State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

PRELIMINARY RECITALS

The Department of Public Instruction (DPI) received on June 9, 1999, a request for a due process hearing under Subchapter V, Chapter 115, Wis. Stats., and the Individuals with Disabilities Education Act (IDEA). The petitioner seeks to review a decision by the [Unnamed] School District in regard to free, appropriate, public education (FAPE). A hearing was held on July 8 and 9, 1999 at [City], Wisconsin. At the request of both parties, the record was held open and the decision delayed until September 10, 1999.

The issue for determination is whether [Student] was denied a free, appropriate, public education (FAPE).

There appeared at that time and place the following persons:

1. [Student] is an eleven year-old student enrolled at the Olson Middle School in the [Unnamed] School District (hereinafter "district" or "school district").
2. [Student] has been enrolled in the district since kindergarten in the 1993-94 school year. [Student] received his elementary education at the Lyndon Station Elementary School.
3. In the spring of 1996, [Student] was diagnosed as having attention deficit hyperactivity disorder (ADHD). His doctor prescribed Ritalin to treat the effects of the ADHD. See Hearing Transcript (hereafter, Tr.) at 244 and Ex. 31.
4. In the 1996-97 school year, [Student] was referred for disciplinary action on seven occasions. On one occasion, [Student] was disruptive in class. Five remaining referrals dealt with misconduct on the school bus and one on the playground. In the 1997-98 school year, [Student] was referred for disciplinary action on ten occasions. Four incidents occurred on the school bus while many of the others occurred during unstructured periods of time in school. See Ex. 12. [Student] did have other incidents of misbehavior in a classroom setting but they were relatively minor and not reported.
5. On November 12, 1997, one of [Student]'s teachers at the elementary school referred him for a special education evaluation. However, the paperwork was never processed because [Father] did not want his son labeled as a special education student. See 7-9-99 Tr. at 8-9.
6. The areas to be assessed included [Student]'s intellectual, academic, and social/emotional development. In a February 4, 1998 report, the multidisciplinary team ("M-Team") concluded that [Student] did not have a learning disability (LD) or an emotional disturbance (ED). The M-Team did identify [Student] as other health-impaired (OHI) as a result of his ADHD. However, the M-Team concluded that [Student] did not need special education. See Ex. 7.
7. Although the M-Team determined that [Student] did not qualify for services under special education law, the School District did feel that [Student] was covered by Section 504 of the Rehabilitation Act (hereafter, 504).
8. A Section 504-accommodation plan was prepared for [Student] on February 8, 1998. See Ex. 6. Areas of need and the corresponding adaptations, modifications, and accommodations to his curriculum were identified. Transition to Olson Middle School meant assigning a mentor for the ensuing school year. Social skills meant counseling sessions with the guidance counselor twice a month. Teachers were also directed to not raise their voice when addressing [Student], as that would make him defensive.
9. On September 1, 1998, another Section 504 Team meeting was held to develop a new accommodation plan for [Student]. This plan contained the counseling and voice control from the February 8^th 504 plan, but added that the school must provide crisis intervention by Bill DeVoe when needed and that it must inform [Student]'s teachers about his ADHD. See Ex. 5.
10. During the first month of the 1998-99 school year, [Student] received five disciplinary referrals for committing acts of misconduct, two of which occurred on the school bus and three on the playground. See Ex. 12. However, the most serious incident occurred on September 21, 1998. On that date, [Student] brought a hunting knife onto a school bus and onto school grounds. The knife had a locked back and a blade approximately four inches in length. See 7-8-99 Tr. at 155.
11. [Student] got the knife as a gift. As [Student] left for school, he realized he had the knife in his pocket. He decided that he would go to school with the knife rather than return to his home and miss the bus.
12. Based upon this incident, [Student] was suspended from school. Later, [Student] was recommended for expulsion from school for the remainder of the 1998-99 school year. See Ex. 30 at 88-89.
13. On September 22, 1998, and again on September 28, 1998, [Student]'s 504 Team met to consider whether [Student]'s possession of a knife at school was a manifestation of his ADHD disability. At the conclusion of those meetings, the 504 Team concluded that possession of the knife at school was not a manifestation of [Student]'s ADHD disability. See Ex. 14.
14. The School District's Board of Education conducted an expulsion hearing on October 6, 1998. At the conclusion of the evidentiary hearing, the Board of Education ordered [Student]'s expulsion from the School District for the remainder of the 1998-99 school year. Subsequently, S[Student], through his parents and his attorney, filed an appeal of the expulsion to the Superintendent of Public Instruction.
