Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

The Parties to this proceeding are:

[Student], by

[Father]
[Address]

Brodhead School District, by

Attorney David R. Friedman
30 West Mifflin Street, Suite 1001
Madison, WI 53703

PROCEDURAL HISTORY

The Department of Public Instruction received a request for a due process hearing under Wis. Stats. Chapter 115, and the federal Individuals with Disabilities Education Act (IDEA) from [Father] (the "Parent") on behalf of [Student] (the "Student") on January 09, 2003 and referred the matter to this division for hearing. Prehearing conferences were held on January 17 and February 19, 2003. The due process hearing was held on February 25 and 26, 2003. At the request of both parties, the date for issuance of a decision in this matter was extended to March 21, 2003.

ISSUES

1. Did the School District provide appropriate transition services to the Student from January 2002 to the present?
2. Did the School District provide the student with appropriate instructional support in art class during the 2002-2003 school year?

FINDINGS OF FACT

1. The Student (date of birth: xxxxxxx) is a child with a disability in need of special education who attends high school in the Brodhead School District (the "District"). The Student has been medically diagnosed with Asperger's Syndrome, and the District has determined that he meets the criteria for autism and a speech and language impairment. (Ex. 4)
2. On September 18, 2001, an IEP team meeting was held for the annual review and revision of the Student's IEP and to develop a transition statement. (Ex. 1) The meeting was continued on October 3, 2001. The Parent attended and participated in both meetings. Page I-9 page of the IEP indicates that the Student will turn 14 years of age during the timeframe of the IEP, and it includes a statement of the Student's transition service needs that focuses on exploratory classes in which he will participate. Page I-9 also indicates that the Student was invited to attend the IEP team meeting. Page three of the IEP is a record of the speech and language therapist's interview with the Student regarding his career interests after high school and his goals for the school year. (Ex. 1)
3. At the Parent's request, an IEP team meeting was convened on December 5, 2001 to address the Parent's concern that the Student be included in show choir. The Student's transition needs were not discussed at that IEP team meeting. (Ex. 1)
4. The Student's 14th birthday was on XXXXXX.
5. On April 18, 2002, an IEP team meeting was held to review and revise the Student's IEP and to develop a transition statement. (Ex. 2, Tr. 9) The Parent and the Student attended the meeting. Prior to the meeting, the Student completed a class interest form with his parents. A proposed class schedule was computer-generated for the Student, as for all District high school students, based upon his class preferences and course availability. (Tr. 12-13, 123, 211) The Student's proposed class schedule for the 2002-2003 school year was discussed at the IEP team meeting. (Tr. 12, Ex. 2)
6. The April 18 IEP team meeting was continued on May 16, 2002. The IEP team further discussed the Student's transition needs on that date. (Ex. 3, Tr. 13-14) The Parent attended and participated in the May 16 meeting. At the District's invitation, a representative from Green County Developmental Disabilities attended the meeting to establish interagency responsibilities or linkages related to transition. (Ex. 3, page 11) The IEP contains a statement of the Student's transition service needs that indicates that he will participate in exploratory courses and a sampling of courses that will help him make career decisions, as well as elective courses such as the Fundamentals of Art or Foods I. The IEP further states that, with the help of CESA-2's autism consultant, a vocational assessment/inventory would be done in the fall when the Student was in high school to help him "get a better picture of his skills." (Ex. 3, page 2)
7. The May 16, 2002 IEP also includes a summary of transition services (form I-13) that describes a coordinated set of transition activities that relate to transition service areas. (Ex. 3, page 11) In addition, the IEP includes a vision statement that the Student completed at school with his case manager as a means of ensuring that the Student's preferences and interests were considered in transition planning. (Ex. 3, page 4) The IEP also contains a transition planning page submitted by the Parent that reflects transition planning that he did with the Student at home prior to the IEP team meeting. (Ex. 3, pages 5-6) The Student listed cook and truck driver as possible career choices on his vision statement and on the transition planning page.
8. At the April and May IEP team meetings, the Parent expressed concerns about the Student taking Fundamentals of Art as an elective course. (Tr. 124, 211, 299-300) The IEP team discussed elective course choices, including art and Foods I class, and ensuring that the elective chosen would allow him to be scheduled into the team-taught core academic classes he needed -- U.S. history, English, and science. (Tr. 27, 124, 298-300) The IEP team also discussed that the art class was only offered first semester, was taught by a teacher who had had training on Asperger's Syndrome, and was a gateway class that would allow the Student the option of taking other art, design and photography classes. (Tr. 211-212, 300) The foods class was available both first and second semesters. The Student was enrolled in art class during the first semester and foods class during the second semester of the 2002-2003 school year. (Tr. 121, 211)
9. The IEP team determined that the Student did not need an educational aide supporting him in art class for the 2002-2003 school year. (Tr. 31-32) The IEP developed for the Student in April and May 2002 includes goals and objectives related to independent problem-solving and attending (paying attention) in class and increasing self-advocacy skills. (Ex. 3) The IEP also includes an accommodation plan for the Student that includes numerous modifications and instructional supports, such as: access to the resource room to receive assistance and support during study hall, extra time or extended due dates if needed on assignments, shortened assignments, repeated directions, adapted worksheets, and note-taking assistance when necessary. (Ex. 3) The May 16 IEP was in effect at the start of the 2002-2003 school year.
10. The District provided a student mentor for the Student in art class from September until late November 2002 when the parent called and requested an educational aide for the Student in the class because the Student had failed two quizzes. (Tr. 187-188, 213, 318) The District did not provide an educational aide for the Student in the class. (Tr. 214) The Special Education Director and the Student's case manager met with the art teacher regarding the Student's needs and progress and determined that the teacher would be able to provide more one-on-one assistance to the Student for the remainder of the class. In addition, the Special Education Director continued to monitor the situation with the art teacher. (Tr. 215) The Student received an overall grade of "D" in the class. (Tr. 144)
11. On October 14, 2002, and IEP team meeting was held for the three-year reevaluation of the Student, the annual review and revision of the IEP, and to develop a transition statement. (Ex. 4) The Parents attended and participated in the meeting. The Student was invited to the meeting but did not attend. Prior to the meeting, the Student's case manager met with the Student to complete his post-school outcome/vision statement, which was included in the IEP. (Tr. 131, Ex. 4) With regard to employment, the Student stated: "I think it is too early to decide what I want to do after high school. I think maybe I would like to become a teacher." (Ex. 4) Prior the IEP team meeting, the Student also completed career inventories and attended a meeting to review his vocational assessments. (Tr. 22-24, Ex. 4) The case manager sent some informative materials regarding transition home to the Parent prior to the October 14 IEP team meeting. (Tr. 132)
12. The October 14 IEP includes a four-year transition plan for the Student. (Ex. 4) Although a four-year transition plan in not required by law for a 14-year-old child, the District worked on a four-plan for the Student in an attempt to better address the Parent's concerns about transition. (Tr. 135-139, 207-208) The IEP also contains goals and objectives related to transition, such as: "[The Student] will demonstrate the ability to be successful in functional life skills to enhance his transition to life beyond high school" and "[The Student] will demonstrate improved self-advocacy and responsibility."

