do not cover any period after October 20, 2001. Moreover, these pay stubs are insufficient to establish that the Student was working at the same time he would otherwise have been required to be in class. Lastly, to the extent the pay stubs would show that he had been properly excused from class, the Student should have submitted them to his special education teacher as soon as he got them, not after the close of a due process hearing. The preponderance of the evidence establishes that he did not do so. (T. 44, 121). Without proof of employment in the form of valid pay stubs or a letter from the employer, the Student was simply absent from school without an excuse, as is reflected in his attendance record.

I find unreliable the Student's testimony that he went to school every school day in December 2001, but that every day he was sent home because he was late. (T. 160-161.) I find unreliable the Student's testimony that MPS's attendance records inaccurately marked him being absent on certain days in January 2002. (T. 162). I find more reliable the attendance records of MPS, kept in the regular course of business, and give it greater weight than the Student's sometimes contradictory recollection.

In the absence of sufficient evidence demonstrating to the contrary, I accord the presumption of regularity to MPS's assignment of grades and credit units. MPS's assignment of grades and credit units to the Student was appropriate and did not deny the Student a free appropriate public education.

Conclusions of Law

  1. MPS did not deny the Student a free appropriate public education by dropping him from the rolls of Students in January 2002.

  2. MPS has at all relevant times offered a free appropriate public education to the Student.

ORDER

The Student's requests that MPS assign him different grades and additional credit units, and deem him eligible to graduate from high school, are denied.

Dated at Milwaukee, Wisconsin on August 28, 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. §115.80(7), or to federal district court pursuant to 20 U.S.C. §1415 and 34 C.F.R. §300.512.