15. [Student]'s father, [Father], submitted a written referral to Ann Fecteau, the School District's school psychologist, requesting that [Student] be evaluated for a possible emotional disturbance disability. See Ex. 20.
16. Following the School District's receipt of this referral, evaluations were conducted and previously collected data was reviewed. On December 18, 1998, an M-Team met to discuss the evaluation results. The majority of the M-Team did not feel that the information in its possession substantiated significant difficulties in two or more environments that were chronic, severe or frequent. Accordingly, the M-Team did not find [Student] eligible under the category of emotional disturbance. See Ex. 15.
17. The M-Team again concluded that [Student] met the criteria for OHI. However, it was felt that [Student] did not need special education to address his ADHD. The M-Team determined that [Student]'s areas of need could be met through supplemental aids and services as specified in his 504 accommodation plan.
18. At the conclusion of the December 18 meeting, [Father] submitted a written request to Ann Fecteau to refer [Student] for a learning disabilities evaluation. He also requested an independent education evaluation related to the presence of emotional disturbance. See Exs. 21 and 22.
19. On December 29, 1998, Superintendent Benson reversed the School District's expulsion decision on the grounds that the Board of Education failed to consider whether some collateral instances of misconduct were a manifestation of [Student]'s disability. The Superintendent held that the School District could correct its error without completely rehearing the case. The Board of Education could either refer evidence of the collateral acts of misconduct back to the 504 Team for a manifestation determination or, in the alternative, could reconvene and determine whether or not [Student]'s possession of the knife at school was sufficient in and of itself to warrant expulsion. Based upon the Superintendent's reversal of the expulsion order, [Student] was readmitted to school on January 4, 1999, and attended classes in the same manner as he had in September 1998.
20. On January 12, 1999, the M-Team concluded once again that [Student] did not qualify for special education under the category of emotional disturbance. Again, the M-Team concluded that [Student] did not meet the criteria of a disability under the OHI category. The M-Team acknowledged that [Student] had difficulties in school, but held that those difficulties were related to his ADHD and were not consistently severe or frequent. The M-Team also concluded that [Student] had positively responded to the accommodations set forth in the 504 Plan. Thus, the M-Team determined that [Student]'s educational needs of attention to task, following directions, etc., could be met through supplemental aids and services and the 504 Plan. No need for special education was found. See Ex. 17.
21. On January 18, 1999, the Board of Education decided to reinstate [Student]'s expulsion for the remainder of the 1998-99 school year based solely on the September 21, 1998 knife incident. In its written decision, the Board of Education noted that at the request of the parents, an additional manifestation hearing had been conducted on January 12, 1999, and that all prior information was reviewed and all additional information submitted by the parents and their doctor was considered. The Board further noted that based upon that information, it continued to believe that [Student]'s actions were not a manifestation of ADHD.
22. On March 18, 1999, the [Family] commenced an action against the School District in the United States District Court for the Western District of Wisconsin. The [Family] alleged that the expulsion violated federal and state laws, including Section 504 of the Rehabilitation Act. The [Family] sought a preliminary injunction, seeking to enjoin the School District from enforcing its expulsion order. In an April 1999 bench decision, Judge John C. Shabaz denied the motion, finding that the [Family] had less than a negligible chance of succeeding on their claim. The [Family] ultimately agreed to dismiss their lawsuit against the School District. The Section 504 claim was dismissed with prejudice.
23. On April 8 and 12, 1999, the M-Team met to consider data collected by team members, as well as the independent education evaluation of Dr. Bonnie McCarty.
24. In the end, the M-Team concluded that [Student] met the criteria for OHI. The majority of the M-Team rejected the notion that [Student] qualified for special education under the categories of emotional disturbance (ED) or learning disability (LD) because his problems were not severe or frequent. See Ex. 26. With regard to learning disabilities, the majority of the team concluded that although [Student] was evidencing some delays in reading and writing, those delays were not great enough to satisfy Wisconsin's LD eligibility criteria. Once again, the M-Team concluded that [Student] did not need special education services.
25. In the 1997-98 school year, [Student] received "A's", "B's", and a few "C's" in his classes. In other non-graded academic areas, [Student] mostly received "S's" signifying satisfactory performance. See Ex. 2 (1997-98 Grade Report).

