Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

In the Matter of [Student]
v.
Monona Grove School District

 
Case No.: LEA-03-010

RULING AND ORDER ON MOTION TO DISMISS

The Parties to this proceeding are:

[Student], by Attorney Eugene Thompson
216 South Hamilton Street
Madison, WI 53703-3212

Monona Grove School District, by

Attorney Renae Waterman
Quarles & Brady, LLP
Suite 2040
411 East Wisconsin Avenue
Milwaukee, WI 53202-4497
BACKGROUND

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) on behalf of [Student] on March 21, 2003 and referred the matter to this division for hearing. A prehearing telephone conference was held on May 22, 2003, and a hearing was scheduled for June 30 and July 1, 2003. The decision due date was extended, at the request of both parties, to August 1, 2003. The issue for hearing was described as:

Has the school district failed to provide a free appropriate public education to the child by finding him ineligible to receive special education services as a child with a learning disability?

By letter received on May 27, 2003, the attorney for the student and parent requested that an additional issue be added for hearing related to whether the child's behavior that resulted in expulsion was a manifestation of his disability, if he is found to be learning disabled. A prehearing telephone conference was scheduled for June 6, 2003 to address this request.

On June 5, 2003, the parent's attorney informed the undersigned and the school district that the student would be moving and would no longer be a resident of the Monona Grove School District as of June 6, 2003. Also on June 5, 2003, the school district's attorney filed a written motion to dismiss this matter as moot. At the prehearing telephone conference on June 6, 2003, the motion to dismiss was addressed by the parties, and the student's attorney was allowed until June 9, 2003 to file a written response to the motion. The parent's attorney filed a written response to the motion on June 9, 2003.

DISCUSSION

The school district argues in its motion to dismiss that, as of June 6, 2003, the Monona Grove School District is no longer responsible for providing a free appropriate public education to the child because he is no longer a resident of the district. The district further argues that, as a result, a claim has not been stated against the district upon which relief may be granted, and the due process hearing request is moot.

The parent's attorney argues that meaningful relief could be ordered in the form of compensatory education if the child would be found to be a child with a disability. In addition, counsel argues that a decision regarding the manifestation determination and expulsion could impact the student's enrollment in a new school district.

Because the student no longer resides in the Monona Grove School District, the district is no longer the local educational agency responsible for providing a free appropriate public education to him. Therefore, even if the student was found to be a child with a disability as the result of a due process hearing, the Monona Grove School District would not be responsible for developing and implementing an individualized education plan for him. The student's new school district of residence would be responsible for providing special education services to meet his needs.

With regard to compensatory education, the parent's attorney cites H.M. v. Special School District No.1, 24 IDELR 159, 160 (Minn. Ct. App. 1996), for the proposition that compensatory education claims survive a student moving out of the district. This is not a well-established principle in special education law. The state court decision out of Minnesota cited by counsel is not binding precedent on this forum. Moreover, the Seventh Circuit and Wisconsin courts have not ruled on whether compensatory education claims survive a student moving out of the school district. The undersigned declines making a determination as to whether compensatory education may be ordered against a school district of which the student is no longer a resident for the purpose of continuing jurisdiction in this matter.

Although jurisdiction will not be continued to allow for additional issues to be added; at the request of the parent's attorney, this matter will be dismissed without prejudice.

ORDER

IT IS HEREBY ORDERED that the due process hearing request filed on behalf of [Student] against the Monona Grove School District is dismissed without prejudice, and the hearing scheduled to commence on June 30, 2003 is cancelled.

Dated at Madison, Wisconsin on June 16, 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 M. 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.

A copy of the appeal should also be sent to the Division of Hearings and Appeals, 5005 University Avenue, Suite 201, Madison, WI 53705-5400.

The Division will prepare and file the record with the court only upon receipt of a copy of the appeal.