Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

TO: Ms. June Lubniewski Wilson
Legal Services
[address]

Ms. [Mother]
[address]

Mr. [Father]
[address]

By letter dated June 16, 1997, [Mother] filed a request for a due process hearing with the Department of Public Instruction on behalf of her daughter, [Student]. The hearing in this matter was subsequently held on December 16, 1997. Attorney June L. Wilson appeared on behalf of the District. Mr. and Mrs. XXXXX appeared pro se. Post hearing briefs were filed on January 31, 1998. Neither party filed a reply brief.

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 a sixth grade student in the [Unnamed] School District (District). In January of 1996, the District sent notice to [Student]'s parents, [Mother] and [Father], of its intent to re-evaluate [Student] for exceptional education.

2. A multi-disciplinary team was then assembled to evaluate [Student]. The M-team concluded that [Student] was a child with exceptional education needs in the areas of learning disabilities and speech/language.

3. Based on [Student]'s Individualized Education Plan developed on May 21, 1996, [Student] was to be placed in an extended school year (ESY) program from June 17, 1996, to August 9, 1996. Under that plan, she was supposed to be enrolled in the learning disabilities program three to five (3-5) days per week, for a total of ten hours each week.

4. The 1996 ESY IEP identified [Student]'s writing skills at a first grade level, her reading skills at a pre-primer level, and her math skills at a second grade level. According to her IEP, the goal was to maintain her reading and writing levels, and to increase her math skills to a beginning third grade level. During the Summer of 1996, the District did not provide [Student] with the entire number of hours designated in the May 21, 1996, IEP.

5. Although [Student] was living in the [Unnamed] School District at the beginning of the 1996-97 school year, she did not attend any classes there. In October of 1996, [Student] transferred to the [District #2] School District. The [District #2] IEP indicated that [Student]'s written language skills were at a first grade level, while her reading skills were at a pre-primer level. Her math skills were assessed at a second grade level.

6. In February of 1997, [Student] returned to the [Unnamed] school district and enrolled at Leopold Elementary School. According to her IEP, she received exceptional education from both the learning disabilities and speech/language programs.

7. In February of 1997, the [Mother and Father] requested that [Student] not have a male instructor for her physical education class. In response, Patrick Delmore, the principal at Leopold Elementary School, requested that the [Mother and Father] provide written documentation from a physician or a state-certified therapist that such an accommodation was necessary. The [Mother and Father] did not provide the requested documentation.

8. When [Student] returned to the [Unnamed] School District in February of 1997, she was placed in Mary Quamme's classroom. During the school day, Ms. Quamme had teaching assistance from a learning disabilities teacher and/or a teacher's aide. Ms. Quamme assisted [Student] with her work in science and social studies by reading orally to her and by taking notes for her. [Student] also received assistance in social studies and science from both the learning disabilities teacher and from the teacher aide. She often worked with a partner to complete her assigned work.

9. In April and May of 1997, [Mother] requested that [Student] be provided with an extended school year program of 150 hours of instruction. The District agreed to provide [Student] with an extended school year program for two hours per day, three days a week. On or about June 5, 1997, an extended school year IEP was finalized for [Student].

10. In the Fall of 1997, [Student] began attending Cherokee Middle School. When she began the 1997-98 school year, her reading skills were at a primer level. Her written language and spelling skills were at a first grade level.

11. During the first two weeks of the 1997-98 school year, all sixth grade students at Cherokee Middle School participate in a special program known as "community building." The community building program is designed to help orient students to the middle school setting, to reduce their anxiety, and to build positive relationships with their new teachers and peers.

1. The [Unnamed] School District offered [Student] an appropriate number of instructional hours for the Summer of 1996 and 1997, pursuant to the Individuals With Disabilities Education Act and Chapter 115, Wis. Stats.

2. The [Unnamed] School District did not deny [Student] a free and appropriate education under the Individuals With Disabilities Education Act or Chapter 115, Wis. Stats., when the District denied her request for a female physical education instructor during the 1996-97 school year.