The overriding issue is whether [Student] was denied a free, appropriate, public education. There is no disagreement that he does qualify under section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794) due to his ADHD. The parties do not agree as to whether he qualifies under the Individuals with Disabilities Education Act (IDEA). In addition, the parties disagree as to whether [Student]'s act of bringing the knife to school was a manifestation of his disabilities, which at a minimum would include his ADHD.

I. RELEVANT LEGAL BACKGROUND

Congress enacted the IDEA with the intent "to assure that all handicapped children have available to them a free appropriate public education which emphasizes special education and related services designed to meet their unique needs, [and] to assure that the rights of handicapped children and their parents or guardians are protected . . . ." 20 U.S.C. § 1400(c). States must provide special education in accordance with the IDEA in order to receive federal financial assistance.

A Wisconsin court has addressed the IDEA in State v. Trent N., 212 Wis.2d 728, 730(Ct. App. 1997):

The decision cites s. 115.76, Wis. Stats., which states in pertinent part:

This statutory provision is implemented by an administrative rule, which in this case is found in s. PI 11.35, Wis. Admin. Code, and states in pertinent part:

II. LEGAL PRESUMPTIONS

There is a legal presumption that the educational program proposed by the school district is appropriate for the child. This presumption is based on the IDEA'S deference to the expertise of local educational authorities in developing educational programs. See Bd. of Educ. v. Rowley, 458 U.S. 176 (1982); Almo Heights Independent Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1158 (5th Cir. 1986). Substantively, petitioners have the burden of proof concerning eligibility for special education services, Stemple v. Board, 623 F.2d 893 (4th Cir. 1980).

The Court may not substitute its own notions of sound educational policy for those of the school authorities that they review. Hendrik Hudson District Board of Ed. v. Rowley, 458 U.S. 176, 206, 102 S.Ct. 3034, 3051, 73 L.Ed.2d 690 (1982).

In this case, the [Family] assert that [Student] is a "child with disabilities" (i.e. [Student] is disabled and is in need of special education). Although the School District has found [Student] to be disabled under the OHI category, it has not found him to be in need of special education. Since the [Family] are seeking to change the status quo, they bear the burden of demonstrating that [Student] is eligible for special education services or that any educational plans are inadequate.

III. DOES [Student] MEET THE ED CRITERIA

The first qualifying condition to be considered is ED. The school district argued that [Student] does not meet the emotional disturbance eligibility criteria so that his condition does not trigger the special education requirement. Children who have a serious emotional disturbance require special education and related services. The state regulations at Wis. Admin. Code § PI 11.35(g)2, are the same as those found at 20 U.S.C. § 1401(a)(1)(A). The federal regulations implementing the federal law is set forth at 34 C.F.R. § 300.7(b)(9), and it includes the criteria that must be met to satisfy eligibility for special education as seriously emotionally disturbed:

Petitioner contends that he meets eligibility criteria for ED because of an inability to build or maintain satisfactory interpersonal relationships with peers and teachers, inappropriate types of behavior under normal circumstances, and because of depression. The District contends that any problems that [Student] has in these areas are not severe enough to meet the special education criteria as ED.

