Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

[Student] is enrolled as a fourth-grade student at Loganville Elementary School within the [Unnamed] School District (District). Although his academic levels are significantly below his age and grade levels, he has never received special education. In the fall of 1998 one of [Student]'s teachers submitted an exceptional educational referral on his behalf as a result of the observed educational deficiencies. The District notified [Student]'s mother, [Mother], that the District wished to evaluate [Student]'s need for special education. She refused to give consent for that evaluation and the District requested a due process hearing under sec. 115.80 (1)(b), Stats., to override that refusal.

A due process hearing was held on November 3, 1998. [Mother] did not attend the hearing. The Administrative Law Judge issued an order on November 16, 1998 giving the District authority to evaluate [Student]'s educational needs. Following that order, the District completed the evaluation, determined that [Student] was eligible for special education, developed an Individualized Education Program (IEP) and determined that he would be placed in special education at another school, Westside School. [Mother] refused to participate in the evaluation process and refused to give her consent to the proposed placement. The District filed the current request for a due process hearing on February 1, 1999 to override [Mother]'s refusal to consent to the placement in special education at Westside School.

A "Notice of Telephone Prehearing Conference" was mailed to the parties on February 5, 1999. The conference has held on February 12, 1999. [Mother] did not respond to the notice and did not participate in the conference. A "Prehearing Memorandum and Notice of Hearing" was issued and mailed to the parties on February 12, 1999, setting this matter for hearing on February 25, 1999. [Mother] called the Administrative Law Judge on February 22, 1999 and asked that the hearing be postponed. That request was denied during the phone conversation and a follow-up letter was sent to the parties affirming that the hearing would be held as previously scheduled. Neither that letter nor the notices mailed by this division to [Mother] were returned by the Postal Service. [Mother] did not appear for the hearing which was held on February 25, 1999.

1. [Student] (DOB XXXXX) is enrolled in the fourth grade at Loganville Elementary School, in the [Unnamed] School District.
2. [Student]'s verbal IQ (101) and his Full Scale IQ (90) fall within the average range of intellectual functioning (90-109).
3. Despite [Student]'s level of intelligence, there is a significant discrepancy between his functional achievement and his expected achievement. This discrepancy is most extreme in the areas of reading, written language and spelling. Although his expected level of achievement in these areas is at grade level 6.5, his actual level of achievement is at grade level 1.6 for reading, grade level 1.9 for written language and grade level 1.4 for spelling. As a result, his functional achievement in these areas is well below 50% of his expected achievement.
4. Participation in regular education has not resolved these discrepancies and is not likely to do so in the future.
5. The District has developed an appropriate IEP for [Student] and has recommended special education placement at Westside School. The placement will provide a blend of both regular and special education with special emphasis on instructional areas where [Student] is functionally deficient.
6. Special education and related services to meet [Student]'s unique educational needs are available at Westside School.
7. Westside School is the closest possible special education placement.

1. [Student] has learning disabilities and needs special education and related services under sec. 115.76 (5), Stats., and rule PI 11.35 (2)(f), Wis. Admin. Code.

2. The parent's refusal to consent to [Student]'s placement in special education results in a denial of Free Appropriate Public Education (FAPE) as defined in the Individuals With Disabilities Act (IDEA), 20 U.S.C. §1400, et seq., and Chapter 115 of the Wisconsin Statutes.
3. The IEP and educational placement developed by the District are appropriate and provide [Student] with Free Appropriate Public Education (FAPE) in the Least Restrictive Environment (LRE) as defined in the Individuals With Disabilities Act (IDEA), 20 U.S.C. §1400, et seq., and Chapter 115 of the Wisconsin Statutes.

A child qualifies for special education and related services if the child meets the definition of a "child with a disability" under sec. 115.76 (5), Wis. Stats. One of the basis for such a finding is the existence of "learning disabilities". See sec. 115.76 (5) (a) 10, Wis. Stats., and rule PI 35 (2) (f), Wis. Admin. Code. [Student] clearly meets these tests. Although he is of average intelligence and could be expected to function at grade level 6.5, his functional performance is profoundly lower. In each of three key instructional areas (Reading, Written Language and Spelling) he functions below the 2nd grade level. He also functions below his expected level in other areas (Math, Science, Social Studies and Humanities), but not to the degree found in the first three areas.

The District has evaluated [Student]'s unique educational needs and finds that he needs special education and related services. This is reflected in a detailed Evaluation Report and an IEP (exhibit # 12, pages 1 through 15) prepared by the District on January 14, 1999. The IEP is appropriate and is calculated to address [Student]'s educational deficiencies and to provide him with educational benefit in the least restrictive environment. That is the goal of both IDEA and state law.

Although state law requires parent approval for an initial placement in special education, a refusal to grant consent may be overridden. See sec. 115.80 (1)(b). Such an action is appropriate here where the parent's refusal is unreasonable and will deny the student FAPE. The only apparent basis for that refusal is a fear that placement in special education will stigmatize the student and subject him to teasing. That fear is unreasonable and is not a valid reason to deny FAPE. Accordingly, I am satisfied that it is necessary and appropriate to override the parent's lack of consent.

FOR THE FOREGOING REASONS, IT IS HEREBY ORDERED that the parent's refusal to consent to the proposed placement in special education and related services is overridden and the District is authorized to implement the IEP and initial placement.

Dated at Madison, Wisconsin, this 1st day of March, 1999.