Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

By letter dated August 18th, 1997, Attorney Ronald Stadler, on behalf of [Student], filed a complaint pursuant to Section 615(b)(6) and (7) of the amended IDEA and requested a due process hearing pursuant to Section 615(f)(1) of the amended IDEA and Section 115.81 of the Wisconsin Statutes.

Pursuant to due notice a hearing was held on October 13, 29, and November 6, 1997, in West Bend, Wisconsin, before Mark J. Kaiser, Administrative Law Judge. The parties filed simultaneous post-hearing briefs on November 12, 1997.

The parties to this proceeding are:

[Student], by:

Attorney Ronald Stadler

Stadler & Schott, S.C.

16655 W. Bluemound Rd.

Suite 330

Brookfield, WI 53005

[Unnamed] School District, by:

Attorney Mary L. Hubacher

Davis & Kuelthau, S.C.

111 E. Kilbourn Ave. #1400

Milwaukee, WI 53202

1. [Student] ([Student] or [Student]) is an eighteen-year-old female, d.o.b. [xxxxx]. [Student]'s home address is [xxxxx], [City], Wisconsin. [Student] resides within the [Unnamed] School District (District).

2. [Student] has been identified as a child with exceptional needs (EEN) since May, 1988. [Student] has been receiving special services from the District since she was in third grade. After she completed eighth grade an academic assessment showed [Student] was at a third grade level. After this assessment, [Student]'s parents began questioning whether she was receiving any educational benefit from the District.

3. [Student]'s parents asked for due process hearings to review the Individualized Educational Program (IEP) developed by the school district for [Student] for the 1995-96 school year and the IEP for the 1996-97 school year.

4. Because of their concerns related to [Student]'s ability to learn in the [Unnamed District] schools, [Parents] enrolled [Student] in the Landmark School in Prides Crossing, Massachusetts for the 95-96 school year. [Student] returned to [City] East High School for the 96-97 school year.

5. [Student]'s IEP for the 97-98 school year was developed after three meetings of the IEP committee. The members of [Student]'s IEP committee from the school district consisted of Ed Dombrowski, IEP coordinator, Steven Lefeber, administrative representative, Sharon Kailas, program support teacher, Mary Sue Lighter, M-Team coordinator, Jane Richards, a Learning Disabled (LD) teacher who was [Student]'s teacher for part of the 1996-97 school year, Tiffany Sponholz, a newly hired LD teacher, and Linda Butler, school psychologist.

6. The first IEP meeting for the 97-98 school year was held on June 18, 1997. Present at the June 18th meeting were [Student], [Parents], Ronald Stadler, the [Parents]' legal counsel, Jane Richards, Tiffany Sponholz, Linda Butler, Sharon Kailas, and Steven Lefeber.

7. At the June 18th meeting [Student]'s progress toward the goals of her 96-97 IEP was evaluated and arrangements were made for Tiffany Sponholz to conduct academic testing of [Student] and for Linda Butler to conduct a psychological evaluation of [Student]. Arrangements were also made for [Student] to work with Ms. Sponholz to complete work for her 96-97 classes and releases were obtained from the [Parents] to obtain information necessary to evaluate their request for homebound instruction for [Student].

8. The results of the academic tests administered by Ms. Sponholz are that [Student] scored in the low and poor range on the tests designed to assess her spelling skills; in the very low range on the test for word identification; in the low average range on the test for word comprehension; in the low range on the test for passage comprehension; in the low range on the test for letter-word identification; and, in the poor range on the test for vocabulary. On the tests for all other subject categories [Student] scored in the average range with the exception of word attack on which she scored in the high average range. Ms. Sponholz summarized the assessment as follows:

   [Student] is a determined student who wants to achieve. She displays academic strength in math and responds best to instruction that is adequately paced and broken down into achievable parts. She exhibits some weaknesses in the areas of spelling, reading, and writing.

