NOTE: This includes the Interim Decision followed by the Final Decision and Order.

Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

The PARTIES to this proceeding are as follows:

[Unnamed] School District, by:

Atty. Jeff Schmeckpeper

Kasdorf, Lewis, & Swietlik

P.O. Box 44200

Milwaukee, WI 53214

[Student], by:

[Father]

[Address]

On June 9, 1998, the Department of Public Instruction received a request for a due process hearing, under Subchapter V, Chapter 115, Wis. Stats., and the Individuals with Disabilities Education Act (IDEA), from [Father], father of [Student]. Five prehearing conferences have been held in this matter, and hearing date was initially set for July 16, 1998. Pursuant to the district's request (the district had just changed legal counsel), the hearing date was postponed and rescheduled to August 17, 1998.

On August 12, 1998, the school district requested postponement of the hearing until the IEE was completed and a copy of distributed to both parties in the case. This postponement request was granted. The district suggested that the next hearing date be set by the ALJ when she became aware of the completion of the IEE; the ALJ agreed that this was a reasonable manner in which to proceed. As of the date of this Interim Decision, the IEE has not been completed.

The petitioner filed a Motion for Preliminary, Temporary, and Interlocutory Injunction on August 10, 1998. The ALJ offered an opportunity for the filing of briefs with respect to this Motion. The district filed a brief in opposition to the Motion on August 19, 1998. [Father] filed a brief in support of the Motion on August 25, 1998.

The petitioner's Motion asks the ALJ to (1) find that [Unnamed] School District is responsible for the public education of [Student], (2) order that [Student] be enrolled as a full-time student at [Unnamed #2] High School beginning August 19, 1998, and (3) order that [Unnamed] School District provide [Student]'s transportation to and from [Unnamed #2] High School. In support of his Motion, the petitioner asserts that [Student] has encountered difficulties while attending school in the [Unnamed] School District , and that placement in a different school district is needed to prevent irreparable injury to him. The petitioner cites to Wis. Stat. §118.15(1)(d)6, "Wisconsin's Open Enrollment Act and IDEA."

1. WIS. STAT. §118.15(1)(d)6 DOES NOT CREATE THE AUTHORITY FOR AN ALJ TO ORDER THE [Unnamed] School District TO PLACE THE PETITIONER INTO, AND TRANSPORT HIM TO, ANOTHER DISTRICT'S HIGH SCHOOL.

   Wis. Stat. §118.15(1)(d)6 provides:

   (d) Any child's parent or guardian, or the child if the parent or guardian is notified, may request the school board, in writing, to provide the child with program or curriculum modifications, including but not limited to:
   * * *

   6. Enrollment in any public educational program located outside the school district in which the child resides. Enrollment of a child under this subdivision may be pursuant to a contractual agreement between school districts.

   This statutory provision allows a parent to ask his school board to allow his child to attend school in a different district. It does not say that the school board has to agree to this, and it certainly does not say that an ALJ in an EEN due process proceeding has the authority to do so. Accordingly, this statutory section does not form a basis for the relief sought by the petitioner in this Motion.

2. WIS. STAT. §118.51 (OPEN ENROLLMENT STATUTE) DOES NOT CREATE THE AUTHORITY FOR AN ALJ TO ORDER THE RIVER FALLS SCHOOL DISTRICT TO PLACE THE PETITIONER INTO ANOTHER DISTRICT'S HIGH SCHOOL.

   A student may attend a school outside of the district in which he resides under the open enrollment statute if he follows a statutorily defined application process. There is no evidence presented here that [Student] has timely followed that application process. Further, the open enrollment statute does not create authority for this ALJ to review a district's determination that it will not accept a child who has filed such an application. Therefore, I have no jurisdiction to review any action by the [Unnamed #2] school district in regard to any open enrollment application that the petitioner may have filed, and I have no authority to order the petitioner into that high school under any provision of the open enrollment statute.

3. CURRENT SPECIAL EDUCATION STATUTES AND RULES DO NOT AUTHORIZE THE ALJ TO ORDER PLACEMENT OF THE PETITIONER INTO ANOTHER DISTRICT'S SCHOOL UNDER THE INSTANT CIRCUMSTANCES.