DISCUSSION

Transition services

The IDEA requires that all children with disabilities are offered a FAPE that meets their individual needs. 20 USC § 1400 (d); 34 CFR § 300.1. The requirement of FAPE means that a child receives personalized instruction to meet the unique needs of the child, with sufficient support services to permit the child to benefit from that instruction. Board of Educ. v. Rowley, 458 U.S. 176, 188-89 (1982).

The IDEA does not provide any substantive standard prescribing the level of education to be accorded handicapped children. In Rowley, the United States Supreme Court stated that "by passing the Act, Congress sought primarily to make public education available to handicapped children. But in seeking to provide such access to public education, Congress did not impose upon the States any greater substantive educational standard than would be necessary to make such access meaningful." Id. at 192.

In Rowley, the Supreme Court offered a two-prong test to determine if a child has received FAPE: (1) whether there has been compliance with the IDEA's procedural requirements; and (2) whether the IEP is reasonably calculated to provide educational benefits. 458 U.S. 176, 206-07. If these requirements are met, no IDEA violation will be found. Id. at 206-07.

In this case, the Parent alleges that the District failed to provide appropriate transition services to the Student as required by the IDEA from January 2002 to the present. The IDEA requires that, beginning at age 14, and updated annually, a student's IEP include a statement of the transition service needs of the child under the applicable components of the IEP that focuses on the child's courses of study (such as advanced-placement courses or a vocational education program). See 20 U.S.C. § 1414(d)(1)(A)(i)(I). Beginning at age 16 (or younger, if determined appropriate by the IEP team), a student's IEP must include a statement of needed transition services for the child, including, when appropriate, a statement of the interagency responsibilities or any needed linkages. See 20 U.S.C. § 1414(d)(1)(A)(i)(II).

The IDEA defines transition services as a coordinated set of activities for a student with a disability that (A) is designed within an outcome oriented process, which promotes movement from school to post-school activities, including post-secondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation; (B) is based upon the individual student's needs, taking into account the student's preferences and interests; and (C) includes instruction, related services, community experiences, the development of employment and other post-school adult living objectives, and, when appropriate, acquisition of daily living skills and functional vocational evaluations. See 20 U.S.C. § 1401(30).

The District followed the procedural requirements of the IDEA when it developed a statement of the Student's transition service needs at the September and October 2001 IEP team meetings, as that IEP would be in effect when the Student became 14 years of age. Likewise, the IEP team properly determined the Student's transition services needs for the IEPs developed in April, May and October 2002. The record refutes the Parent's arguments that the District unilaterally determined the Student's transition service needs and ignored the Student's preferences when selecting his elective courses. The Parent attended and participated in all of the IEP team meetings, submitted documents that were incorporated in the IEPs, and raised concerns that were discussed by the IEP team. In addition, the Student attended one of the IEP team meetings.