9. Linda Butler summarized the results of the psychological evaluation she performed on [Student] as follows:

   Current testing finds [Student] to be consistently experiencing problems related to internalization of emotions. She is developing an extensive list of physical symptoms that appear to be stress related. Specifically feelings of low self worth, hopelessness, and distrust are prevalent. Anxiety is noted on the scales as well. [Student] displays symptoms of anxiety such as sleep-related difficulties, problems in concentration, and preoccupation with worry. The above symptoms appear to be directly related to her school experiences as [Student] often feels conspicuous due to conflicts between teachers and administration and her family.

   It is recommended that [Student]'s program be designed in such a way that the past conflicts are minimized, in other words, new staff are assigned to her program. In-school, on-site counseling is recommended to assist [Student] in dealing with issues that come up during the school day. A means to reduce stress, anxiety, and tension, is needed through the school counseling program. [Student] has excellent social skills and has lofty goals for her education. Staying at home next year will not be conducive to positive mental health or achievement of her future goals. Finding positive ways to structure the environment and provide emotional support would be most useful.

10. The second IEP meeting was held on July 17, 1997. Present at the July 17th meeting were [Student]; her parents, [Parents], Mr. Stadler, Ms. Sponholz, Ms. Butler, Mr. Lefeber and Mr. Dombrowski. At the July 17th meeting, the results of the academic testing and psychological evaluation were reviewed and were used to begin developing new goals and objections for [Student]'s IEP, the request for homebound instruction was considered and denied, and an M-team meeting was scheduled to determine whether [Student] met the criteria for other health impairments.

11. An M-Team meeting was held on July 25, 1997. The M-Team determined that "[Student] meets criteria for other health impairments based on both acute and chronic symptoms of depression and anxiety which limits her strength, vitality and alertness." However, the M-Team did not identify a need for special education as a result of this handicapping condition.

12. A third IEP meeting was held on August 4, 1997. At the August 4th meeting the final version of the 97-98 IEP was developed. The primary components of the 97-98 IEP are a daily direct instruction period with Tiffany Sponholz, access to Ms. Sponholz on an as-needed basis other times during the day, and counseling to address [Student]'s self confidence and depression issues in order to improve her school attendance.

13. Immediately after the August 4th IEP meeting a placement meeting was held. Present at the placement meeting were Ms. Sponholz, Ms. Butler, Ms. Kailas, and Mr. Lefeber. [Student] was not invited to this placement meeting. The District subsequently discovered that as a result of a change in the federal law, [Student] should have been invited to the placement meeting. Accordingly, another placement meeting was scheduled for August 27, 1997. [Student], her parents, and Mr. Stadler attended the August 27th meeting. At the conclusion of the August 27th meeting, a placement offer was made to [Student]. The placement offer was the learning disabled program of the [City] East High School.

14. [Student] suffers from a language-based learning disability. A language-based learning disability is a disability grounded in language and impacts the individual's ability to read, write, spell and process information presented in language, either orally or in print. Because of this disability [Student] has difficulty learning by traditional classroom methods, i.e. lectures and reading textbooks. [Student] learns best in small groups using repetition. To learn successfully, she also needs to be able to interact with her teacher by asking repeated questions until she understands the material and use multiple senses.

15. The IEP and placement offer developed by the District for [Student] placed her in regular education classroom for her substantive classes and one period (47 minutes) of direct instruction from Tiffany Sponholz per day and additional access to Ms. Sponholz and the LD lab on an as-needed basis. The time spent with Ms. Sponholz was intended to pre-teach [Student] the material from her substantive classes and teach her how to learn. [Student] argues that a similar approach failed in the past; however, she received passing grades in her classes during the 1996-97 school year. The grades she received indicate that she was relatively successful learning by this method in the past.

