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Before The
The Parties to this proceeding are: [Address] Janesville School District, by Quarles & Brady, LLP Suite 2040 411 East Wisconsin Avenue Milwaukee, WI 53202-4497
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 [Mother] and [Father] (the "Parents") on behalf of [Student] (the "Student") on September 04, 2003 and referred the matter to this division for hearing. On September 17, 2003, the Janesville School District (the "District") filed a motion to dismiss. The Parents filed their response on September 22, 2003. Additional telephone pre-hearing conferences were held and the decision in this matter is due on October 20, 2003. The motion to dismiss is granted on the ground that the hearing request does not allege any ground upon which relief may be granted. There is nothing in the due process hearing request that alleges that the Student has been denied a free and appropriate public education.Whether or not any relief can be granted in a due process hearing under IDEA when the Parents disagree with the rest of the Student's Individualized Education Program ("IEP") team about the Student's behavior affecting his learning or the learning of other.
Motions to dismiss are appropriately treated as motions for summary judgment when evidentiary material is considered. See Wis. Stat. § 802.06(3); Envirologix Corp. v. City of Waukesha, 192 Wis.2d 277, 287, 531 N.W.2d 357, 362 (Ct.App. 1995). The grant of summary judgment is appropriate when 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). No genuine issue of material fact exists here. The District was required to give the Parents notice of all IEP meeting and the opportunity for meaningful participation at each meeting. 20 U.S.C. 1414(d)(1)(B) and 34 C.F.R. §300.344. The Parents attended all of the IEP meetings for the Student and participated in the meetings. Although they believed that the IEP team had made a different decision regarding whether or not the Student's behavior impeded his learning or that of others at the May 13, 2003 meeting, they attended additional meetings on June 10, August 5 and August 25, 2003 in which they voiced their disagreement with this decision. Even though the Parents objected, the IEP team decided that the Student's behavior impeded his learning and that of others and that decision is reflected in the IEP (District Exhibit A). The IEP team may make decisions with which the Parents will disagree. The IDEA does mandate that parents shall be participants in the IEP meeting. Courts have ruled that being a participant does not necessarily involve parents having a "vote" equal to that of the school personnel who are the other members of the IEP team. Buser v. Corpus Christi Indep. Sch. Dist., 20 IDELR 981 (S.D. Tex. 1994), aff'd, 22 IDELR 626, 51 F.3d 490 (5th Cir. 1995), cert. denied, 516 U.S. 916 (1995), (rejecting the parents' "equal vote" interpretation of the IDEA and holding that equal participation does not mean equal voting power; to adopt the parent's argument would in effect allow parents to prevent the implementation of an IEP anytime there is a disagreement, contrary to IDEA's intent). Ultimately, parents have no veto power over IEP decisions, short of disenrollment. There is no disagreement that the Student displays certain behaviors that impedes his learning or that of others. Throughout the school year for 2003-2003, the Student hit, bit or pushed other students and/or teachers (School District Exhibit A). The Parents have argued that the Student's actions are not behaviors, but reactions caused by the Student's disability. The definition of behavior is the actions or reactions of persons or things under specified circumstances. American Heritage Dictionary, 1980. By identifying the Student's actions as behaviors, the IEP is not identifying the Student as intentionally behaving in a certain way, it is simply stating the fact that he has behaviors that impede his learning or that of others. In this case, the Student has exhibited those behaviors. Once the IEP team came to a consensus that the Student's behavior impeded his learning or that of others, they were required to consider strategies, including positive behavioral interventions, strategies and supports to address that behavior. 20 U.S.C. §1414(d)(2)(B)(I). The District put together the sensory plan to address the Student's behavior (District Exhibit A). Although the Parents agree that a sensory plan is necessary for the Student, they disagree with the placement of the plan within the IEP. They have argued that a sensory plan should be part of the Student's goal and objectives and present level of performance. The location of the sensory plan within the IEP does not change the result that a sensory plan has been provided for the Student in the IEP. The location of the sensory plan does not result in any failure to provide a free and appropriate public education for the Student. Finally, the Parents argue that this particular sensory plan is not appropriate for the Student because they do not believe the occupational therapist who prepared the plan is an expert in sensory plans. Parents are not legally entitled to choose teachers or other instructional personnel. Although schools may choose to let the child's multidisciplinary (placement) team make such decisions, the IDEA permits school districts to treat these matters as administrative decisions to be made by school personnel. Letter to Wessels, 16 IDELR 735 (OSEP 1990). If challenged on their decisions regarding the assignment of educational personnel, the school district has to be prepared to show that its staff is qualified within the meaning of the IDEA and the child is receiving FAPE. See Slama by Slama v. Independent Sch. Dist. No. 2580, 39 IDELR 3 (D. Minn. 2003). Under the IDEA, a qualified teacher is a teacher who is certified according to state law. "Qualified" is defined in the IDEA as "a person has met SEA approved or recognized certification, licensing, registration, or other comparable requirements that apply to the area in which he or she is providing special education or related services." 34 CFR 300.15 (1997). In this case, qualified personnel prepared the sensory plan. The plan was prepared by an occupational therapist with a Bachelor of Science in occupational therapy plus 18 graduate credits in special education as well as attending many continuing education courses that deal with sensory issues (resume of Diane Brandt). In the final analysis, there is no relief to grant in this case. There has been no allegation that the IEP or the sensory plan in the IEP has resulted in any loss of meaningful educational benefit to the Student.It is hereby ordered that this request for a due process hearing be dismissed with prejudice. Dated at Madison, Wisconsin on October 20, 2003.DIVISION OF HEARINGS AND APPEALS 5005 University Avenue, Suite 201 Madison, Wisconsin 53705-5400 Telephone: (608) 266-7709 FAX: (608) 264-9885 By:__________________________________ Diane E. Norman 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. |