The Student's preferences and interests were included in the IEPs in the vision statements and transition planning page(s). The differences in the Student's May and October 2002 vision statements indicate that his career interests and post-school goals are not definite and are still evolving. The fact that the Student was enrolled in an art class during the first semester, rather than Foods I or another elective course, does not mean that his interests and preferences were improperly disregarded. His interests and preferences, as it related to elective courses, had to be balanced against his need for team-taught core academic courses and scheduling conflicts. When the Parent raised concerns about art class, the IEP team discussed the reasons why it was the best elective class choice for the first semester.

Applying the second part of the Rowley test, a review of the IEPs developed for the 2002-2003 school year, including the statements of transition service needs contained therein, shows that they were reasonably calculated to provide educational benefit to the Student. The statement of transition services needs contained in the IEP that was in effect from January through April 2002 could have been more detailed, but it properly focused on courses of study, listing several exploratory courses for the Student. That IEP also included information regarding the Student's interests and preferences.

The IEPs developed in April, May and October 2002 contain detailed transition statements, including a great deal of information about the Student's interests and preferences. The transition statements focus on courses of study, as required. Indeed, the IEP developed in October 2002 contains a four-year transition plan, even though this level of transition planning is not legally required for a 14-year-old student. The Parent argues that the plan should more specifically list the courses of study for the next four years. However, such detail is not required by the IDEA and may not be practical, in light of the fact that the Student's post-school vision is still evolving.

Instructional support in art class

The IDEA establishes a "basic floor of opportunity" for every child with a disability. The District is required to provide specialized instruction and related services "sufficient to confer some educational benefit upon the handicapped child," but the Act does not require "the furnishing of every special service necessary to maximize each handicapped child's potential." Rowley, 458 U.S. at 199-201. The IEP of a child educated in a regular classroom should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade. Id. at 189.

The Parent alleges that the failing grades that the Student received on some art quizzes or exams are evidence that appropriate support and accommodations were not provided to the Student in art class. (Tr. 319) However, the Student's IEP did include accommodations such as assignment modification and assistance and support in the resource room staffed by a special education teacher. (Ex. 4) The Student did not utilize the resource room prior to failing the art quizzes. (Tr. 145) In addition, the District provided a student mentor to the Student in art class.

The IEP team determined that the Student did not need instructional support in art class (such as an educational aide) after properly considering the Student's needs and IEP goals related to independence and self-advocacy. The Student's case manager during eighth grade testified that she saw the Student become more independent and socially appropriate in eighth grade art class and that he needed very little assistance from her on several projects towards the end of the class. Therefore, she felt that he could succeed in art in ninth grade without an aide in class with him. (Tr. 31-32) The Student's current case manager testified that the ninth grade art class helped the Student improve his ability to function more independently, consistent with his IEP goals. (Tr. 197) The Student also functioned independently in related math and physical education classes during the first semester without an aide or other instructional support. (Tr. 121-122)

The Parent supported goals related to independence, as evidenced by the proposed goals he had previously submitted to the District that included independent problem solving and independent attending and study skills. (Ex. 2, page 9) Indeed, the Parent testified at the hearing that he did not want a "tag along" aide for the Student. (Tr. 324) The Parent testified that he was pleased with the Student's art work that he saw in October 2002, and he acknowledged that the assignments were modified. (Tr. 317)

The IDEA does not deprive the District the right to apply their professional judgment. Here, District staff properly considered the Student's needs before determining that, in their professional judgment, the Student did not need an educational aide in art class. After the Student failed the art quizzes, the Special Education Director and the Student's case manager met with the art teacher and determined that the additional one-on-one assistance that the teacher would provide the Student for the remainder of the class would meet the Student's needs. In addition, the Special Education Director continued to monitor the situation with the art teacher. (Tr. 214-215) Although the Student did not receive a high overall grade in art, he did not fail the class and will receive credit for the class towards graduation. The District appropriately considered the Student's needs and offered the Student the services and supports necessary to confer some educational benefit.

CONCLUSIONS OF LAW

1. The School District provided appropriate transition services to the Student from January 2002 to the present.
2. The School District provided the student with appropriate instructional support in art class during the 2002-2003 school year.

ORDER

IT IS HEREBY ORDERED that the due process hearing request be dismissed with prejudice.

Dated at Madison, Wisconsin on March 20, 2003.

STATE OF WISCONSIN
DIVISION OF HEARINGS AND APPEALS
5005 University Avenue, Suite 201
Madison, Wisconsin 53705-5400
Telephone: (608) 266-7709
FAX: (608) 264-9885
By:__________________________________
Sally Pederson
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.