   The petitioner asserts that IDEA (the entire federal special education statute) and the federal rules of civil procedure authorize the ALJ to place [Student] into the [Unnamed #2] High School as part of a temporary restraining order. The federal rules of civil procedure do not apply to proceedings before an ALJ under Wis. Admin. Code §PI 11.10.

   While an EEN due process proceeding (such as this one) is pending, the affected child must remain in his current educational placement (unless he moves to another district):

   PI 11.13 Educational placement of a child during hearings and court proceedings. (1) During the pendency of a hearing under s.PI 11.10 or a court proceeding arising from such a hearing, unless the board and the parent agree otherwise, the child who is the subject of the hearing or court proceeding shall remain in his or her current educational placement.

   Wis. Admin. Code §PI 11.13(1). See also 34 C.F.R.§300.513(1)(a).

   The petitioner argues that he must be placed in a school outside of the [Unnamed] School District because that district does not offer special education services that will meet [Student]'s needs. He invokes Wis. Stat. §115.85(2)(b) to support this assertion. The relevant portions of §115.85(2) are as follows:

   (2) PLACEMENT IN APPROPRIATE PROGRAM. The school board shall provide an appropriate educational placement for a child with exceptional educational needs. The school board may delegate this responsibility. * * *
   

   (a) If the school district, the county in which the child resides or the cooperative educational service agency for the school district in which the child resides operates an appropriate special education program, the child shall be placed in such program.
   * * *

   (b) If an agency enumerated in par. (a) does not operate a special education program which is appropriate for the child's needs, the child shall be placed in a program operated in this state by a public agency as near as possible to the place where the child resides, except as provided under pars. (c) and (d). If the local school board utilizes the placement option under this paragraph, the school district of residence and not the county of residence shall pay tuition charges for exceptional children.

   Wis. Stat. §115.85(2). [Student] is supposed to be placed in his district of residence (at the time of this motion, River Falls) if it has a special education program appropriate for his needs. The district asserts that it does have a special education program. Documents submitted by both parties indicate that this is true. The district also asserts that its special education program is appropriate for [Student]'s needs. Clearly, the petitioner does not agree that the district has been offering an appropriate program. Without a completed IEE, there is not enough evidence in the record for me to conclude (1) that [Student] is a child in need of special education, and (2) what an appropriate program for him is. Also, I have no basis for knowing that the [Unnamed #2] School District can offer an appropriate program to [Student]. Accordingly, I cannot grant the petitioner's motion on the theory that §115.85(2)(b) compels [Student]'s attendance in a different school district.

   Finally, the petitioner asserts that he is a "child at risk" under Wis. Stat. §118.153(1). If his assertion that he is at least one year behind his age group in high school credits attained is correct, and if he has been a habitual truant, he could be considered a child at risk. However, labeling [Student] as a child at risk does not create in this ALJ the power to order [Student]'s placement into a different district's high school. The "children at risk" statute calls for a district to identify its "at risk" children and to develop a plan for dealing with them. That plan does not have to include a requirement that "at risk" children be shipped out of the district. Id., (2). Thus, invoking the "child at risk" provisions at §118.153 is not a basis for granting the relief requested here.

Based on the foregoing, I conclude that I lack the authority to order [Student]'s placement into a school in a different school district prior to holding a due process hearing and the issuance of the resulting decision. I also do not have the power to order the [Unnamed] School District to pay for [Student]'s transportation to a school outside of the [Unnamed] School District prior to holding a due process hearing and the issuance of the resulting decision. In light of a non-residence allegation contained in the District's Motion to Dismiss, dated September 8, 1998, I will also decline at this time to make a finding, one way or the other, regarding the District's responsibility for providing a free, appropriate public education to [Student].

ACCORDINGLY, the petitioner's Motion for a Preliminary, Temporary and Interlocutory Injunction is denied.

Dated at Madison, Wisconsin, on September 16, 1998.

Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

The PARTIES to this proceeding are as follows:

[Unnamed] School District, by:

Atty. Jeff Schmeckpeper

Kasdorf, Lewis, & Swietlik

P.O. Box 44200

Milwaukee, WI 53214

[Student], by:

[Father]

XXXXX

[City], WI 54022

On June 9, 1998, the Department of Public Instruction received a request for a due process hearing, under Subchapter V, Chapter 115, Wis. Stats., and the Individuals with Disabilities Education Act (IDEA), from [Father], father of [Student]. Five prehearing conferences have been held in this matter, and hearing date was initially set for July 16, 1998. Pursuant to the district's request (the district had just changed legal counsel), the hearing date was postponed and rescheduled to August 17, 1998.

At a July 16, 1998, prehearing conference, the parties determined that the ALJ should select an IEE provider. On July 30, 1998, the ALJ advised the parties that an IEE evaluator had been selected.

On August 12, 1998, the school district requested postponement of the hearing until the IEE was completed and a copy of that evaluation was distributed to both parties in the case. This postponement request was granted. The district suggested that the next hearing date be set by the ALJ when she became aware of the completion of the IEE; the ALJ agreed that this was a reasonable manner in which to proceed. As of September 16, 1998 (date of the Interim Decision referenced below), the IEE had not been completed.

The petitioner filed a Motion for Preliminary, Temporary, and Interlocutory Injunction on August 10, 1998. The parties completed submission of briefs on August 25, 1998. In an Interim Decision dated September 16, 1998, the ALJ denied the petitioner's Motion.

On August 27, 1998, the school district asked to be relieved of responsibility for paying for an IEE for [Student], and on September 8, 1998, the school district filed a motion to dismiss this proceeding. On September 16, 1998, the ALJ advised the IEE evaluator to cease efforts on the IEE until a decision was reached on the district's motion to dismiss and request for relief from payment responsibility. A brief on the motion to dismiss was received from [Father] on September 28, 1998, and a reply brief was received from the district on September 30, 1998. A billing statement was received from the IEE provider on October 15, 1998.

1. In March, 1998, [Father] consented to an Exceptional Educational Needs (EEN) evaluation for his son, [Student], age 17. An M-Team was assembled, and on June 8, 1998, the M-Team determined that [Student] was not a child with EEN.

2. [Student] resided in the [Unnamed] School District prior to August 19, 1998.

3. [Student] began residing in the [Unnamed #2] School District effective August 19, 1998.

4. During the course of the instant proceeding, the River Falls School District agreed to pay for an IEE of [Student], although it objected to payment for an IEE performed by the person preferred by [Father]. The parties did agree to have the IEE performed by a team, located by the ALJ, from the Eau Claire Area School District (Eau Claire). Eau Claire began billing for IEE performance and supportive services on July 27, 1998. Eau Claire's last billable service occurred on September 11, 1998. The charges for Eau Claire's services total $406. Per the [Unnamed] School District's request, and in light of that district's September 8, 1998, Motion to Dismiss, the ALJ directed Eau Claire to cease performance of an IEE on September 16, 1998.

1. MOOTNESS.

   In June, 1998, a due process hearing request was filed on behalf of [Student]. The parties agree that, at that time, [Student] resided in the [Unnamed] School District. On August 19, 1998, [Student] enrolled in the [Unnamed #2] School District, as evidenced by his completion of a [Unnamed #2] School District "Request for Information for Registration of New Student" filled out on that date. In his September 28 answer brief to the motion to dismiss, the petitioner asserted that he resides both in a rural residence within the [Unnamed] School District, and in an apartment within the [Unnamed #2] School District.

   For purposes of school district residence, a student cannot reside within two school districts. The Wisconsin Supreme Court has interpreted statutory references to "residence" as being the same thing as "domicile." Carlton v. State Dept. of Public Welfare, 271 Wis. 465, 74 N.W. 2d 340 (1956). A party may only have one domicile (and therefore, one residence) at a time. In the interest of Corey, 215 Wis. 2d 394, 414, 572 N.W. 2d 845 (1998). Further, after carefully reviewing all of Wis. Admin. Code ch. PI 11, I can find no language therein that suggests that an EEN child can be considered a resident of more than one district. Therefore, [Student] must be a resident of either [Unnamed] School District, or the [Unnamed #2] School District, but he cannot be a resident of both.