3. The [Unnamed] School District provided adequate assistance to [Student] during the 1996-97 school year in the areas of social studies and science pursuant to the Individuals With Disabilities Education Act and Chapter 115, Wis. Stats.

4. The [Unnamed] School District did not deny [Student] a free and appropriate education under the Individuals With Disabilities Education Act or Chapter 115, Wis. Stats., during the first two weeks of the 1997-98 school year.

NOW, THEREFORE, IT IS HEREBY ORDERED that the due process matter of [Student] by her mother, [Mother], is dismissed with prejudice.

IT IS FURTHER ORDERED THAT the [Mother and Father] request for compensatory education is hereby denied.

The [Mother and Father] requested a due process hearing on behalf of their daughter [Student] because they did not believe that the [Unnamed] School District (District) had provided her with a free and appropriate public education (FAPE) under the Individuals With Disabilities [sic Education] Act (IDEA). More specifically, the [Mother and Father] questioned: (1) Whether the District provided [Student] with an appropriate number of hours of educational instruction during the Summer of 1996 and 1997, and whether compensatory education is warranted; (2) Whether [Student] was denied a FAPE during the 1996-97 school year when the District denied her request for a female physical education teacher; (3) Whether [Student] was provided with an adequate level of assistance in the areas of social studies and science during the 1996-97 school year; and (4) Whether the District denied [Student] a FAPE during the first two weeks of the 1997-98 school year by not implementing her IEP. Each of these issues shall be addressed in turn.

Prior to the close of the 1996-97 school year, an extended school year IEP was developed for [Student]. According to that IEP, [Student] was supposed to be enrolled in the learning disabilities program three to five (3-5) days per week, for a total of ten hours each week. At the time she began the summer program, [Student]'s writing skills were at a first grade level, her reading skills were at a pre-primer level, and her math skills were at a second grade level. The goal of the summer IEP was to maintain [Student]'s reading and writing levels, and to increase her math skills to a beginning third grade level. Despite the number of hours designated in the May 21, 1996, IEP, the District did not provide them all to [Student]. The reasons for this are decidedly unclear. Nevertheless, both the [Mother and Father] and the District agree that [Student] did not receive the number of hours to which she was entitled.

[Student] did not return to the [Unnamed] public schools at the beginning of the 1996-97 school year. In October of 1996, she transferred to the [District #2] School District. The [District #2] district developed an IEP for [Student] which indicated that her written language skills were at a first grade level, while her reading skills were at a pre-primer level. Her math skills were assessed at a second grade level. Given those assessments, it is apparent that [Student] did not suffer any skills' regression as a result of not receiving the full complement of instructional hours during the Summer of 1996.

To compensate for the hours [Student] failed to receive during the Summer of 1996, [Mother] requested that [Student] receive one hundred and fifty (150) hours of instruction during the Summer of 1997. In a letter dated April 30, 1997, Curtis Weber, coordinator of special education for the District, responded to [Mother]'s request. He indicated that an upcoming IEP committee would determine the amount of special education [Student] would receive over the summer. He further indicated that her needs would be based on her current level of performance and any anticipated regression. On or about June 4, 1997, a meeting was held to develop [Student]'s extended school year IEP. With the exception of two weeks, the IEP committee concluded that [Student] would receive two hours of instruction, three days each week in the learning disabilities program. According to the IEP, [Student] was to maintain her written language and reading skills at a first grade and primer level, respectively. Subsequent IEPs developed for the 1997-98 school year indicate that [Student] had maintained her skill levels and had not experienced any regression. Because [Student] did not experience any measurable regression of her academic skills following both the Summer of 1996 and 1997, and was seemingly able to recoup those skills she had learned during the preceding year, I find that the number of extended school year instructional hours was appropriate. Compensatory education is therefore not warranted.

In February of 1997, [Student] returned to the [Unnamed] school district and began attending Leopold Elementary School (Leopold). When she returned to the District, the [Mother and Father] requested that [Student] not have a male instructor for physical education because they believed she would feel uncomfortable in the presence of a male teacher. In response to their request, Patrick Delmore, the principal at Leopold, asked the [Mother and Father] to provide a therapist's or physician's report indicating that such an accommodation was necessary. The [Mother and Father] never provided any supporting documentation for their request.

