Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

The parties to this proceeding are:

Jane M. Knasinski
Davis & Kuelthau
111 E. Kilbourn, Ste. 1400
Milwaukee, WI 53202-3101

Ronald S. Stadler
Stadler & Schott
16655 W. Bluemound Road, Ste. 330
Brookfield, WI 53005

By letter dated January 29, 1997, Attorney Ronald S. Stadler filed a request for a Due Process Hearing with the Department of Public Instruction on behalf of [Student]. The hearing in this matter was subsequently held on October 22 and 23, 1997, and concluded on December 10 and 11, 1997. Attorneys Jane M. Knasinski and Gregory B. Ladewski appeared on behalf of the [Unnamed] School District. Post hearing briefs were filed on January 30, 1998, and on February 10, 1998.

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

1. [Student] (dob XXXXX) is currently residing in Idaho where she is attending high school at Rocky Mountain Academy (Rocky Mountain). She began attending Rocky Mountain in September of 1996.

2. Prior to attending Rocky Mountain, [Student] lived with her parents, [Parents], in [City], Wisconsin, where she was enrolled as a student at [City] High School.

3. [Student] began her freshman year at [City] High School in the Fall of 1994. During the first quarter of her freshman year, she received average grades. In the second quarter, [Student]'s grades declined.

4. During third and fourth quarter of [Student]'s freshman year, her grades remained below average, she had thirty-two unexcused absences, and she exhibited insubordinate behavior on at least four occasions.

5. [Student] regularly used marijuana and alcohol during the second semester of her freshman year. She also experimented with hallucinogenic mushrooms.

6. In April of 1995, [Student] was being treated for dysthymia, a mild form of depression.

7. [Student] began her sophomore year at [City] High School in the Fall of 1995. During the first quarter of her sophomore year, she was absent from twenty-five class periods. All of those absences were unexcused.

8. By letter dated September 7, 1995, the [Parents] requested that the [City] School District (District) develop a Section 504 plan for [Student].

9. On October 5, 1995, a staffing was held at [City] High School to discuss [Student]'s educational needs. Sandra Eisemann, [Student]'s treating psychologist, was present, inter alia, at that staffing and verbally informed those present that [Student] had a bipolar mood disorder. At the conclusion of their meeting, the [Parents] agreed to forego a Section 504 evaluation.

10. During the third quarter of [Student]'s sophomore year, her grades declined, she had seventy-seven unexcused absences in various classes, and she reported using illegal drugs, including LSD.

11. In February of 1996, the [}arents] requested a Section 504 meeting and also made an exceptional education referral for [Student]. In March of 1996, a Section 504 meeting was held. Based on Dr. Eisemann's verbal information regarding [Student]'s mood disorder, an initial accommodation plan was developed.

12. On April 9, 1996, [Student] received a citation from [City] police for criminal damage to property. On April 10, 1996, [Student] admitted to [City] police that she had possessed marijuana and a pipe, and was cited by police for battery, false imprisonment, and possession with intent to deliver a controlled substance.

13. By a letter dated April 10, 1996, the District informed [Parents] that [Student] would be suspended from [City] High School from April 10-12, 1996. On April 12, 1996, the District informed the [Parents] of its intent to expel [Student] from school.

14. Following [Student]'s suspension from [City] High School in April of 1996, her Section 504 plan was modified.

15. A manifestation hearing was held on May 2, 1996, to determine whether [Student]'s misconduct was a result of her Section 504 disability. The evaluating team concluded that [Student]'s conduct was premeditated and not a result of her disability. The team also noted that [Student] used drugs on a daily basis.

16. On May 2, 1996, the District sent a Notice of Multidisciplinary Team Findings to the [Parents]. The Notice indicated that [Student] did not have an exceptional education need and was therefore not eligible to receive special education.

    LI>Based on [Student]'s self-admissions, the M-team report dated May 1, 1996, found that [Student] used marijuana on a daily basis and that she used alcohol monthly.

17. The District and the [Parents] agreed to hold [Student]'s expulsion proceedings in abeyance provided that the [Parents] obtained residential drug treatment for [Student].

18. On May 29, 1996, [Student] admitted to [City] Police Officer Rob Engelhart that she had taken three cans of beer from a local convenience store without paying for them and then consumed the beer.

19. On July 11, 1996, [Student] was admitted to Hazeldon Center for Youth and Families (Hazeldon) for inpatient chemical dependency treatment. She was diagnosed as having cannabis and alcohol dependencies.

20. [Student] was discharged from Hazeldon on August 2, 1996. At the time of her discharge, she refused aftercare treatment and her prognosis was poor.

21. On August 21, 1996, the [Parents] met with District staff to review [Student]'s placement options for the 1996-97 school year. [Student] was not present. On August 26, 1996, District staff, [Mother], and [Student] met to discuss further educational placement options.