16. [Student] testified that she feels she did not earn the grades she received. This testimony is supported by that of Ann Heinrich, a speech and language pathologist. Ms. Heinrich testified that she reviewed some of [Student]'s schoolwork and, in her opinion, [Student] was given passing grades for answers which were incorrect or insufficient. The testimony of [Student] and Ms. Heinrich on this subject is not persuasive because it is subjective and is limited to a few examples, not a comprehensive review of all [Student]'s work. Based upon the grades given to [Student], the academic assessment given to her by Ms. Sponholz, and the fact that [Student] has successfully engaged in part-time employment which presumably requires use of reading, writing, math and other skills, [Student] did receive some educational benefit from her 1996-97 IEP.

17. Additionally, the school district argues that any deficiencies in [Student]'s education during the 1996-97 school year can, to a large extent, be attributed to her poor attendance. Mr. Lefeber testified that an IEP is calculated to give benefit based on an 180-day school year. [Student] was absent a substantial portion of the school year (43%) and it is impossible to evaluate the success of the IEP based on this level of attendance. The 1997-98 IEP includes a counseling component to address the reasons for [Student]'s attendance problems.

18. The 1997-98 IEP developed by the school district for [Student] is appropriate and is reasonably calculated to provide her a free appropriate public education. The 1996-97 IEP was found to be appropriate after a due process hearing, nevertheless, the school district enhanced the 1997-98 IEP in an effort to address the concerns raised by [Student] and her parents.

19. [Student]'s 1997-98 IEP can be implemented at [City] East High School and placement at [City] East High School is an appropriate placement for [Student].

One of the stated purposes of the amended Individuals with Disabilities Act (IDEA) is "to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living." 20 U.S.C. sec. 1400(d)(1)(A). [Student]'s request for a due process hearing alleged that the District failed to provide her with a free appropriate public education (FAPE), and that it failed to provide her with an appropriate educational placement for the 1997-98 school year. A threshold question which needs to be addressed is what is FAPE.

The United States Supreme Court described the statutory history and purpose of IDEA as follows:

[IDEA] was designed to fill the need identified in the House Report - that is, to provide a "basic floor of opportunity" consistent with equal protection - neither [IDEA] nor its history persuasively demonstrates that Congress thought that equal protection required anything more than equal access. Therefore, Congress' desire to provide specialized educational services, even in furtherance of "equality," cannot be read as imposing any particular substantive educational standard upon the States.

The District Court and the Court of Appeals thus erred when they held that [IDEA] requires New York to maximize the potential of each handicapped child commensurate with the opportunity provided nonhandicapped children. Desirable though that goal might be, it is not the standard that Congress imposed upon States which receive funding under [IDEA]. Rather, Congress sought primarily to identify and evaluate handicapped children, and to provide them with access to a free public education.

Implicit in the congressional purpose of providing access to a "free appropriate public education" is the requirement that the education to which access is provided be sufficient to confer some educational benefit upon the handicapped child. . . . We therefore conclude that the "basic floor of opportunity" provided by [IDEA] consists of access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child.

Rowley v. Bd. Of Education., 458 U.S. 176, at 200-01, (1976).

On the issue of whether a handicapped child is receiving FAPE, the Supreme Court held:

Insofar as a State is required to provide a handicapped child with a "free appropriate public education," we hold that it satisfies this requirement by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction. Such instruction and services must be provided at public expense, must meet the State's educational standards, must approximate the grade levels used in the State's regular education, and must comport with the child's IEP. In addition, the IEP, and therefore the personalized instruction, should be formulated in accordance with the requirements of [IDEA] and, if the child is being educated in the regular classrooms of the public education system, should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.

Rowley, at 203-04.

The first issue; therefore, is whether the IEP developed by the District for [Student] for the 1997-98 school year is appropriate and is reasonably calculated to provide educational benefit to her. [Student]'s handicapping conditions are a language-based learning disability and acute and chronic symptoms of depression and anxiety. To overcome the language-based learning disability [Student] must be taught how to learn. Additionally, in the past, the depression and anxiety have negatively impacted on [Student]'s school attendance further exacerbating her inability to learn.