The first question is whether [Student] exhibits an inability to build or maintain satisfactory interpersonal relationships with his peers and teachers? Petitioner asserts that he has no friends and has not gotten along with teachers, thus satisfying the criteria of an "inability to build or maintain satisfactory relations with peers and teachers." See 34 C.F.R. § 300.7(b)(9)(i)(B). The District contends that [Student] had friends at school and has had good relationships with at least some of his teachers. Based on the testimony, I find that [Student] does not have a lot of friends but does have a few. Further, there was little evidence to show that [Student] does not interact appropriately with other children at school.

The District witnesses credibly testified that they, or other teachers, have observed [Student] associating appropriately with his peers. The petitioner's testimony about [Student]'s problems with his relationships rest mainly on the findings of Dr. McCarty, who had little opportunity to see [Student] in a school setting given the briefness of her interview. I conclude that [Student] has established some satisfactory relationships with peers and at least some of his teachers. Therefore, he does not meet the ED criteria of an inability to build or maintain satisfactory relationships with peers and teachers.

Next, does Petitioner exhibit inappropriate types of behavior or feelings under normal circumstances? Petitioner asserts that he meets the criteria of "inappropriate types of behavior or feelings under normal circumstances" because of his behavior in the classroom and on the school bus. There is no disagreement that [Student] does become disruptive at times in class. Further, he has had problems on the bus and has been disciplined on a number of occasions. The school district contends that these incidents are not severe and are within normal limits for an active boy of [Student]'s age.

[Student]'s father also testified that his son does not always behave at home. None of [Student]'s teachers, or for that matter, any of the persons who have assessed [Student] described his behavior as bizarre or psychotic. Additionally, Mr. DeVoe testified that his behavior was manageable with the use of "time-outs". Moreover, none of the persons who assessed [Student] diagnosed him as having a significant emotional disturbance. There were no tests scores indicative of a significant emotional disturbance on measures of social/emotional functioning. I conclude that [Student]'s problems stem from a conduct disorder, not a severe behavior problem, and as such, do not meet this eligibility criterion of SED.

Third, does Petitioner exhibit a general pervasive mood of unhappiness or depression? Petitioner asserts that, in August 1996, Drs. Varvil-Weld and Hoffman diagnosed him with depression, which satisfies the SED criteria of a "general pervasive mood of unhappiness or depression." 34 C.F.R. § 300.7(b)(9)(i)(D).

I will not dispute the finding by [Student]'s psychiatrists that he suffers from some form of depression. However, more must be provided that just a diagnosis. The depression must also be pervasive in order to meet the ED criteria. See 34 C.F.R. § 300.7(b)(9)(i). This requirement means that the depressive mood or unhappiness must be exhibited in major areas of [Student]'s life, including school, community, and home. There was no persuasive evidence that [Student] suffered from a general pervasive mood of unhappiness or depression which has been exhibited in all areas of life, including school and home. While his father testified that he felt [Student] was depressed, many witnesses testified that they saw no such mood present when [Student] was around them. Another requirement is that these indicators of ED exist over a long period of time and to a marked degree. 34 C.F.R. § 300.7(b)(9). Therefore, while [Student] is occasionally depressed, it does not mean that he is depressed at all times. Further, as discussed above, ADHD can result in low self-esteem and mood lability. There is good reason to believe that [Student]'s depressive disorder may be in part, a component of the ADHD. Thus, I must find that [Student]'s depressive disorder does not meet the ED criterion of a general pervasive mood of depression or unhappiness.

Petitioner did not assert that he meets ED criteria on any other basis nor was there evidence that he exhibits an inability to learn or has a tendency to develop physical symptoms or fears associated with personal or school problems.

