Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

This matter was commenced on January 12, 1997, by [Father], father of [Student], filing a letter with the Department of Public Instruction requesting a Due Process Hearing. A hearing was subsequently held on February 27, 1997. [Father] appeared in person, without counsel. Attorney Gwen Kuchevar appeared on behalf of the [Unnamed] School District. The transcript of this proceeding was received on March 5, 1997.

Based upon the entire record in this case, this is the final decision of the undersigned administrative law judge.

1. [Student] was born on [birthdate]. He is sixteen years old and is currently enrolled as a student at the [City] High School.

2. In February of 1995, [Student] was placed in a program for emotionally disturbed students at the [City] High School. He continues to receive special education services for his emotional disability.

3. [City] High School employs three administrators. They include Sharon Kabes, Roger Buchholz, and Tom Carroll.

4. Dr. Sharon Kabes is the principal at the [City] High School. On February 7, 1997, Dr. Kabes participated in an Individualized Educational Plan (IEP) meeting concerning [Student].

5. Tom Carroll is an assistant principal. He is responsible for student affairs and discipline at [City] High School. [Father] objects to Tom Carroll being allowed to have any contact, disciplinary or otherwise, with his son [Student].

6. At the February 7, 1997, IEP meeting an alternative disciplinary plan was developed for [Student]. (Exhibit 1, p. 144) The plan allowed for two administrators, other than assistant principal Tom Carroll, to be the first two individuals to handle any disciplinary problems involving [Student]. If either of those two administrators was not available, Mr. Carroll, in the presence of another certified staff person, would handle [Student]'s discipline.

7. On February 17, 1997, [Father] objected to the proposed addendum to [Student]'s IEP because Tom Carroll remained as one of the individuals who could potentially be called upon to discipline [Student].

8. Non-compliant student behavior is a basis for a [City] High School administrator to contact the local police and request they respond to the school to address a disciplinary concern.

9. On two occasions during the 1996-97 academic year, police intervention was requested by Tom Carroll to respond to [Student]'s behavior.

10. Between September 5, 1996, and February 11, 1997, [Student] received eighteen (18) disciplinary reports for his behavior.

11. Janet Hanson Gerber is a teacher of the emotionally disturbed at [City] High School. [Student] is one of her students. He is in her classroom at least one hour each day.

12. At [Father]'s request, an IEP meeting was held on December 18, 1996. The meeting was convened to address [Father]'s concerns involving [Student]'s transitional programming and discipline.

13. During the meeting on December 18, 1996, [Father] requested that [Student] be placed in a computer programming course at the University of Wisconsin-[City]. When [Father] made that request, [Student] was failing his high school-level computer programming class.

14. [Student]'s proposed IEP dated December 19, 1996, specifically provides transitional services for him. In particular, it provides that he will participate in a service credit program in the computer lab at the University of Wisconsin-[City].

15. [Student] has worked in the computer lab at the University of Wisconsin-[City] since January of 1997, and receives academic service credit for his work there. His placement in the computer lab constitutes a part of the transitional services he is receiving through the [Unnamed] School District.

16. [Student] attended three computer programming classes at the University of Wisconsin-[City] without the knowledge or consent of the administration at the [City] High School.

1. The disciplinary procedures that the District has proposed to address [Student]'s behavior, including contacts he may have with the assistant principal Tom Carroll, are appropriate and consistent with [Student]'s educational needs pursuant to the Individualized with Disabilities Education Act (IDEA).

2. There are insufficient facts in the record to establish by a preponderance of the evidence that the District failed to provide appropriate transition services to [Student] under s. PI 11.05 (4), Wis. Admin. Code.

NOW, THEREFORE, IT IS HEREBY ORDERED that the proposed addendum to [Student]'s IEP which was presented at the February 7, 1997, IEP meeting shall be adopted and incorporated into [Student]'s current IEP in order to address any future disciplinary needs of his.

IT IS FURTHER ORDERED that [Student]'s transitional services are appropriate and that he shall not enroll in a college-level computer programming course at the UW-[City] unless and until he is able to satisfactorily demonstrate to the teachers and administrators at [City] High School that it is an appropriate transitional service for him.

[Student] began receiving special education services at [City] High School in March of 1995. Since the 1996-97 school year began, he has been in mainstreamed classes, with the exception of one class period each day, during which he receives instruction from special education teacher, Janet Gerber Hanson. At an IEP meeting held in December of 1996, [Father], [Student]'s father, requested that [Student] be placed at the University of Wisconsin-[City] as part of his transitional services. He also expressed concern with the way in which [Student] had recently been disciplined. In particular, he objected to Assistant Principal Tom Carroll being allowed to have any further contact with [Student]. His objection to that type of contact apparently stems from two incidents at the high school in which Mr. Carroll contacted the local police to address [Student]'s behavior.

