Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

RULING ON STAY-PUT MOTION

On January 29, 1999, [Student] ([Student] or the petitioner) filed a Motion for an Order directing the [Unnamed] School District (the District) to allow the petitioner to enroll at Winnequah Middle School (Winnequah). The Motion argued that the petitioner was entitled to the "stay- put" protections of state and federal law, and that his most recent placement had been at Winnequah. On February 3, 1999, the District filed a response opposing such placement. On February 8, 1999, the petitioner filed a reply in support of its Motion.

The parties agree that the "stay-put" provisions of federal and state law provide that, during the pendency of a due process proceeding conducted pursuant to sec. 1415, the child shall remain in the "then-current education placement of the child," unless the state or local educational agency and the parents or guardian otherwise agree. 20. U.S.C. § 1415(j) and sec. 115.80(8), Wis. Stats.

The parties dispute the meaning of "then-current educational placement of the child" as it relates to the petitioner. The U. S. Office of Education has opined that a child’s "then current educational placement" would "…generally be taken to mean current special education and related services provided in accordance with a child’s most recent IEP." EHLR 21:481 The term "then current educational placement" means the child’s last mutually agreed upon placement at the moment when a due process proceeding is commenced. Board of Education of the Northeast Central School District, 27 IDELR 1108 (SEA Mass. 1997) Accordingly, the initial question presented is what was the child’s last mutually agreed upon placement? Id., p.1110

As background, it must be noted that the decision of Hearing Officer Vance clearly held that a day treatment program was the least restrictive environment, given the severity of the petitioner’s outbursts and the threat he posed to himself and others. That decision, issued November 21, 1997 (the Order) held that "the appropriate placement for [Student] at this time is a day treatment program for severely emotionally disturbed children." (Order, p. 32) Subsequent to the Order, the District was unable to find a day treatment program in the Madison area that met [Student]’s needs. Both the District and the petitioner agreed to an alternative sixth grade placement at Winnequah in a combination of special education classes and mainstreaming into regular education classes. A new IEP was developed for the seventh grade, effective August 28, 1998. This IEP incorporated continued placement at Winnequah, in a combination of special and regular class room settings.

On December 9, 1998, [Student] and a female student wrote each other notes that contained religious slurs. Ultimately, [Student] became involved in a fight with the girl and pulled her hair and scratched and hit her in the face and stomach. As a result of this violent outburst, [Student] was suspended from school for five days. A Manifestation Determination concluded that the December 9, 1998, incident was a manifestation of [Student]’s disability.

Following the suspension period, the District conducted a functional behavioral assessment of the petitioner. On December 15, 1998, an IEP team meeting was convened to review and revise [Student]’s IEP. The December 15, 1998, IEP sets forth placement at the American Family Institute, a day treatment program, as the appropriate placement for the petitioner. The December 15, 1998, IEP placement was not formally appealed until January 12, 1999. However, there appears to be no dispute that the December 15, 1998 placement was never agreed to by [Mother], [Student]’s mother. Neither party has provided the specific dates when school was in session during this holiday period, but the ALJ assumes that there was no school during some portion of this period. There is also some suggestion that [Student] was ill during this period. What is not in dispute is that the placement at AFI was ultimately appealed and is the subject of the pending due process hearing request. There was therefore no agreement of the parties to the change in placement to AFI. Accordingly, "the child’s last mutually agreed upon placement" was at Winnequah Middle School, as reflected in the August 28, 1998 IEP.

On the record before the Division, there appears to be a substantial risk that [Student] will continue to be a danger to himself and others. However, the District, in failing to implement the Order of Hearing Officer Vance, undertook a commitment to provide a safe environment to teach [Student] and others at Winnequah until such time as his placement is lawfully changed. Further, the ALJ can not stretch the meaning of "weapon" within the meaning of sec. 1415(k)(l)(ii)(I) to include [Student]’s hands. As counsel for the petitioner notes, such a reading under that provision is contrary to established norms of statutory construction.

It should be noted that because there is reason to believe the current placement represents a danger to the petitioner, the District has a right to request an expedited hearing under 20 U.S.C 1415(k)(7)(c)(i).

ORDER

WHEREFORE IT IS HEREBY ORDERED, that the petitioner’s placement remain at Winnequah during the pendency of the due process proceeding.

Dated at Madison, Wisconsin on February 10, 1999.