In short, I do not find evidence that [Student] has a condition, or a combination of conditions that would be at a level of severity that qualify it as a handicapping condition as found in Wis. Admin. Code § PI 11.35(g)3, which states:

I agree with the school district when it stated in its brief at pages 25-26:

IV. DOES [Student] MEET THE LD CRITERIA

During the hearing, the petitioner alluded to the possibility of being learning disabled. Wis. Admin. Code § PI 11.35(f) states that a learning disability "denotes severe and unique learning problems due to a disorder existing within the child which significantly interferes with the ability to acquire, organize or express information." Section 11.35(f)a states: "The child, when first identified, shall have a significant discrepancy in functional achievement in two or more of the readiness or basic skill areas of math, reading, spelling and written language." I again refer to the petitioner's burden to show that the district's assessment is incorrect.

The petitioner has presented little substantive evidence to show that he has significant discrepancies in functional achievement. Moreover, none of the professionals who examined and treated [Student] diagnosed him with a specific learning disability. His intellectual testing has consistently shown that he is of at least average intelligence, with strong math abilities and some weakness in language skills. I see no evidence that would lead me to believe that [Student] would meet the requirment in Wis. Admin. Code § PI 11.35(f), which states:

The evidence presented at the hearing on LD was little more than conclusions, and thus does not meet the required burden. Thus, I agree with the school district that such results are not dispositive of the question of whether he is learning-disabled within the meaning of the applicable educational provisions.

V. ADHD AND THE OHI CRITERIA.

Both parties agree that [Student] does meet the OHI criteria because he does have the disorder commonly referred to as Attention Deficit Hyperactivity Disorder (ADHD). Because of that, I will describe the disorder in some detail. ADHD has at least three core components: distractibility, impulsivity, and hyperactivity. 1DC20, 24-25; 2DC133. The Diagnostic and Statistical Manual of Mental Disorders (3d ed. revised) (hereinafter "DSM-III-R") which is "a primary source" of information about ADHD, 1DC20, further describes ADHD:

DSM-III-R § 314.01 (emphasis omitted).

The inattention and impulsiveness associated with ADHD "may contribute to failure to complete assigned tasks or instructions, or careless performance of assigned work." Children with this disorder may have associate features including "low self-esteem, mood lability, low frustration tolerance, and temper outbursts. Academic underachievement is characteristic of most children with this disorder. In clinic samples, some or all of the symptoms of Oppositional Defiant Disorder, and Specific Developmental Disorders are often present." Id. "Some impairment in social and school functioning is common," and "school failure is the major complication" of the disorder. Id. ADHD is "common; it may occur in as many as 3% of children."

The presence of the conditions---attention deficit disorder or attention deficit/hyperactivity disorder---are not sufficient unto themselves to make a child eligible to receive special education services as other health impaired, seriously emotional disturbed or learning disabled. 20 U.S.C. 1401(a)(1); 34 CFR 300.5b7; Lyons by Alexander v. Smith, 829 F. Supp. 414 (D.D.C. 1993) as reported in 20 IDELR 164. A child suffering from ADHD may be considered "otherwise qualified" or disabled under Section 504. However, the presence of such a condition or a recognition of the referenced status does not necessarily mean that a child is entitled to special education. Such a child is merely entitled to an education designed to meet his individual educational needs as adequately as the needs of non-handicapped persons are met. See Lyons, supra, and 34 CFR 10433(b).

VI. DO ANY IMPAIRMENTS SIGNIFICANTLY INTERFERE WITH EDUCATIONAL PERFORMANCE THUS REQUIRING SPECIAL EDUCATION

For the sake of discussion, I will assume that I am incorrect and that [Student] does meet the ED criteria, since I must discuss educational performance as it relates to OHI in any event. The reason is the finding a student has ED or OHI is only the first half of a two-pronged test for IDEA. That condition must be so severe that it "significantly interferes with the child's total educational program" (for ED) or "adversely affects a child's educational performance" (for OHI). I find that there is insufficient evidence to show that neither condition meets either standard. [Student] has always been mainstreamed in regular education classes and has consistently received better than passing grades. Before the expulsion, he received grades that were "C" or better. [Student] was performing average to above average. In the core academic areas of language arts, social studies, science and math, [Student] consistently earned A's, B's and only a few C's. In other academic areas in which no letter grade was given, [Student] mostly received "Ss" for satisfactory performance. See Ex. 2.