The [Unnamed] School District utilizes a progressive approach to discipline. Minor infractions may result in either a warning or a detention. More serious wrongdoing may lead to additional detentions, in-school suspensions, or out of school suspensions. Repeated infractions or other serious violations of school rules may ultimately lead to expulsion, including repetitive noncompliant behavior. Over the past academic year, Mr. Carroll has contacted the local police between eight and ten times and requested they respond to the high school for student disciplinary matters. In November of 1996, and again in January of 1997, Mr. Carroll contacted the police based on [Student]'s failure to comply with school rules.

In response to those incidents, [Father] requested that Mr. Carroll not be allowed to have any further contact with [Student]. The District, in turn, developed an addendum to [Student]'s IEP which directly limited the amount of contact that Mr. Carroll could have with [Student]. It specifically provided that the two other high school administrators, Dr. Kabes or Mr. Buchholz, be the first two individuals to handle a disciplinary incident in which [Student] may be involved. In the event that either of those two administrators is not available, Mr. Carroll, in the presence of another certified staff person, would handle the matter. However, [Father] did not find that arrangement acceptable.

The [City] High School only has three administrators. Frequently, one or more of them is not present in the building. Dr. Kabes, for example, is often called upon to attend meetings outside of the school. As the activities' director for the District, Mr. Buchholz is likewise not always able to be in the high school and is therefore not available to handle all disciplinary matters which may involve [Student]. Mr. Carroll, on the other hand, is the designated disciplinarian at the high school. It is his primary responsibility to handle student discipline. However, because [Father] expressed his displeasure with the way in which Mr. Carroll handled his son's discipline, the District attempted to accommodate his wishes by minimizing any future contacts with [Student]. Those efforts are reflected in the proposed addendum to the IEP. (Exhibit 1, p. 144)

While few parents would relish having the police called to address their child's behavior in the school setting, certain types of student behavior warrant such action. The issue at the due process hearing, however, was not whether or not Mr. Carroll was justified in calling the police, but, rather, what future disciplinary measures could be implemented by the District in order to address [Student]'s behavior. As part of that issue, consideration was to be given as to what role Mr. Carroll would play in future disciplinary matters involving [Student]. The following testimony by Dr. Kabes' illustrates quite clearly why it is not possible to completely eliminate Mr. Carroll's involvement in disciplinary matters:

Q. (by Ms. Kuchevar) [W]hat was your understanding of the reason for working out this disciplinary alternative?

A. [Father] said that he did not want Mr. Carroll to serve as the administrator for discipline for [Student], and so we developed an addendum that would allow -- not completely remove Mr. Carroll, but would -- would -- that Mr. Carroll would not be the administrator dealing with [Student] unless there was no other administrator in the building. At the present time we have two, Roger Buchholz, who is activity director and assistant principal, and Mr. Carroll, who is assistant and principal responsible for student affairs and discipline. And then myself as the full principal.

Q. What do you recall as being [Father]'s reasons for Mr. Carroll not to be involved?

A. [Father] has repeatedly said that he felt Mr. Carroll dealt unjustly with [Student], and that was -- that was his -- I did make -- have a statement in my notes here. Let me look at that.

Q. Well, but that is your understanding that [Father] believes that?

A. Yeah, yeah. That his feeling was that he hadn't dealt fairly with [Student].

Q. Okay. But the alternative, the addendum that's been developed on February 7th, does provide that Mr. Carroll is going to have to maintain some involvement in [Student]'s discipline, correct?

A. That's correct.

Q. Why must Mr. Carroll remain involved?

A. Okay. There are many instances when I am not in the building or not available, and so that would be one instance. And if Mr. Buchholz were not available, as he is activities director [sic], he's often out of the building because he's activities director [sic] for the district, and so at that time there would be no other administrator available except Mr. Carroll.

Q. So there are no alternatives at some point in which Mr. Carroll's involvement with [Student] on an administrative level?

A. Also, Mr. Carroll is the disciplinarian in the school. He's frequently in the hallways, and if something occurs and he's present, he would be the person who would deal with the incident, whoever or whatever the incident was.

Q. So it's part of Mr. Carroll's responsibility to maintain a visible presence within the school?

A. That's correct.

Q. School building between classes and that sort of thing?

A. That's correct.

(Tr., pp. 60-62)

Inasmuch as the District has attempted to accommodate [Father]'s request that [Student] not have any contact with Mr. Carroll, there remains the distinct possibility that the two may at least have incidental contact. Moreover, there may well be instances in which [Student]'s behavior may require discipline, and the only administrator available to handle it may be Mr. Carroll. To the extent that it is possible to avoid such interactions, the District has made every effort to do so. Nevertheless, there may be instances when such engagements are unavoidable. But even when they are unavoidable, the proposed addendum requires that another certified staff member of the high school also be present when [Student] is called to the main office for discipline. By including such a provision, [Father] can be assured that [Student] is in the company of another adult who can further ensure that the matter is handled appropriately.

