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Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS
In the Matter of [Student]
v.
Madison Metropolitan School District |
Case No.: LEA-03-036
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RULING AND ORDER ON MOTION FOR SUMMARY JUDGMENT
The Parties to this proceeding are:
[Student], by
Attorney Brett Petranech
Lawton & Cates, S.C.
10 E. Doty St., Suite 400
Madison, WI 53701-2965
Madison Metropolitan School District, by
Attorneys Joanne H. Curry & David Rohrer
Lathrop & Clark, LLP
740 Regent St., Suite 400
Madison, WI 53701-1507
Background
On September 8, 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 Brett Petranech, on behalf of [Mother] (the "Parent"), mother of [Student] (the "Student"), and referred the matter to this division for hearing. The Parent's due process hearing request alleges that the Madison Metropolitan School District (the "District") failed to provide the Student with a free appropriate public education ("FAPE") during the 1999-2000 school year and has denied him FAPE by refusing to approve his open enrollment at the Waunakee Community School District for the 2003-04 school year.
Pre-hearing telephone conferences were held on September 17 and October 1, 2003. On September 24, 2003, the District filed a motion for summary judgment with attached exhibits. The District based its motion 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 and that this tribunal lacks subject matter jurisdiction to order the remedy requested by the Parent, namely an order that the District cease and desist in denying the Student FAPE by refusing to approve his open enrollment to the Waunakee Community School District. The Parents filed a brief opposing the motion for summary judgment on October 7, 2003. The District filed a response brief on October 9, 2003.
Discussion
Summary Judgment Standard
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)). 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.
The Parent alleged that the District ignored her requests to evaluate her son for several months during the 1999-2000 school year and denied him FAPE during that school year. In her response brief, the Parent stated that she offered "evidence of that denial in support of her current claim only." However, the Parent did not submit any supporting affidavits or other evidence in support of her allegations. Moreover, even if the Parent's allegation regarding 1999-2000 is true, it does not prove that the District is currently denying the Student FAPE. Therefore, no genuine issue of material fact exists in this case. The material facts are as follows:
The Student is a child with a disability as defined in Wis. Stats. Chapter 115 and the IDEA. He attended school in the District during the 1999-2000 school year. The District held an IEP team meeting for the Student on June 29, 2000 and provided the Parent with notice of her right to request a due process hearing with the invitation to that IEP team meeting. The Student attended school in the Waunakee School District during the 2000-01, 2001-02, and 2002-03 school years under the state open enrollment program. In June 2003, the District denied the Student's continued open enrollment at the Waunakee Community School District. The District notified the Parent that the Student should enroll at East High School in the District for the 2003-04 school year. The District is prepared to implement the Student's most recent IEP at East High School upon his enrollment in the District. The Student has not enrolled or attended school in the District for the 2002-03 school year. The Parent appealed the District's open enrollment decision to the Department of Public Instruction (DPI), pursuant to § 118.51, Wis. Stats. The DPI upheld the District's decision on August 26, 2003. The Parent filed the request for a due process hearing on September 8, 2003.
Statute of Limitations
The Parent requested a finding that the District failed to provide the Student with FAPE during the 1999-2000 school year. By doing so, the Parent raised that allegation as an issue in the case, not merely offered it as evidence to support her allegation of a current denial of FAPE, as she argued in her response brief.
Section 115.80(1)(a), Wis. Stats. establishes a one year statute of limitations period for filing due process hearing requests, as follows:
A parent, or the attorney representing the child, may file a written request with the division for a hearing within one year after the refusal or proposal of the local educational agency to initiate or change his or her child's evaluation, individualized education program, educational placement or the provision of a free appropriate public education, except that, if the local educational agency has not previously provided the parent or the attorney representing the child with notice of the right to request a hearing under this subdivision, he or she may file a request under this subdivision within one year after the local educational agency provides the notice. …
The Parent did not file her request for a due process hearing within one year of the District's alleged failure to provide FAPE to the Student during the 1999-2000 school year. The District sent the Parent notice of her parental rights, including the right to request a hearing, on June 11, 2000. Therefore, the Parent's claim that the District denied the Student FAPE during the 1999-2000 school year has not been timely filed under § 115.80(1)(a), Wis. Stats. and must be dismissed.
Subject Matter Jurisdiction
The Parent's second claim is that the District is denying the Student FAPE during the 2003-04 school year by refusing to approve his continued open enrollment at the Waunakee Community School District. In the hearing request, the Parent stated that this denial of open enrollment "is preventing [the Student] from continuing to receive adequate programming in the Waunakee School District." The Parent did not allege that the District refused to enroll the Student in the District or failed to implement the Student's IEP in the District during the 2003-04 school year.
The Parent's claim of a current denial of FAPE is based solely on the District's denial of the Student's continued open enrollment in Waunakee. (As stated previously, the Parent's allegation that the District denied the Student FAPE in 1999-2000, even if true, is irrelevant to whether the District is currently denying the Student FAPE.) Indeed, the remedy sought by the Parent is an order requiring the District to cease and desist from denying the Student FAPE by refusing to approve his open enrollment to the Waunakee Community School District for the 2003-04 school year. In other words, the Parent is seeking to overturn the District's open enrollment decision. Open enrollment decisions are governed by Wis. Stats., Chapter 118. This tribunal does not have subject matter jurisdiction to overturn open enrollment decisions under the IDEA and § 115.80, Wis. Stats. If the Parent wishes to challenge the District's open enrollment decision, she may file an appeal in circuit court.
ORDER
For all of the foregoing reasons, it is hereby ordered that the above-captioned matter is dismissed with prejudice. The prehearing telephone conference scheduled for October 10, 2003 is cancelled.
Dated at Madison, Wisconsin on October 10, 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.
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