Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

Ms. JoAnn Hart
Melli, Walker, Pease & Ruhly, S.C.
P.O. Box 1664
Madison, WI 53701-1664

Mr. Jeffrey Spitzer-Resnick
Wisconsin Coalition for Advocacy
16 N. Carroll, Suite 400
Madison, WI 53703

By letter dated May 19, 1997, Attorney Jeffrey Spitzer-Resnick 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 July 23 and 24, 1997, and concluded on September 22, 1997. Ms. JoAnn Hart appeared on behalf of the [Unnamed] School District. Post hearing briefs were filed on October 13, 24, and 31, 1997.

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

[Student] began attending the Wisconsin School for the Deaf (WSD) in 1989. Her primary means of communication while there was American Sign Language (ASL). [Student] received passing grades while at the WSD.

English is a second language for students who first learn to communicate in American Sign Language. Students who communicate in ASL are often two or more years behind their hearing peers in English reading comprehension.

In addition to her attendance at the WSD and consistent with her Individualized Education Plans (IEP), [Student] attended some maintstreamed classes at Delavan-Darien High School during the 1993-94 and 1994-95, school years.

On May 11, 1995, an IEP review meeting was held to determine whether [Student] had successfully completed the goals and objectives identified in her IEP. During that meeting, [Student]'s impending graduation from the Wisconsin School for the Deaf was discussed.

In conjunction with the May 11, 1995, meeting, a new IEP was developed for [Student]. The beginning date of the IEP was June 11, 1995, with an ending date of September 1, 1995. The IEP provided for [Student] to continue in the hearing impaired program until her graduation in June of 1995. After graduation, the IEP indicated that [Student] was to have continued contact with the Division of Vocational Rehabilitation (DVR), but that the District's special education program would terminate. The annual IEP goal was for [Student] to graduate in June of 1995, and for her, in connection with the DVR, to transition to a technical school program or into regular employment.

On June 8, 1995, the District sent a Notice of Placement to Mr. and Mrs. XXXXX indicating that [Student] would continue in a hearing impaired placement until her graduation in June of 1995, after which her placement would be terminated.

[Student] graduated from the Wisconsin School for the Deaf in June of 1995.

In August of 1995, [Mother], [Student]'s mother, filed a complaint with the Department of Public Instruction (DPI) in which she alleged that the [Unnamed] School District (District) had allowed [Student] to graduate without completing her IEP goals and objectives. The complaint also alleged that the District failed to provide proper notice to the XXXXXs of [Student]'s graduation.

In a written report dated November 8, 1995, the DPI responded to [Mother]'s complaint. The DPI found that because the IEP had to be implemented after graduation, its goals and objectives could not be met prior to [Student]'s graduation. The report also found that the Notice of Placement did not adequately inform the XXXXXs that [Student]'s graduation permanently ended her entitlement to a free and appropriate education from a public agency.

In response to those violations, the District was required to submit a corrective action plan to the DPI. The District submitted its corrective action plan to the DPI on or about December 5, 1995.

In the Fall of 1995, [Student] enrolled at Gateway Technical College (Gateway) in Elkhorn, Wisconsin, where she took a microcomputers class and a course in psychology. She successfully passed both courses.

In January of 1996, [Student] again enrolled at Gateway and took three courses. Before the semester ended, [Student] was involved in a severe car accident, and was unable to complete two of her courses. Her overall grade point average at Gateway was 3.0, or the equivalent of a "B" average.

[Mother] became [Student]'s legal guardian on or about August 12, 1996. [Mother] filed a request for a due process hearing on May 19, 1997.

The [Unnamed] School District did not violate the Individuals With Disabilities Act or Chapter 115, Wis. Stats., when it graduated [Student] from the Wisconsin School for the Deaf.

[Student] received a free and appropriate education pursuant to the Individuals With Disabilities Act and Chapter 115, Wis. Stats.

NOW, THEREFORE, IT IS HEREBY ORDERED that the due process hearing request of [Student] by her attorney, Jeffrey Spitzer-Resnick, is dismissed with prejudice.

[Student] began attending the Wisconsin School for the Deaf (WSD) in sixth grade. Most of her educational services were provided at the WSD, until her junior and senior years of high school at which point she also began attending several mainstreamed classes at Delavan-Darien High School.

In April of 1994, an Individualized Education Plan (IEP) was developed for [Student]'s senior year of high school. Both [Student] and [Mother] attended that meeting. According to the resulting IEP, [Student] was "on track for graduation in May/June of 1995." Implementation of the IEP was to begin in August of 1994, and would conclude in June of 1995. On May 11, 1995, [Student] and [Mother] met with several District representatives to review [Student]'s existing IEP. The purpose of the review was to determine whether [Student] had completed the goals and objectives contained in it, and whether she was eligible to graduate from the WSD.

The consensus of the IEP review team was that [Student] had successfully completed the goals and objectives contained in her IEP with one exception. The unfulfilled goal required [Student] to meet with officials from the Division of Vocational Rehabilitation (DVR) in order to develop a transitional plan that would facilitate her enrollment in a technical school program or otherwise enable her to gain employment. Because that goal had not been fully accomplished at the time of the May 11, 1995, review, the District responded by developing an "interim" IEP which was slated to begin on June 11, 1995, and end on September 1, 1997. The sole purpose of that IEP was to ensure that [Student] followed through with her post-secondary transitional planning. According to the IEP, [Student] was supposed to complete three short-term objectives. Those included meeting with her DVR counselor to develop post-high school plans, completing federal financial aid forms, and investigating different technical school campuses for her potential enrollment. In addition, the IEP indicated that the local director of special education was supposed to contact the DVR counselor to facilitate those remaining objectives.