The petitioner cited the Woodcock-Johnson Test of Achievement-Revised that [Student] took on March 2, 1999. See Ex. 28. At the time of the test, [Student] was in the fifth grade, seventh month (5.7). In the Woodcock-Johnson Test, [Student] received the following scores:

In reviewing the decisions in the Individuals with Disabilities Law Report, I note that all references to the Woodcock-Johnson test results appear to be reported based on a mean of 100. The petitioner, who has the burden in this case, failed to present any comparable or interpretive data. Nonetheless, the scores do appear to support the M-Team conclusions that although [Student] experienced delays in reading and written language, they were not so significant as to denote "severe and unique learning problems." Some of [Student]'s scores should also be taken into context. For example, in the written language portion of the testing, [Student] appeared to lack interest and motivation while doing the test. He did not put forth a good effort. According to Pam Penfield, it was apparent that [Student] did not like writing tasks and just wanted to get the work done. See Ex. 28.

In response to these assertions, the petitioners argued that based on [Student]'s intellectual capabilities, he should be receiving higher Woodcock-Johnson test results. Further, the good grades that [Student] has received are not a valid indicator as to his true educational performance. A case on point in terms of that argument can be found in Lyons, supra. The U.S. District Court in the District of Columbia, stated the following:

As for the failure of [Student] to do even better, a school district has no obligation to maximize a child's educational potential. Indeed, the school district's only obligation is to provide an opportunity for the child to receive some educational benefit. See Bd. of Educ. v. Rowley, 458 U.S. 176, 200 (1982).

A case on point, Manhattan Beach Unified Sch. Dist. and Southwest SELPA, may be found at 26 IDELR 457. In that case, the student, who was diagnosed with ADHD, had tests showing that he was of average ability. He had received grades of "A's", "B's", and "C's". His Woodcock-Johnson Test scores ranged from above average in math to below average in certain writing skills. The due process hearing upheld the district, with the hearing officer concluding:

Even if a student is found to be disabled, it must also be established that the disability adversely impacts the student's educational performance and the student requires special education as a result of the disability. The need for special education is an essential, and separate, requirement. Letter to Gallaghe , 24 IDELR 177 (OSEP 1996). "To be eligible under the IDEA, the student must have a qualifying disability and that disability must cause a need for special education services." See Radnor Township Sch. Dist., 25 IDELR 1229 (SEA Pa. 1997).

As discussed above, [Student] has repeatedly demonstrated adequate academic progress without the need for special education. Second, [Student] was able to marginally improve his behaviors in the classroom without ever receiving any special education interventions.

Where the student's needs can be met without special education, the student is not eligible. Even a student with learning difficulties is not eligible for special education unless the difficulties are "so severe that he cannot benefit adequately from the regular education program." Kelby v. Morgan Hill Unified Sch. Dist., 18 IDELR 831, 833 (9th Cir. 1992). See also Doe v. Bd. of Educ., 753 F. Supp. 65, 70 (D. Conn. 1990) and Huntsville City Public Sch., 20 IDELR 970, 972 (SEA Ala. 1994) ("if a student does not need specially designed instruction for academic success, he or she is not a child 'with disabilities' within the meaning of the Act"). (Emphasis added.)