[Student] argues that the 1997-98 IEP does not address how the District intends to teach her how to learn. However, on its face, the IEP does address the concerns voiced by [Student], her parents, and Ann Heinrich. The two primary concerns expressed regarding the 1997-98 IEP are that it does not address how the District intends to teach [Student] how to learn and it does not address [Student]'s attendance problem.

[Student]'s IEP includes a direct instruction period and access to the LD lab on an as-needed basis. Tiffany Sponholz testified that her job duties included working with [Student] during the direct instruction period and to be available to assist [Student] on an as-needed basis. Ms. Sponholz further testified that:

[A]fter we developed the IEP and decided what her needs were, I began constructing a list of components that I wanted to use with [Student], and those were based on what [Student] told me were helpful to her, how she felt that she had learned best, they were based on my experience with [Student] over the summer and what she had been successful with, they were based on my personal experiences with other students and what I have found to be successful with learning disabled students, they were based on information from university professors that they have found to be helpful and useful, especially for collegebound LD students.

(Tr. Vol. I, pp. 46-47)

Exhibit 69 is a list of class components Ms. Sponholz intended to use while working with [Student]. In her post-hearing brief, [Student] discounts Ms. Sponholz ability to provide these services as the "the youthful opinion of a first-year teacher." The record contains insufficient information about time requirements for the various teaching methods listed by Ms. Sponholz to determine whether her plans were realistic; however, it should be noted that half of Ms. Sponholz's time was to be devoted to working with [Student]. Additionally, because the hearing was conducted in a bifurcated manner, no testimony was presented describing the teaching methods and techniques used at Landmark School which [Student] found to be successful. Accordingly, one can not contrast those methods and techniques with the ones in [Student]'s 1997-98 IEP.

With respect to [Student]'s attendance problems, the IEP recognized that her attendance was a problem and that it was related to stress originating in the school environment. The IEP provided:

1. Weekly interaction sessions to be jointly scheduled by a school person with a counseling background and [Student].
   
2. Interaction with a school person with a counseling background on a crisis basis to occur as needed.
   
3. Designated school adult will facilitate communications between [Student] and school staff and schedule communications meeting as needed.

These services were designed to reduce the stress and anxiety felt by [Student] and consequently improve her attendance. The facilitator was intended to assist [Student] in communicating with her teachers and school staff and consequently reduce the frustration she felt in the past dealing with her teachers. On its face, the IEP addresses the concerns raised by [Student], her parents, and Ms. Heinrich during the IEP meetings and other meetings with District staff and is reasonably calculated to provide educational benefit to [Student].

[Student] also alleges that based on past experience the staff at [City] East High School will be unable or unwilling to implement the IEP. The second issue for the hearing is whether the District failed to provide an appropriate educational placement for [Student]. Ann Heinrich testified that [Student] needs to be taught by people who understand the language aspect of her learning disability. The implication is that [Student]'s teachers at [City] East High School do not.

As discussed above, because no evidence was presented describing the teaching methods and techniques used at Landmark School, it is not clear precisely what [Student] believes is lacking in her 1997-98 IEP. [Student] has indicated that she learns best in small groups working at a slower pace with an opportunity for discussion. Admittedly this will not occur in [Student]'s regular education classes. However, the direct instruction period and the access to the LD lab and Ms. Sponholz are intended to provide [Student] with the services and support she needs to learn in a regular education classroom. This is not the placement preferred by [Student]; however, it appears to be reasonably calculated to provide [Student] with educational benefit and is consistent with the IDEA objective of mainstreaming handicapped students to the maximum extent appropriate. 20 U.S.C. sec. 1412(a)(5)(A).