That same IEP also reiterated that [Student] was making regular progress toward her graduation date of June 1995. The expectation, therefore, was that [Student] would graduate as anticipated. Indeed, the Notice of Placement dated June 8, 1995, specifically indicated that [Student] would continue in her hearing impaired placement through graduation. Although the District agreed to remain in contact with the DVR to assist [Student] in the completion of the aforementioned short-term objectives, the IEP makes it clear that her special education program would terminate upon her graduation.

Approximately two months after [Student] graduated from the WSD, her mother, [Mother], filed a complaint with the Department of Public Instruction (DPI) in which she alleged that the [Unnamed] School District (District) had allowed [Student] to graduate without completing her IEP goals and objectives. The complaint also alleged that the District failed to provide proper notice to the XXXXXs of [Student]'s graduation.

In November of 1995, the DPI responded to [Mother]'s complaint. The DPI found that because the IEP had to be implemented after graduation, its goals and objectives could not be met prior to [Student]'s graduation. The report also found that the Notice of Placement did not adequately inform the XXXXXs that [Student]'s graduation permanently ended her entitlement to a free and appropriate education from a public agency. In a clarifying letter sent to [Mother] by Juanita Pawlisch of the DPI, in December of 1996, Dr. Pawlisch explained that although the department had found a violation, it made no finding about whether [Student]'s 1994-95 IEP goals and objectives had been met. In response to the violations, the District was required to submit a corrective action plan to the DPI which it did on or about December 5, 1995.

[Student] maintains that she did not successfully complete the goals and objectives contained in her IEP and that therefore she should not have graduated. In particular, she claims that she did not achieve a sixth grade functional reading level and that her transitional programming was incomplete at the time of her graduation. Each of these matters will be addressed in turn.

One of the goals of [Student]'s 1993-94, IEP was for her to attain a sixth grade functional reading level. When that IEP was reviewed, that goal had been met and removed from her subsequent IEP. In addition, [Student]'s twelfth grade composition teacher testified that she believed [Student]'s reading level during her senior year of high school was at a sixth grade level. Moreover, for the first three quarters of her composition class, [Student] earned "A" grades. Although there was some indication that [Student] did not consistently achieve a sixth grade reading level on standardized tests, District personnel did not believe that was indicative of her overall ability in light of her classroom performance and her grades.

In April of 1996, [Student] was involved in a serious car accident in which she sustained severe injuries, including a traumatic brain injury. Due to her injuries, [Student] experienced a decline in her cognitive abilities. According to [Mother], [Student] could not read and interpret forms that required her ([Student]'s) signature following the accident. And, shortly thereafter, [Mother] became [Student]'s legal guardian.

Prior to her accident, however, [Student] had begun attending Gateway Technical College. During her first semester at Gateway, [Student] had a "B" average. She again enrolled for a second semester, but was unable to fully complete her coursework because of the intervening accident. Nevertheless, she managed to finish one of her courses and received a "B" in it. [Student]'s generally high marks in her senior composition class, along with her ability to enroll in Gateway and earn a "B" average convincingly demonstrate that she was functioning at least at a sixth grade reading level.

[Student] also maintains that the goals and objectives of her IEP went unmet because a "post-graduation" IEP was developed by the District to assist with her transition from high school into a post-secondary environment. The DPI found the development of a "post-graduation" IEP to be a violation of the Individuals With Disabilities Education Act (IDEA). It did so because once a child completes his or her graduation requirements the District has fulfilled its obligation to provide a free and appropriate public education (FAPE) thereby eliminating any further need for an IEP or special education services. Accordingly, if, at the time of her graduation, [Student]'s IEP goals and objectives had substantially been met, no further IEPs should have been developed for her. While procedurally incorrect, the District, by all accounts, was simply attempting to assist [Student] with filing forms and choosing an appropriate post-secondary school. In effect, the District was attempting to tie up loose ends that, in all probability, [Student] should have completed on her own. There was no mystery surrounding the fact that [Student] would graduate from the WSD in June of 1995, or what would likely happen upon her graduation. District officials were aware of it as were [Student] and [Mother].

To be sure, the District erred in developing its "post graduation" IEP. However, the mere fact that the District developed the IEP is not evidence of an improper graduation. [Student] had substantially completed the goals and objectives identified in her IEP. She and her mother were aware of the fact that she would graduate in June of 1995, and that, as a result, she would be ineligible to receive continuing special education services from the District. That information was plainly provided to the XXXXXs in both the final "post-secondary" IEP and the attached Notice of Placement. Indeed, [Student]'s obvious intent was to continue with some form of post-secondary schooling, which she subsequently did with the assistance of the DVR.

In conclusion, there is ample evidence to support the District's decision to allow [Student] to graduate from the Wisconsin School for the Deaf in June of 1995. She had substantially completed the goals and objectives outlined in her IEP. Although the District admittedly erred in developing an additional post-secondary IEP for [Student], it in no way undermined the fulfillment of her 1994-95, IEP. At the point of graduation, [Student]'s special education services ended because the District had fulfilled its obligation to provide her with a free and appropriate public education under the Individuals With Disabilities Education Act. Because this matter was decided on the merits, I decline to address the issue of whether or not this action was timely filed.

Dated at Madison, Wisconsin, this 21st day of November, 1997.