Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

The parties to this proceeding are:

Mr. John A. Haase
Godfrey & Kahn
P.O. Box 13067
Green Bay, WI 54307-3067

Mr. Jeffrey Spitzer-Resnick
Wisconsin Coalition for Advocacy
16 North Carroll Street, Ste. 400
Madison, WI 53703

By letter dated July 10, 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 September 26, 1997, and concluded on October 30, 1997. Mr. John A. Haase appeared on behalf of the [Unnamed] School District. Post hearing briefs were filed on November 21, 1997, and on December 5, 1997.

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

1. [Student] is a nineteen-year old female who has spastic quadriplegia cerebral palsy and a cognitive disability. She uses a motorized wheelchair and a service dog to assist her.

2. [Student] is currently enrolled as a student in the [Unnamed] School District.

3. On or about April 28 1997, an individualized education program (IEP) meeting was held to determine, in part, whether [Student] had met her graduation requirements. The committee concluded that [Student] had enough "Carnegie Units" to graduate, but that several of the goals and objectives contained in her IEP had not been met. The IEP committee further concluded that [Student] should be allowed to participate in the Class of 1997 graduation ceremonies, but that she would not receive her diploma.

4. Because the IEP committee concluded that [Student] had not met the goals of her IEP, another one was developed for the 1997-98 school year. The Notice of Placement, which followed, indicates that [Student] was to be placed at both North High School and in community settings during the 1997-98 school year.

5. Since the 1997-98 school year began, [Student] has participated in a variety of community-based instructional activities including, but not limited to, shopping trips to a local mall, going to the YMCA, attending luncheon outings, and interviewing for a job.

6. [Student] receives a portion of her educational instruction at North High School, including classes that address functional living skills, keyboarding, survival skills, and communicative arts. With the exception of the keyboarding class, [Student] is grouped with approximately five other disabled students during her instruction.

7. Mary Beck is an assistant technology specialist with the Division of Vocational Rehabilitation. At the request of the [Unnamed] School District (District), Ms. Beck conducted a functional vocational assessment of [Student] in March and April of 1997. Following her assessment, Ms. Beck issued a report in which she recommended that [Student] experience transitional activities in their natural, community-based settings.

8. Generalizing means the ability to learn a skill in one environment and to utilize it in a different environment.

9. [Student] does not generalize well.

1. The [Unnamed] School District failed to provide [Student] with a free and appropriate public education in the least restrictive environment contrary to the Individuals With Disabilities Act and Chapter 115, Wis. Stats.

NOW, THEREFORE IT IS HEREBY ORDERED that the [Unnamed] School District shall create an individualized program for [Student] so that she is educated in her community, vocational, and residential environment.

IT IS FURTHER ORDERED that the implementation of this program shall be determined at an individualized education program meeting to be convened forthwith.

[Student] is an amiable nineteen-year old who has hopes and dreams that are similar to those of her non-disabled peers. She wants to live independently, she wants to work at a job she enjoys, and she wants to have a social life. Each of those goals is understandable, indeed, desirable. Unfortunately, they are somewhat harder for [Student] to achieve than for someone who does not face her challenges. [Student] has spastic quadriplegia cerebral palsy and also has a mild to moderate cognitive disability. Since the seventh grade, [Student] has attended school in the [Unnamed] School District. This past year, she achieved enough credits to graduate from North High School. However, when the IEP committee convened towards the close of the 1996-97 school year, it concluded that although [Student] had sufficient credits to graduate, she had not yet mastered several of the goals and objectives outlined in her IEP. The committee therefore decided that [Student] should participate in graduation ceremonies with the rest of her class, but not receive her diploma. A new IEP was subsequently developed and a placement offer was extended. According to the placement offer, [Student] would return to North High School to continue pursuing the goals and objectives identified in her 1997-98, IEP. The placement offer also indicated that [Student] would receive a portion of her education in the [City] community.

During a functional assessment conducted by Mary Beck of the Division of Vocational Rehabilitation, [Student] told Ms. Beck that she ([Student]) did not wish to return to the high school building for the upcoming school year because it did not feel "normal" to her. [Student] reiterated those same feelings during the course of her due process hearing. [Student]'s mother, [Mother], expressed a similar concern regarding her daughter's placement. Nevertheless, both [Student] and her family recognize the need for [Student] to obtain functional skills' training and for her to have varied work experiences. The District also recognizes those needs. However, the XXXXXs and the District disagree over the way in which those needs are best met. The XXXXXs believe that all of [Student]'s exceptional education needs should be met in a realistic, community-based setting. The District, on the other hand, believes that [Student]'s needs should be addressed in both the high school setting and in the community, and that [Student]'s education at the high school should eventually be phased out. The District believes that its approach enables [Student] to be placed in the least restrictive setting whereas the XXXXXs consider any time [Student] spends at North High School to be an inappropriately restrictive environment.