Two cases, Aransas County Independent Sch. Dist., 29 IDELR 141 (SEA Tex. 1998), and Stoughton Public Sch., 29 IDELR 935 (SEA Mass. 1999), stand for the proposition that the existence of a disability does not automatically require special education. In the later case, the district determined that the student was eligible under Section 504 and developed an accommodation plan for her. Under the terms of the plan, the student would participate in an after-school homework program three times a week, take untimed tests, have access to a computer and participate in a journal writing program. The parent disagreed with the eligibility decision and refused to approve the 504 plan. The hearing officer upheld the district.

The petitioner in his brief (p. 8), states that the presence of certain services in the 504 plan are proof that the school district has acknowledged that [Student] needs special education. The school district is correct when it states that a student with a disability may qualify for accommodations and related services under Section 504 without showing a need for special education. See Letter to Zirkel, 24 IDELR 733 (OCR 1996). Indeed, if the petitioner were correct, the completion of a 504 plan would in many cases, be tantamount to an agreement to provide special education. This would eliminate the difference between these two laws, which would make the existence of both superfluous. I will make no finding that makes the existence of either law superfluous.

The school district argues that what is provided in the 504 plan are term "related services", which includes " . . developmental, corrective, and other supportive services as required to assist a child with a disability to benefit from special education, and includes ... Psychological services ... counseling services ... social work services in schools, and parent counseling and training." See 34 C.F.R. § 300.24 Related services are not automatically "special education."

In short, because [Student]'s alleged ED or his OHI do not adversely affect his educational performance and does not require special education, I conclude that [Student] does not meet the criteria to qualify for IDEA.

VII. [STUDENT]'S CONDUCT WAS NOT A MANIFESTATION OF A DISABILITY

The school argued that the petitioner may not challenge the school district's manifestation determination conducted by the 504 Team. The basis is that the 504 claim had been previously asserted by the [Family] in federal court and had been dismissed with prejudice. For this hearing, the petitioner is basing the challenge to the manifestation determination on the IDEA. However, I will not make a determination as to whether collateral estoppel, or issue preclusion, applies to this case. First, as discussed above, IDEA does not apply to [Student]. Second, either under IDEA or 504, if I consider the expulsion on the merits, I find that [Student]'s conduct was not a manifestation of a disability.

In Honig v. Doe, 484 US 305 (1988), the Supreme Court held that a school district could not unilaterally exclude disabled children from the classroom for conduct growing out of their disabilities. In this case, the school district completed the required investigation by the 504 Team during the September 1998 manifestation determination proceeding.

In researching this issue, I came upon a case that was very much on point. The case is in 2 GASLD ¶ 285, and is R.C. v. Oconee County School System. The only difference is that instead of a knife, the incident in R.C. involves a gun. The decision stated the following in pertinent part:

In the case at hand, [Student] considered whether he should take the knife to school as he ran to catch the bus that morning. He knew he might get into trouble but did so anyway. His deliberation shows that the action was not a manifestation of his ADHD/OHI. Thus, the expulsion by the school district must be upheld as lawful and [Student] was not denied a FAPE on that basis.

VIII. THE 504 ACCOMMODATION PLAN

The school district urges that it be allowed to continue to provide services under the 504 plan. It cited the policy of the Wisconsin Department of Public Instruction to avoid unnecessarily labeling children as requiring special education without first trying other interventions. See Hoffman v. East Troy Community Sch. Dist., 38 F. Supp.2d 750, 766 (E.D. Wis. 1999). ("One of the new objectives announced by DPI is to reduce inappropriate referrals and the labeling of children unnecessarily as special education students.") (citing WDPI Bulletin No. 96.01 (1996)).

As the school district raised the issue of the 504 plan and its implementation, I feel justified in considering it at this time. The district argued that with regard to special education students, courts have required more than an allegation of a school district's failure to provide a FAPE. In order to prove a 504 violation, the complaining party must show bad faith or gross mismanagement on the part of the school district. However, that conclusion and the district's reliance on Sellers v. Bd. Of the City of Manassas, 141 F. 3d 524 (4^th Cir. 1998) is misplaced as it pertains to a FAPE. Sellers concerns a student's attempt to collect damages for the school district's alleged failure to recognize his disabilities years earlier. That court stated in pertinent part:

Thus, the 4^th Circuit Court was addressing the question of damages under 504 by identifying that to succeed, the student must show that the school district committed gross negligence. This goes beyond the "mere issue" of whether a student is being denied a FAPE, as would be the case with a deficient 504-accommodation plan.

