Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

TO:	Ms. Jeanne Tregoning	[Student]
	Department of Corrections	Ethan Allen School
	149 East Wilson St.	P.O. Box 900
	Madison, WI 53702	Wales, WI 53703
	Mr. David Whitcomb
Chief Legal Counsel
	Department of Corrections
	149 E. Wilson St.
	Madison, WI 53703

______________________________________________________________________

MEMORANDUM DECISION AND ORDER

On or about March 24, 1999, Mr. [Student] filed a request for a due process hearing. [Student] is a special education student at Wisconsin's State Department of Corrections (Department) Ethan Allen School (high school) in Wales, Wisconsin. On March 24^th, 1999, [Student] filed a letter with the State Department of Public Instruction alleging that the Department was not providing a free and appropriate education (FAPE). He goes on in his due process hearing request to list recent examples where he thinks a FAPE was not provided. One of the purposes of the Individuals with Disabilities Education Act (IDEA) is to provide a FAPE designed to prepare children with disabilities for employment and independent living. 20 USC sec. 1400(d)(1).

A pre-hearing teleconference was noticed on April 5, 1999 and held on April 7, 1999. The Department was represented by its Chief Legal Counsel, David Whitcomb. [Student] appeared with neither counsel nor parent. After being reminded that he had a right to obtain legal counsel, [Student] acknowledged that he knew he had that right, but declined representation.

The Department raised an objection to these proceedings on the grounds that [Student] did not have standing to file an application on his behalf and that this lack of legal capacity effectively terminated his request for a due process hearing. The undersigned administrative law judge agreed to determine this threshold issue before continuing with additional due process requirements.

The Department based its standing argument on two facts: 1) [Student], as a child, does not have standing under Wisconsin Statutes to file a due process hearing request as these rights are reserved for parents and attorneys representing children, and 2) Any rights that [Student] might have had were extinguished when he graduated from high school in January, 1999.

The age of majority issue is addressed first. [Student] is seventeen years old. He admitted this fact in his written application for a due process hearing, and repeated it at the pre-hearing teleconference; his birth date is [deleted].

Wisconsin statutes are clear about who can bring a due process hearing request before the Division of Learning Support, Equity and Advocacy in the Department of Public Instruction. Specifically, " [a] parent, or the attorney representing the child, may file a written request with the division for a hearing . . ." sec. 115.80(1)(a), Wis. Stats. [Student], as an unrepresented individual under the age of 18, cannot file for a due process hearing alleging a lack of FAPE.

Moreover, the statute transfers the parental rights of a child with a disability to the child when he or she reaches the age of 18, sec. 115.81, Wis. Stats. For the interests of this statute, the child becomes an adult at age 18.

The reasons for this policy are fairly obvious. Prior to a certain age or status, a child with a disability is assumed to be not competent to understand his best legal and educational interests. This age-based prohibition provides a protection for children by requiring an adult -- either a parent or an attorney -- to participate.

In addition, by requiring a more substantial filing interest like that required with an adult request for due process, the opportunities for mischief and frivolous claims are diminished.

Clearly, the Legislature did not intend to give the due process rights to children with a disability without either the assistance of counsel or the participation of a parent. If [Student] continues to decline counsel, he will see his rights switch from those of a child to those of an adult at age 18, so that any denial of rights granted here are temporary. He will be able to review his legal and educational options with or without counsel when he turns 18. But for now, his request for a due process hearing fails for his lack of standing.

The Department noted and [Student] admitted at the pre-hearing that he was a recent graduate of high school. Upon this fact the Department makes a second point: [Student] does not have standing to pursue a due process hearing because he has graduated from high school. It notes that sec. 115.76(3), Wis. Stats. defines a child as a "person who is at least three years old but not yet 22 years old and who has not graduated from high school." Sec. 115.76(3) Wis. Stats. (emphasis added). Therefore, the Department argues, [Student] can no longer be classified as a "child with a disability" for purposes of this statute.

The fact that [Student] is graduated is a more permanent impediment to his request for a due process hearing than merely his age or representation. He, after all, cannot un-graduate.

One of the purposes of IDEA is to provide children with the means for employment and independent living. In other words, education is the means to some other end. The statute delineates graduation as a signal that the state's public education responsibility is completed. See also 34 CFR 300.122(a)(3)(i), effective May 11, 1999. Without either an age or accomplishment cutoff, the responsibility for a free and appropriate education would continue interminably.

[Student] alleges a violation of FAPE for school district conduct after he graduated. This is outside the definition established by the statute. Claims for school district conduct before his graduation may still be viable, but were not alleged here. Again, [Student]'s request for additional due process fails for lack of standing.

These two issues, analyzed together put [Student] in a seemingly contradictory position. On the one hand, he is not an adult because of his age, precluding him from pursuing his due process hearing request. On the other hand he is not a child because his successful graduation has triggered a change in his status. Yet that is how the statutes are written. Each provision seeks to accomplish some policy goal and the sound administration of the due process requirements under IDEA.

NOW THEREFORE IT IS HEREBY ORDERED that this due process matter of [Student] is dismissed.

Dated at Madison, Wisconsin, this 19^th day of April, 1999.

APPEAL TO COURT. Within 45 days after the decision of the administrative law judge has been issued, either party may appeal the decision to the circuit court for the county in which the child resides under sec. 115.80 (7), Wis. Stats., or to federal district court pursuant to 20 U.S.C. § 1415 and 34 C.F.R. § 300.511.