Because the District believes that [Student] is lacking important and fundamental life skills such as telling time, using money, going grocery shopping, and caring for herself, it has prepared a plan whereby [Student] is expected to learn many of those functional skills in the classroom and then apply them in the "real world." The ability to learn a concept in one environment and then apply it in another environment is known as "generalizing." The District maintains that [Student] has the ability to generalize many of the functional skills that she is learning in the classroom. Accordingly, the more skills [Student] acquires under those means, the less time she will spend in the classroom. Correspondingly, the amount of time that [Student] spends in the community would then be increased.

If [Student] had the ability to consistently generalize the skills she acquired in the classroom and then routinely apply them in random, community-based settings, the District's approach would be ideal. Unfortunately, there is no consistent evidence to support that conclusion. Indeed the testimony of Lou Brown, a professor of special education at the University of Wisconsin-Madison, underscored that very point. According to Professor Brown, the lower one functions on the intellectual spectrum, the less likely it is for that individual to transfer skills learned in one environment to another one. In [Student]'s case, for example, she has been taught several different skills within the classroom setting including how to tell time and how to use money. To date, however, she has not mastered either skill. With repeated effort, it is possible that she will eventually master those skills. Even assuming, arguendo, that she does master a particular skill in the classroom, there is absolutely no guarantee that she will be able to apply that same skill in a community-based setting. In short, because [Student] has a limited ability to generalize, the XXXXXs maintain that the majority of her learning should occur within the environments she is most likely to be. By implementing that approach, they believe that [Student] will derive an educational benefit.

Beginning at age sixteen (and in some cases as early as age fourteen), the Individuals With Disabilities Act requires that each IEP contain a statement of needed transition services for each child including, when appropriate, a statement of the interagency responsibilities or any needed linkages. 20 U.S.C. §1414. The IDEA defines "transitional services" as a coordinated set of activities that are designed with an outcome-oriented process that promotes movement from school to post-school activities. 20 U.S.C. §1401. Those activities include post-secondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation. Id. Transition services are also to be based upon the individual student's needs and are to take into account the student's preferences and interests. Id. Finally, transition services are to include instruction, related services, community experiences, the development of employment and other post-school adult living objectives, and where appropriate, the acquisition of daily living skills and a functional vocational evaluation. Id. Under the Individuals With Disabilities Act and the related federal regulations, each school district is also obligated to meet the individual needs of each student by providing them with a "continuum of alternative placements" in the "least restrictive environment." 34 C.F.R. §300.551 (a).

The language of the IDEA makes it clear that school districts are obligated to provide transition services to children with disabilities. By providing those services, school districts enable individuals with disabilities to move with greater ease from the school environment to the post-school environment. The IDEA outlines a wide-variety of ways in which to achieve that goal. Most, if not all, of the enumerated services can (and in some cases clearly must) be provided to a student in a non-school setting. Moreover, a student's needs, individual preferences, and interests are supposed to be considered in determining the nature of the transitional services. The IDEA also requires school districts to provide a range of placements for its disabled students. Such placements are to be in the least restrictive environment.

The District maintains that it has no obligation to provide all of [Student]'s education in a "non-school" environment and argues that if she were completely removed from the high school that it would pervert the spirit of the "least restrictive environment." Ironically, though, the District concedes that its ultimate goal is to phase-out [Student]'s instruction at the high school and to place her in a variety of non-school settings. The District cannot have it both ways.

The goal of transitional services and the placement of disabled students in the least restrictive environment is plain. It is to educate students to the maximum extent possible in settings that promote movement from school to post-school activities. According to the IDEA, transitional services must be based on a student's needs, taking into account the student's preferences and interests. The District's placements are undoubtedly well-intentioned, but they often fail to address [Student]'s individual needs. For instance, during the 1997-98 school year, [Student]'s class schedule indicates that she will participate in a "life skills" class in which she is supposed to learn to cook, complete household tasks, and live on her own. The XXXXXs have built a one room apartment for [Student] which is adjacent to their own home. However, there is no provision for [Student] to learn those "life skills" in her own home. Instead, the District believes she should first learn those skills in a classroom at North High School and then apply them at home. However, that plan does not take [Student]'s individual needs into account.

[Student] has indicated that she no longer wants to attend classes at North High School because she does not feel comfortable in that environment. She "graduated" with her class this past summer and her peers are no longer at school with her. It is not surprising, therefore, that [Student] wants to leave that environment. She has instead proposed that she receive her education in the environments where she will actually be including her community, her residence, and her vocational site(s). Mary Beck, Professor Brown, and [Student]'s family all support that proposal.

Under the IDEA, [Student]'s individual needs as well as her preferences and interests must be considered in the development of her transitional services. For the District to suggest that her placement outside of the high school setting is "restrictive" is to distort the underpinnings of the IDEA. At age nineteen, [Student] does not cook or prepare simple meals. She does not know how to tell time and does not go grocery shopping on her own. She has a limited ability to care for herself and does not have a clear understanding of monetary concepts. It is therefore apparent that she needs to learn those and other skills. However, to insist that she first learn them in a classroom environment is to ignore her individual needs and is highly unlikely to provide her with any educational benefit. Thus, it is essential for [Student] to begin receiving her instruction in "real life" settings rather than in artificial ones.

Dated at Madison, Wisconsin, this 3rd day of February, 1998.