Upon [Student]'s return to Leopold, she was placed in a fifth grade classroom specifically designed to address the needs of learning disabled children. Had she been placed in a physical education class with a female instructor, she would not have been able to remain in the same fifth grade class where the District believed she would receive the optimal benefit. Unfortunately, her attendance for the remainder of the year was uneven. Yet even when she was present, she did not attend physical education. Although the District remained open to the possibility of providing [Student] with a female physical education teacher, they were reluctant to do so because they did not want to disrupt her fifth grade curriculum and instruction. And, despite repeated requests from the District, the [Mother and Father] did not provide any written documentation for their accommodation request. I therefore find that [Student] was not denied a FAPE when the District did not provide her with a female instructor for physical education.

[Student] was placed in Mary Quamme's fifth grade class at Leopold. Ms. Quamme was responsible for teaching both social studies and science to her class. Because Ms. Quamme had approximately four to five learning disabled students in her class, she received additional assistance from both an educational aide and a learning disabilities teacher. In order to provide additional assistance to those learning disabled students, including [Student], several different strategies were employed. For instance, Ms. Quamme or her aide would read orally, instead of having the students read silently. In addition, she would also take notes for [Student] or pair her with another student to complete a particular assignment. During a science fair project, for example, [Student] was paired with another child. Ms. Quamme assisted the girls in choosing a project that she believed would be both fun and appropriate for [Student] and her partner. She also helped them find material to support their hypothesis and assisted them in displaying their information. Ms. Quamme made similar accommodations for [Student] when they were completing social studies' assignments. Lisa Alexander, [Student]'s learning disabilities teacher, also assisted her in these subject areas. No credible evidence was introduced to the contrary. Accordingly, I find that the District provided appropriate assistance to [Student] in both science and social studies, and that she was therefore not denied a free and appropriate public education.

The [Mother and Father] also maintain that [Student] was not provided with a free and appropriate public education during the first two weeks of the 1997-98 school year. In particular, the [Mother and Father] believe that [Student]'s IEP was not implemented during those initial two weeks. During the first two weeks at Cherokee Middle School, all sixth grade students participate in a special program known as "community building." The community building program is designed to help orient students to the middle school environment, to reduce their anxiety, and to assist them in building positive relationships with their new teachers and peers. Students participate in a variety of activities and projects during those initial weeks including, for example, cooperative games, building personal time lines, creating poems based on the letters of a child's name, and solving math puzzles.

One of the annual goals contained in [Student]'s IEP was for her to increase her ability to stay comfortable in school for a full day. Another goal was to increase [Student]'s comfort level with adults and peers. During those first two weeks, [Student] only attended three days of school. She did, however, participate in several of the community building activities. Carrie Macklin Ritz, a learning disabilities teacher at Cherokee Middle School, was also present during those three days. Ms. Ritz observed [Student] during that time and also informally assessed her reading ability. [Student] was able to successfully complete many of the projects. Although the curriculum during those first two weeks was not as rigorous as the rest of the year, most, if not all, of the IEP goals, to some degree or another, were implemented. I therefore find the [Mother and Father] claim that [Student] was denied a FAPE during the first two weeks of the 1997-98 school year to be without merit.

The District has fulfilled its obligation to provide [Student] with a free and appropriate public education. It has done so by providing her with exceptional education during both the regular and extended school year. Although the [Mother and Father] requested that [Student] be placed in a physical education class with a female instructor, they were unable to present any written documentation to substantiate their request. The District was willing to accommodate their desire for such a placement, but the [Mother and Father] never supplied the necessary information. The [Mother and Father] also maintained that [Student] did not receive adequate assistance in social studies and science during the 1996-97 school year. However, the record demonstrates otherwise. Ms. Quamme, Ms. Alexander, and an educational aide all assisted [Student] with her school work, including her social studies and science assignments. Finally, although [Student] was only present for three days during the first two weeks of the 1997-98 school year, there was ample evidence that her IEP was being implemented.

Dated at Madison, Wisconsin, this 7th day of April, 1998.