Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

In the Matter of [Student]
v.
Milwaukee Public Schools

 
Case No.: LEA-04-005

RULING ON SUMMARY JUDGMENT MOTION

The Parties to this proceeding are:

[Student], by [Father & Mother]
[address]

Milwaukee Public Schools, by

Susan Bickert, Assistant City Attorney
Milwaukee City Attorney's Office
200 E. Wells Street, Suite 800
Milwaukee, WI 53202-3515

Procedural History

There were two separate prior due process hearing requests relating to the same student, LEA-03-013 and LEA-03-021, both of which were assigned to ALJ William Coleman. The cases were consolidated for hearing. A hearing was held on May 29, 2003, and July 14, 2003. A final Decision and Order was entered by ALJ Coleman on September 9, 2003.

The ALJ determined that the Student did not have a "speech or language impairment" as defined by state law and was not a "child with a disability". (LEA-03-013) In the related case, ALJ Coleman determined that the MPS reevaluation of the Student was appropriate and that an IEE was not required. (LEA-03-021)

On October 16, 2003, the Student filed an action in the U.S. District Court, Eastern District of Wisconsin, appealing ALJ Coleman's Order and raising other causes of action. The appeal is currently pending before the Honorable Judge Lynn Adelman.

The instant due process hearing request was filed on February 21, 2004. A telephone prehearing conference was held on February 27, 2004.

Pursuant to the schedule agreed to by the parties at the prehearing conference, on March 10, 2004, the Milwaukee Public Schools (MPS) filed a summary judgment motion and supporting materials. After previously agreeing to the summary judgment motion and schedule, the Student subsequently objected to the summary judgment motion on March 2, 2004. That objection was and is overruled and the briefing for the motion went forward. On March 18, 2004, the Student responded by brief and attached exhibits. On March 22, 2004, at the request of the Student, a telephone conference was held to hear arguments relating to the motion. On March 23, 2004 the MPS filed its reply brief.

Summary Judgment Methodology

In reaching the decision on the Motion, the Administrative Law Judge has applied the standard summary judgment methodology as described by the Wisconsin Supreme Court. The first step of the standard methodology used by a trial court when faced with a motion for summary judgment requires the court to examine pleadings to determine whether a claim for relief has been stated and a material issue of fact presented; if a claim for relief has been stated, inquiry then shifts to the moving party's affidavits or other proof to determine whether the moving party has made a prima facie case for summary judgment. If the moving party has made a prima facie case for summary judgment, the court must examine affidavits and other proof of the opposing party to determine whether there exists disputed material facts or undisputed material facts from which reasonable alternative inferences may be drawn sufficient to entitle the opposing party to trial. Voss v. City of Middleton, 470 N.W.2d 625, 162 Wis. 2d 737 (1991).

The instant due process hearing request raises five issues: 1.) Whether the District has provided all relevant records and/or destroyed records of the Student, and whether the District has failed to meet to explain records; 2.) Whether the District has provided appropriate standardized testing; 3.) Whether the District has complied with the previous Order issued by the ALJ; 4.) Whether the District has failed to pay for a placement change, and 5.) Any other issue which was considered in the affirmative defense of failure to exhaust administrative remedies in the Federal lawsuit appealing the previous ALJ's Order. The MPS concedes that the Parents' complaint "arguably states a claim for relief." Accordingly, the inquiry shifts to whether the MPS has made out a prima facia case for summary judgment.

Res Judicata

The MPS argues that the doctrine of res judicata bars the Parent's current due process hearing request. The MPS is correct that the doctrine of res judicata has been applied in both Federal Courts and in due process hearing requests before the Division of Hearings and Appeals in the State of Wisconsin. (See Drinker v Colonial School District, 888 F. Supp. 674, 680 (E.D. Pa. 1995), aff'd, 78 F 3d 859 (3rd Cir. 1996) and 25 IDELR 691 (1997).