My authority to review a 504-accommodation plan is discussed in Lyons, supra. The U.S. District Court in the District of Columbia, stated the following:

The due process hearing officer also has the power to order changes in the 504-accommodation plan to meet certain specific problems. The following is from Palmyra Bd. of Educ., as reported in 27 IDELR 858:

See also 18 IDELR 374, concerning the hearing officer's right to order broader remedies. The relevance of the above to this case is my concern is that the 504 plan the district is relying on does not address all of [Student]'s problems. When I review the above cases, including Stoughton Public Sch., supra, which was cited by the school district, I see the many possible services that can be provided as part of a 504 plan.

In this case, I find that what is in [Student]'s 504 plan insufficient "to meet his individual educational needs as adequately as the needs of nonhandicapped persons are met." The district agreed frequently that due to his ADHD/OHI, [Student] has problems with his conduct, problems with staying on track in class, and problems with his self-concept. I do not find that the September 2, 1998 504 plan provides a remedy for the problems he faces due to his ADHD. For example, his problems with conduct are readily seen on the school bus, but I see nothing in the plan to address it. Further, the concerns in Stoughton Public Sch., supra, including written language and self-esteem needs and the need for remediation of certain skills are most appropriate here as well. None of the services placed in [Student]'s 504 plan fully address these needs. I reject the notion that counseling twice a month is sufficient. The district's 504-accommodation plan is minimal at best and must be redone so it will assure that [Student], as an "otherwise qualified handicapped individual", is not excluded from participation in a federally funded program "solely by reason of his handicap.

I realize that the petitioner will argue that the above determination on the 504-accommodation plan contradicts my prior determination that found that [Student] is not eligible for special education under the IDEA. I can only repeat that [Student]'s disability is one that requires services under 504, not the IDEA. That is why I am ordering a new 504 plan and decline to impose the IDEA. The IDEA is not an appropriate "remedy" for an inadequate 504 plan. IDEA is for a student that meets the applicable criteria. That is not true in this case.

Finally, this Order is prospective only. I am not ordering any compensatory education. Compensatory education is an appropriate remedy when the responsible educational authority has failed to provide a disabled child with an appropriate education as required by the IDEA. That is not applicable here.

IX. CONCLUSION

In the instant case, the School District has not denied [Student] a FAPE based on a failure to provide special education under the IDEA. He does not qualify for special education under IDEA as OHI, SED or LD. There has been little evidence that his OHI has had a significant negative educational impact. Also, [Student] committed a serious act of misconduct, which violated the School District's weapons policy and the Wisconsin expulsion statute. That act was not a manifestation of his ADHD.

However, I also find that [Student] was denied a FAPE based on an inadequate section 504 accommodation plan, and that the school district must immediately develop a new one. Based on my belief that it is in the best interests of the child, I am also requiring that Dr. McCarty be part of the group that develops the new 504 plan, if she is willing to do so.

1. [Student] does not have an emotional disturbance or learning disability, as those terms are defined in federal and state law.
2. [Student]'s act of bringing a knife to school was not a manifestation of his ADHD/OHI.
3. [Student] does not qualify for special education under IDEA at this time.
4. The petitioner was denied a FAPE based on an inadequate section 504-accommodation plan.

That the petition for review be remanded to the [Unnamed] School District to develop a new 504-accommodation plan as discussed in the above decision. This 504 team, including Dr. McCarty, must meet no later than 15 days following this decision, unless a delay is agreed to by [Father]. In terms of the issues concerning the IDEA, the petition is hereby dismissed.