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Before The
The Parties to this proceeding are: Schott, Bublitz & Engel, S.C. 16655 W. Bluemound Rd., #330 Brookfield, WI 53005 Milwaukee Academy of Science, by Quarles & Brady, LLP Suite 2040 411 East Wisconsin Avenue Milwaukee, WI 53202-4497 On July 21, 2003, 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 Attorney Robert Pledl, representing [Mother and Father] (the "Parents") on behalf of [Student] (the "Student") on November 20, 2002, and referred the matter to this division for hearing. The Parents' due process hearing request alleges that the Milwaukee Academy of Science (the "Academy") failed to provide the Student with a free appropriate public education ("FAPE") during the 2000-01 and 2001-02 school years. Pre-hearing telephone conferences were held on August 6 and September 3, 2003. On August 6, 2003, at the parties' request, the deadline for issuing a decision in this matter was extended to October 3, 2003. On August 6, 2003, the Academy filed a motion for summary judgment with attached exhibits on the grounds that the parents' hearing request is time-barred by the one-year statute of limitations contained in Chapter 115 of the Wisconsin Statutes. The Parents filed a brief opposing the motion for summary judgment on August 29, 2003, and filed supporting documentation on September 2, 2003. The Academy filed a response brief and affidavit in support of its motion for summary judgment on September 9, 2003.
Summary judgment is appropriate if the evidentiary material shows that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Moulas v. PBC Productions, Inc., 213 Wis.2d 406,410, 570 N.W.2d 739 (Ct. App. 1997). In deciding a motion for summary judgment, the court must view the facts in the light most favorable to the nonmoving party. See Fisher v. Transco Servs.-Milwaukee, Inc., 979 F.2d 1239, 1242 (7th Cir. 1992). Only a "genuine" issue of "material" fact will defeat an otherwise proper motion for summary judgment. Appleton Area School Dist. v. Benson and K.T., 32 IDELR 91 (E.D. Wis. 2000) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). A material fact is one which, under the governing substantive law, "might affect the outcome of the suit." Appleton, 32 IDELR 91 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute over a material fact "is genuine if the evidence is such that a reasonable trier of fact could find in favor of the nonmoving party." Id. The moving party has the burden of demonstrating that there is no genuine issue of material fact and may meet its burden "by demonstrating that 'there is an absence of evidence to support the nonmoving party's case.'" Id. at 325. A material fact in the case at hand is whether or not the Academy provided the Parents with notice of their parental rights, including the right to request a due process hearing. The Academy claims to have provided such notice to [Mother] on October 27, 2000. In support, the Academy offered the affidavits of two Academy employees who state that they met with [Mother] on October 27, 2000 and that she was provided with a notice of procedural safeguards on that date. The Academy attached a copy of the statement of parental rights to its motion. The Parents deny that they received notice of their parental rights from the Academy. In her supporting affidavit, [Mother] denies receiving such notice, denies receiving notice of or attending an IEP team meeting on October 27, 2000, and denies ever meeting with the two Academy employees who provided affidavits. However, exhibit A attached to the Parent's brief contains a Notice of Reevaluation addressed to [Mother] that is initialed by "BC" (one of the employees who provided an affidavit) and dated October 27, 2000, indicating that the statement of parental rights was sent with the notice on that date. Moreover, Parent's exhibit A also contains a Notice and Consent to Conduct Additional Tests that shows [Mother]' signature granting consent on October 27, 2000. While viewing the facts in a light most favorable to the Parents, I find that there is an absence of evidence to support their claim that they did not receive notice of parental rights. Based upon the evidence provided, I do not believe that a reasonable trier of fact could find in favor of the Parents; therefore, no genuine issue of material fact exists here. The material facts are as follows. The Student is a child who was identified as a child with a disability by the Milwaukee Public Schools (MPS) in 1998. He attended MPS during the 1999-2000 school year. The Student attended the Academy during the 2000-01 and 2001-02 school years. The Academy provided a notice of procedural safeguards to [Mother] on October 27, 2000. The notice contained detailed information about the right to request a due process hearing. The notice did not include information about the applicable statute of limitations for requesting a due process hearing. The 2002 school year ended on June 19, 2002. The Student re-enrolled in MPS for the 2002-03 school year. The Parents filed their request for a due process hearing against the Academy on July 21, 2003.Section 115.80(1)(a), Wis. Stats. establishes a one year statute of limitations period for filing due process hearing requests, as follows: For all of the foregoing reasons, it is hereby ordered that the above-captioned matter is dismissed with prejudice. Dated at Madison, Wisconsin on September 12, 2003.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
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. |