The previous due process hearing requests, cases LEA-03-013 and LEA-03-021, were assigned to Administrative Law Judge William Coleman (the ALJ) and were consolidated for hearing. Bickert Aff., Exh. H. p. 2. A hearing was held on May 29, 2003 and July 14, 2003. Bickert Aff., Exh. H. The ALJ determined that the Student did not have a speech or language impairment as defined by state law and was not a child with a disability. The ALJ further determined that the MPS reevaluation was appropriate and that an IEE was not required. The September 3, 2003, Order addressed a number of issues currently raised by the Student.

The Records Issue

In the present due process hearing request, the Parents challenge aspects of the production of their daughter's education records, just as they did in their earlier due process hearing. In the earlier case, the ALJ determined that to the extent that the production of records was relevant to eligibility and evaluation issues, he would receive evidence regarding the production of records. Bickert Aff., Exh. G; Exh. H, p. 2. In his final decision the ALJ found that MPS had provided the Parents with access to all pupil records, and had not purged, destroyed, or intentionally failed to disclose to the Parents any pupil records. Bickert Aff., Exh. H, p. 5. The matter of the production of records has been litigated and resolved. The Parents are barred by the principle of res judicata from relitigating this issue. The Student's complaint is vague in terms of when such destruction of documents and or failure to produce or explain such documents took place. Given ALJ Coleman's determination that the Student is not a "child with a disability", the ALJ does not have jurisdiction over any such acts subsequent to his September 9, 2003, Order. Any such acts prior to that date were addressed in that Order.

Standardized Testing Issue

Another claim raised by the Parents in the instant due process claim relates to the alleged failure of the MPS to conduct standardized testing of the Student. The Student claims that "ALJ Coleman ordered the District to follow the IEP regarding the 'stay put'. Therefore, MPS must administer a standardized test at least annually." (Student brief, p. 3)

The issue of the need for standardized testing was specifically addressed in the prior due process hearing. In his decision, the ALJ found:

8. Before the scheduled IEP team meeting, the IEP team participants were polled as to whether they believed additional tests and data were needed for the revaluation. The Parents informed MPS that they did not believe additional testing was necessary. Other members of the IEP also reported that they did not believe additional testing was necessary.

Bickert Aff., Exh. H, p. 4. The ALJ found that MPS conducted its reevaluation of the Student in accordance with state criteria and that "[t]he IEP team members reasonably concluded that the data and information available was sufficient from which to make a determination whether Student met the criteria for speech language impairment in Wis. Admin. Code § PI 11.36(5)." Bickert Aff., Exh. H, p. 9. The doctrine of res judicata bars the Parents from relitigating the issue of the appropriateness of standardized testing.

The Student's claims relating to an alleged failure to perform standardized testing are directly contradicted by ALJ Coleman's Finding #8 in the September 9, 2003 Order. That Order did not require annual standardized testing of the Student, nor did it affirmatively require compliance with the existing IEP. Rather, the Student was found to longer be a "child with a disability" eligible for special education services. The District has been voluntarily continuing to provide services to the Student. However, even under the IEP referenced by the Student, there was no requirement of annual standardized testing. Rather, the IEP provides as follows: "Procedures for measuring the Student's progress toward the annual goal: Formal and informal test, therapy data, observation, teacher report, parent report." Bickert Aff. #2, Exh. A. The IEP further provides, "Upon review: Goal met." Bickert Aff. #2, Exh. A. The essential purpose of formal testing, along with other criteria, is to help determine whether goals have been met. This determination was made, was upheld by ALJ Coleman, and is currently being appealed. Under these circumstances, summary judgment on this issue is appropriate.

The Division Does Not Have Jurisdiction to Review the Order of ALJ Coleman

The third issue described above is barred because the Division does not have jurisdiction over compliance with the previous Order of the ALJ. The decision of ALJ Coleman has been appealed to the Eastern District Court of Wisconsin, and that appeal remains pending. This ALJ does not have jurisdiction to review ALJ Coleman's decision. 34 CFR 300.510 That authority rests with the U. S. District Court which is hearing the appeal of ALJ Coleman's Order.

Further, any new issues with respect to compliance with ALJ Coleman's Order must be properly raised to the state educational agency (SEA), the State of Wisconsin, DPI, through the complaint process rather than through a second due process hearing. 34 CFR 300.661 related to "minimum state complaint procedures" provides as follows:

"(3) A complaint alleging a public agency's failure to implement a due process decision must be resolved by the SEA."