In addition to the disciplinary concerns, [Father] was also displeased with the transitional services that had been implemented for [Student]. In particular, he was dissatisfied because [Student] had not been placed in a college-level computer programming course at the University of Wisconsin-[City] (UW-[City]). He first expressed his concerns in December of 1996, during an IEP meeting. Following that meeting, the attendees agreed that [Student] would begin working in the computer lab at the UW-[City] and would receive service credit for doing so. Although [Father] inquired about the possibility of [Student] also taking a computer programming course in addition to the service credit, that idea was rejected, in part, because [Student] was not doing well academically at the high school, and, in fact, was failing a good many of his classes at the time [Father] suggested the college programming course.

The District also had several other concerns which led to its decision not to place [Student] in the UW-[City] computer programming course. To begin, [Student] has repeatedly demonstrated organizational difficulties. More specifically, he frequently fails to take adequate class notes and often does not turn in daily homework assignments. Despite numerous attempts to implement different organizational techniques to assist [Student], he remains stymied in this regard, and his poor grades reflect that. Accordingly, his special education teacher, Ms. Gerber, expressed her reluctance to place [Student] in a college-level course where the class assignments and expectations are simply made known to students through a syllabus distributed at the beginning of the semester, and where the course instructor makes little or no attempt to determine whether the students are completing the assigned coursework. Instead, Ms. Gerber believed that the service credit was a more appropriate option, initially, and that the college course could follow in turn. On this point, Ms. Gerber responded to Attorney Kuchevar's question as follows:

A. [A]nd, you know, with college work, they really -- they give you a syllabus, they give you a list of assignments you're going to have done at the beginning of the semester, and then that's it. They don't care if you do it or not. I guess, you know, I felt like this could be used as -- this class could be used as a carrot, an incentive for [Student] to maybe, you know, help him to get his grades up so that he could take it. I was real interested in the idea of having this service credit at the college, because it would acclimate [Student] to that kind of culture. He'd have friends there in the computer lab. He would have teachers or adults whom he could talk with so that when he started a class, you know, he had somewhere to go if he needed some help. And we all knew that, you know, computer class would, of course, be the first one that [Student] would take. So you know, he would already be familiar with all that so when he took a class, that might help him be successful.

I'm really concerned about not having [Student] get set up in a cycle of failure at the college. I really want him to be successful, and so I wanted to give him that gradual introduction, give him the relationships that provide the nurturing and the emotional experience and help that he needs to make it through.

Before taking the college course, Ms. Gerber firmly believed that it was necessary for [Student] to successfully complete his service credit, to have a workable organizational plan in place, and to have passing grades in his other high school coursework. She also believed that by successfully completing his service credit first that [Student] would be demonstrating that he was comfortable in a college setting, that he was a reliable worker who both students and staff could count on, and that he was therefore productive.

Admittedly, both Ms. Gerber and Dr. Kabes also expressed reservations about placing [Student] in the UW-[City] programming course based on suspicions each had that he had misused at least two different computers at the high school earlier in the school year. Although those suspicions could not be conclusively confirmed, there was one instance during this past academic year when [Student]'s computer access was restricted for a period of time by Dr. Kabes. (Exhibit 1, p. 168)

Despite their concerns, however, both Dr. Kabes and Ms. Gerber were supportive of the transitional placement at the college. They ultimately believed that there should be a sequential requirement that [Student] first complete his service credit satisfactorily and continue working on improving his high school coursework, before being allowed to enroll in a college computer programming course. The college course remains an important incentive towards which [Student] can strive, and therefore continues to be a future transitional service possibility.

[Student] is undoubtedly a bright, young man with a talent for understanding and utilizing computers. He is currently involved in a service credit program at the UW-[City] which enables him to utilize his computer skills and also affords him the opportunity to interact socially with college students and staff. By all accounts, he is doing well in this placement. He is gaining a valuable community experience, exploring a possible career option, and receiving useful guidance. Unfortunately, he is not meeting with the same success in several of his other high school courses. Indeed, one example illustrates this well. By his own admission, [Student], unbeknownst to the District, took it upon himself to attend the first three classes of a computer programming course at the UW-[City]. He did so without the District's knowledge or permission thereby calling into question his judgment and trustworthiness. More importantly, he attended these classes at a time when his high school coursework was noticeably suffering.

While a college-level computer programming course is clearly an attractive option to [Student], he has not demonstrated to the teachers and the administrator at [City] High School that he is sufficiently ready for it. That is not to say, however, that it cannot be considered in the future. In fact, if [Student] remains on track by successfully completing his service credit and by consistently improving in his other coursework, it is likely that the District would consider such a possibility. However, in the meantime, [Student]'s current IEP as it relates to his transitional services is appropriate to address his existing educational needs. Furthermore, the proposed addendum to [Student]'s IEP which was designed to address his future disciplinary needs is likewise appropriate.

Date at Madison, Wisconsin, this 1st day of April, 1997.