A second concern raised by [Student] is that the 1997-98 IEP is similar to her past IEPs and her teachers did not follow those IEPs. Therefore, even if the IEP is appropriate, placement at [City] East High School will not provide her with FAPE. Enforcement of the IEP is beyond the scope of this hearing; however, one would hope that, at a minimum, the due process hearing process would result in an acute awareness among the faculty and staff of West Bend East High School of the components of [Student]'s IEP. The District disputes whether the past IEPs have not been followed; nevertheless, the District did address this concern by assigning teachers to [Student] who enjoy and are willing to work with her. If willingness to follow the IEP has been a problem in the past, it does not appear that it would have been a problem in the 97-98 school year.

A third concern raised by [Student] is that the relationship between her parents and the District has become adversarial. Regardless of the ability of the staff at [City] East High School to teach [Student], this environment has become so stressful for her that she will be unable to learn. Hostility of parents to an IEP is a permissible condition to consider in determining whether an IEP will provide a student with FAPE. Board of Educ. Of Community Consol. Sch. Dist. No. 21 v. Illinois State Board of Educ., 938 F.2d 712 (7ty Cir. 1991). However, no such hostility exists in this case. [Parents] clearly disagree with the placement and are skeptical of the IEP based on the perceived failures of past IEPs. However, they appear mature enough and concerned enough with [Student]'s education to work with District staff despite their disagreement and skepticism.

The concern in this case is not any hostility of [Parents] toward the District, but rather the anxiety and stress which [Student] feels at [City] East High School because of the adversarial relationship. The District has attempted to address this concern by providing an additional counseling component in the 1997-98 IEP. The District is willing to provide the resources and staff to teach [Student] if she is willing to work at learning at West Bend East High School.

In summary, the relationship between the [Unnamed] School District and [Student] and her parents has become litigious over the past several years. The instant case is the third request for a due process hearing alleging that the [Unnamed] School District has denied [Student] FAPE. Although the results of the first two due process hearings were a determination that the [Unnamed] School District has been providing [Student] FAPE, [Student] alleges that she has not learned while enrolled at [City] East High School and the only time she has learned is the year she spent at the Landmark School.

As found above, [Student] has received educational benefit from [Unnamed district] schools; however, it is clear that she and her parents believe she has not received sufficient educational benefit. The United States Supreme Court has held that IDEA requires a school district to provide a "floor of opportunity" to a student and not necessarily maximize the student's potential. Clearly, [Student] has ambitions beyond a mere floor of opportunity. This is admirable; however, neither the federal or state laws require the District to provide this.

[Student] is concerned that some of the components of the IEP are vague and there is no guarantee that the school district will provide the services described at the hearing. An IEP is not intended to be a detailed instructional plan but rather present direction for the handicapped student's education. Some of the services listed in the IEP are vague; however, based upon the explanation of these services provided by the witnesses at the hearing, I am convinced that [Student]'s needs are adequately addressed in the IEP.

Although the District has clearly expended a great deal of time, staff, and resources in developing an IEP for [Student], [Student]'s allegations that some of her teachers have not complied with her IEP in the past have not been taken lightly. This is [Student]'s last year of high school and if the 97-98 IEP does not provide her with FAPE, there is no next year to make it up. However, based on the evidence in the record, I am convinced that the District went beyond the minimum required to provide [Student] with FAPE, that the District is not merely going through the motions until [Student] graduates from high school, and that the IEP and placement are appropriate for [Student]. I am further convinced that the IEP developed complies with the requirements of IDEA and addresses the concerns raised by [Student] and her parents.

1. The 97-98 IEP developed by the [Unnamed] School District for [Student] is appropriate and is reasonably calculated to provide her a free appropriate public education.

2. [Student]'s 97-98 IEP can be implemented at [City] East High School and placement at [City] East High School is an appropriate placement for her.

3. The [Unnamed] School District has not denied [Student] a free appropriate public education pursuant to the Individuals with Disabilities Act and chapter 115, Wis. Stats.

4. The [Unnamed] School District is the prevailing party in this matter.