The ALJ clearly does not have jurisdiction to review compliance with ALJ Coleman's September 9, 2003, Order. The MPS motion for summary judgment on this issue is granted.

Placement Payment Issue

The Student argues that she is entitled to a hearing to determine whether the MPS must reimburse the parties for the Students placement at a private daycare.

The issue relating to the alleged failure of MPS to make payments in connection with a change in placement is barred by the one-year statue of limitations. Section115.80(1)(a), Stats. (1999-2000), establishes a one year limitations period for requesting a due process hearing and provides in pertinent part as follows:

"A parent…may file a written request with the division for 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…"

Any reimbursement claims relating to a placement change prior to February 21, 2003, are barred by the statute of limitations.

Further, this issue is similarly prohibited by the doctrine of res judicata. ALJ Coleman made the specific finding that bars the current claim for reimbursement:

3. For the IEP for the period October 2, 2001 to October 1, 2002, an IEP team determined the Student's placement to be Thoreau school, operated by MPS. The Parents chose not to enroll the Student at Thoreau, however, but instead placed her in a private school at their own expense, where she continued to receive her education. Though enrolled in this private school, MPS has provided special education to the Student.

Bickert Aff., Exh. H, p. 3. The Student argues that the Finding of ALJ Coleman was "gross error". However, that is clearly an issue for the pending appeal in Federal Court and not a due process hearing. This claim is barred by the doctrine of res judicata. The Parents are prohibited by the doctrine of res judicata from relitigating his issue.

Further, the September 9, 2003 Order of ALJ Coleman also specifically found that the Student was no longer "a child with a disability" and that there was no denial of FAPE to the Student. There is no legal basis upon which to require reimbursement for a private school placement under these circumstances. [See: 34 C.F.R. § 300.403(c)] Under Wisconsin law, the sole authority to order reimbursement for a private school placement is set forth in § 115.791, Wis. Stats.

This statute allows a court or hearing officer to require the local educational agency (LEA) to reimburse the parents for the cost of enrollment in a private school, if the court or hearing officer finds that the LEA had not made a free appropriate public education available to a "child with a disability" in a timely manner before the enrollment. At the most recent IEP meeting before the removal of the child from the LEA, the parents must inform the IEP team of their concerns, their rejection of the placement proposed by the LEA, and their intent to enroll the child in a private school at public expense, or give ten days written notice of such matters. Failure to do so can result in the denial of reimbursement.

The allegations of the Parents do not fit the above scenario in any manner, and summary judgment is therefore appropriate.

Exhaustion of Administrative Remedies

The Student also raises a catch-all issue seeking to have the instant due process hearing consider "all items which (the Federal lawsuit) 03-CV-1014 states should be excluded by" … (the MPS) "because of administrative remedies". The ALJ concurs with counsel for the MPS that the District is not required to disclose its "litigation strategy from a separate case, and (that) the burden of identifying their (due process) complaints falls squarely on the Parents." (MPS Brief, p. 6) This issue does not state an affirmative claim for relief which could reasonably be granted. A due process hearing requires an affirmative statement of a claim for relief within the jurisdiction of the hearing officer. This issue fails to state such a claim, and is dismissed.

Summary

All of the five issues raised by the Student in the instant due process hearing have either been previously decided and are barred by the doctrine of res judicata (Issues 1, 2 and 4) or are outside the jurisdiction of the Division (Issue 3) or fail to state a claim (Issue 5). Further, any claims prior to February 21, 2003 are barred by the one year statute of limitations. Accordingly, summary judgment is appropriate and this matter must be dismissed.

ORDER

WHEREFORE IT IS HEREBY ORDERED, that the due process hearing be DISMISSED, as set forth above. The hearing set for April 30, 2004, is accordingly cancelled.

Dated at Madison, Wisconsin on March 24, 2004.

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:________________________________
Jeffrey D. Boldt
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. It is the responsibility of the appealing party to send a copy of the appeal to the Division of Hearings and Appeals. The record will be filed with the court within 30 days of the date the Division of Hearings and Appeals receives the appeal.