   The record available to the examiner to determine [Student]'s district of residence is scant. The parties appear to agree that [Student] resided in the [Unnamed] School District prior to August 19, 1998. The Request for Information from [Unnamed #2] is documentation that [Student] resides in [Unnamed #2]. No documentation of a continued, exclusive residence within the [Unnamed] School District was proffered. Therefore, the preponderance of the credible evidence supports a finding that [Student] has resided within the [Unnamed #2] School District since August 19, 1998.

   Because [Student] became a [Unnamed #2] School District resident on August 19, 1998, and remains so, this matter is moot. Both the Wisconsin special education statute and state administrative code require only the district in which a child is residing to provide special education evaluation and services. For example, Wis. Admin. Code § PI 11.03(1)(a) states, in pertinent part:

   (1) SPECIAL EDUCATION SCREENING.(a) A board shall have an ongoing special education screening program to locate and screen all children who are residents of the school district and who have not graduated from high school. …
   (emphasis added)

   See also, §PI 11.05(1):

   (1) APPOINTMENT OF STAFF. When an M-team report is approved under s.PI 11.04(5)(d) indicating that a child who is 3 years of age or older, a resident of the school district, and who has not graduated from high school is a child with EEN, a board shall appoint staff to develop an IEP for the child. ….
   

   (emphasis added)

   Finally, see also Wis. Stat. §115.85(1)(a).

   Under general Wisconsin case law, a matter is moot when it seeks to determine an abstract question which does not rest upon existing facts, or where the judgment rendered will not have any practical legal effect. Ziemann v. Village of Hudson, 102 Wis. 2d 705, 712, 307 N.W. 2d 236 (1981). That is the situation here. If I were to decide that [Unnamed School District] was wrong in determining that [Student] is not an EEN student, this determination would have no practical legal effect because [Unnamed #2] School District is now responsible for making that determination and providing whatever services might be needed to remediate his EEN status.

   Appropriate federal case law also requires dismissal due to mootness here. In Board of Education v. Steven L., 89 F.3d 464 (7th Cir. 1996), the Seventh Circuit Court of Appeals reviewed a case concerning a child's fifth grade IEP. By the time the Seventh Circuit made its decision, the student had completed eighth grade and was enrolled in a high school in a different school district. The Court stated that its jurisdiction was limited to actual cases or controversies, and this "requirement extends throughout the pendency of an action, not just at the time a case is filed." Further, because the child in Steven L. had enrolled in a new school district, the Court held that the student was without "an injury traceable to the defendant [that could] be redressed by a favorable judicial decision," and then dismissed the case. The same must be done here.

2. IEE COST

   The school district asks, along with its request for dismissal, that it be relieved "of the obligation of paying for an IEE." Because the case is being dismissed, it is certainly true that the IEE will not be completed, and that the district will not be paying for any costs needed to complete the IEE after the ALJ ordered its suspension on September 16, 1998. It is not clear to the ALJ as to whether the district is also seeking relief from payment responsibility for the July 27 through September 11, 1998, period. I can see no apparent basis for relieving it of that responsibility. The district consistently agreed to performance of an IEE during the prehearings conducted herein. Its objection was limited to the individual selected by [Father] as the IEE provider. That individual did not perform IEE services. Further, the relevant state code provision appears to place the payment burden squarely on the board:

   (7) INDEPENDENT EDUCATIONAL EVALUATION. A hearing officer may order an independent educational evaluation of a child as part of a hearing. The independent educational evaluation shall meet the requirements in s.PI 11.08(2) and shall be paid for by the board that is a party to the hearing.
   Wis. Admin. Code §PI 11.10(7).

   The district has not explained why the ALJ should not follow this clear directive regarding payment. Accordingly, the $406 IEE cost shall be paid by the [Unnamed] School District.

1. [Student] has been a resident of the [Unnamed #2] School District since August 19, 1998, and therefore the [Unnamed] School District currently has no responsibility to evaluate his possible status as a child with EEN, or to provide services to him.

2. The [Unnamed] School District continues to have the responsibility of paying $406 in IEE costs to the Eau Claire School District.

NOW, THEREFORE, it is hereby ORDERED that

(1) the [Unnamed] School District bear responsibility for payment of $406 in IEE costs to the Eau Claire Area School District, and

(2) that in all other respects, the petition in the above-referenced matter be dismissed with prejudice.

Dated at Madison, Wisconsin, on October 31, 1998.