22. The [Parents] filed an application for admission to Rocky Mountain Academy on behalf of [Student] on August 27, 1996. [Student] subsequently enrolled at Rocky Mountain Academy and did not return to the [City] school district for the 1996-97 school year.

1. The [Unnamed] School District did not violate the Individuals With Disabilities [sic Education] Act or Chapter 115, Wis. Stats., when it concluded that [Student] did not have an exceptional education need.
2. The accommodation plan developed by the [Unnamed] School District under Section 504 of the Rehabilitation Act of 1973 on behalf of [Student] was appropriate.

3. The proposed placement of [Student] in the [Unnamed] School District for the 1996-97 school year was appropriate.

NOW, THEREFORE, IT IS HEREBY ORDERED that the due process matter of [Student] by her attorneys, Stadler & Schott, S.C., is dismissed with prejudice.

The [Parents] allege that their daughter [Student] was denied a free, appropriate, and public education (FAPE) when the [Unnamed] School District (District) determined that she was not a child with exceptional education needs under the Individuals With Disabilities [sic Education] Act (IDEA). They also maintain that the District's Section 504 plan was not appropriate for their daughter nor was her placement for the 1996-97 school year. Each of these claims will be addressed in turn.

Beginning in [Student]'s freshman year of high school and especially during the second semester of her freshman year, there was a noticeable decline in [Student]'s grades. As a result of [Student]'s declining grades and her many unexcused absences from class, [Parents] became increasingly concerned about their daughter's academic performance. As a result, [Father], at the outset of [Student]'s sophomore year, requested that the District develop a Section 504 plan for [Student]. Approximately one month later, in October of 1995, a staffing was held to discuss [Student]'s educational needs. District officials met with [Parents] and Sandra Eisemann, [Student]'s treating psychologist. During that meeting, Dr. Eisemann verbally reported that [Student] suffered from a bi-polar mood disorder, but provided no other documentation regarding her condition. At the conclusion of that meeting, the [Parents] agreed to forego a Section 504 evaluation of [Student]. Instead, those present agreed that direct communication between [Student]'s teacher and her parents was essential. They further agreed that [Student] needed structured help with certain classes, and that the assistance would be scheduled at a specific time and place. The District also encouraged [Parents] to contact the school in order to obtain further assistance or information about their daughter.

As [Student]'s sophomore year progressed, her grades continued to decline and she had an increasing number of unexcused absences. In February of 1996, the [Parents] again requested a Section 504 meeting and also referred [Student] for exceptional education. Based on Dr. Eisemann's information regarding [Student], the District developed an accommodation plan for her. The plan was modified in April of 1996, after [Student] was suspended from [City] High School. According to Dr. Eisemann, [Student]'s mood disorder could affect her concentration and her ability to learn. Consequently, the accommodation plans were designed to address those needs and to provide her with an educational benefit.

The first accommodation plan, for instance, was designed, in part, to assist [Student] in completing her assignments. Towards that end, [Student] was supposed to utilize a daily planner, seek assistance from her teacher with certain quiz corrections, and also meet with the school social worker. Unfortunately, [Student] did not avail herself of those opportunities. Instead, she continued to use drugs and alcohol, to skip school, and to not complete her assignments. After she was suspended from school, her accommodation plan was modified so that she could receive her instruction in an alternative program at the District Administrative Center. At that point, [Student] was facing serious legal trouble after having been charged with battery, false imprisonment, and possession with intent to deliver. Not surprisingly, it is at that point that she began regularly attending her classes. She began completing her assignments and homework, but still openly admitted that she continued to use illegal drugs and did not enjoy school. The accommodation plans nevertheless addressed her needs, provided her with an educational benefit, and were therefore appropriate.

Shortly after the modified accommodation plan went into effect, the District concluded its multidisciplinary team (M-team) evaluation of [Student]. The M-team found that [Student] did not meet the eligibility criteria for a child in need of exceptional education and that she was therefore not entitled to receive special education from the District. The M-team findings do, however, indicate that [Student] was drug dependent on both marijuana and alcohol. Accordingly, the M-team recommended that [Student] undergo in-patient drug treatment for her addiction. Implicit in the M-Team findings is the conclusion that [Student]'s academic difficulties were a direct result of her drug use, and not because of her alleged mood disorder.

While it is true that a school district need not postulate the cause of an emotional disturbance, it would be pure folly for a district to ignore the fact that a student has a substance abuse problem when assessing that child for exceptional education. In [Student]'s case, she was quite candid in her responses to the M-team members who evaluated her. For example, she told the school psychologist, Peter Ring, that she used both marijuana and tobacco products, and that her use of marijuana had become regular. She also confessed her dislike for school to him. [Student] made similar reports to Elena Neider, a diagnostician for the District. She told Ms. Neider, for instance, that she "drinks to get drunk" and that she usually "smokes marijuana daily." [Student] also reported that she was making the choice not to do well in school. She went on to explain to Ms. Neider that although she took her homework home, she would not do it. [Student] apparently realized that her peer group was not conducive to her academic success when she reported to Ms. Neider that "not hav[ing] a social life and not skip[ping]" would likely lead to her increased success at school. Perhaps most telling is a letter [Student] wrote to Dr. Eisemann in April of 1997, in which she admits that she now likes school and finds it much easier "without distractions like drugs and guys." (emphasis added)

The record is replete with [Student]'s admissions about her drug and alcohol use and abuse. She openly admitted that she first used marijuana in the eighth grade. Her drug use increased during her freshman and sophomore years of high school as did her truancy from school. Not surprisingly, there is a precipitous decline in [Student]'s grades as her drug use and truancy escalated thereby enabling the District to rightfully conclude that the onset of her inappropriate behaviors such as her truancy, declining grades, insubordinance, and police contacts directly coincided with her use of drugs.

The Individuals With Disabilities [sic Education] Act requires school districts to provide students who have disabilities with a free and appropriate public education. Substance abuse, however, is a medical, not an educational issue. Moreover, substance abuse is not a handicap remediable with services funded under special education. While the District has an obligation to provide educational benefit to its students, it does not have an affirmative obligation to treat substance abuse problems.

Although the [Parents] do not deny [Student]'s drug use, they nevertheless maintain that her educational decline was attributable to her mood disorder and her lack of special education, rather than to her drug use. Their position is unconvincing. To begin, in June of 1993, [Student] was initially seen by Dr. Meg Little, a psychiatrist, who concluded that [Student] had no major psychiatric disorder. In July of 1996, [Student]'s treating psychiatrist, Dr. David G. Crawford, noted in his psychiatric treatment summary of [Student] that she may have a bi-polar disorder, in part, because her biological mother allegedly had the disorder. However, he ultimately diagnosed [Student] as having dysthymia, not a bi-polar disorder. Notwithstanding her diagnosis, [Student] was an active user of illegal drugs. She routinely skipped school to be with friends who also used illegal drugs. She was arrested after having been involved in apparent drug related activity. And she also admitted to stealing beer from a convenience store. These behaviors are clearly drug-seeking in nature. There can be no doubt that her use and abuse of drugs, along with her truancy from school caused her academic decline, rather than a mood disorder.

[Student] herself had the same insight. She recognized that when drugs were not a daily part of her life that school could be likeable, indeed even easy. Moreover, when [Student] actually attended school, as she did during the last few months of the 1995-96 school year, she did well. She did not exhibit behavioral difficulties, she was cooperative, and she completed her assignments. Although she was in an alternative educational setting at the time, she was not receiving any exceptional education. I therefore remain unconvinced that [Student]'s academic decline was a result of a mood disorder, but rather a result of her unwillingness to attend class and do the work which was required of her.

Prior to the start of the 1996-97 school year, [Mother] met with the District to discuss placement options for [Student]. Several different proposals were discussed, including alternative educational sites within the District. Those options were ultimately rejected by the [parents]. They instead chose to enroll [Student] at Rocky Mountain Academy in Idaho, where she is currently a student. On or about August 27, 1996, the [Parents], through their attorney, requested that the District reconvene an M-team to reconsider its finding that [Student] was not a child with exceptional education needs. [Father] contacted Barbara Leadholm, the director of special education for the District, by telephone on or about September 6, 1996. He indicated to Ms. Leadholm that she could ignore the M-team request as a result of [Student]'s placement at Rocky Mountain Academy. Ms. Leadholm memorialized her phone conversation with [Father] in a handwritten memo.

Although [Father] did not specifically recall having made that remark to Ms. Leadholm, Ms. Leadholm's notes and her credible demeanor during her testimony lead me to conclude that [Father] did, in fact, make that statement to her. I am further convinced that [Father] effectively withdrew his request for an evaluation because [Student] was not going to return to the District for at least one full year. In addition, the District remained willing and able to reevaluate [Student] upon her return to the District.

Before [Student] left the District to attend school in Idaho, the District proposed two possible educational alternatives for her, both of which offered a structured environment, not unlike the program at the District Administrative Center (DAC) in which she had done well. Based on [Student]'s success with the programming at the DAC, these proposals were reasonably calculated to offer [Student] an educational benefit. The [Parents] nevertheless rejected them and instead enrolled [Student] in an out-of-state school prior to the start of the District's 196-97 school year.

In conclusion, I believe the M-team correctly concluded that [Student] was not a child with exceptional education needs. As a result of the M-team finding, [Student] was not entitled to receive special education under the IDEA. Because she was not entitled to receive special education, the District was under no obligation to develop an IEP for her. Accordingly, the District did not deny [Student] a free and appropriate public education. I also find that the District's proposed placements for the 1996-97 school year were appropriate.

Dated at Madison, Wisconsin, this 13th day of March, 1998.