Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

The Parties to this proceeding are:

On July 23, 1999, the Wisconsin Department of Public Instruction received a due process request from Attorney Ron Stadler on behalf of parents [Mother] and [Father] (hereinafter, parents) on behalf of their son, [Student] (hereinafter, student). That request indicated that the [Unnamed] School District (hereinafter, District) failed to provide the student with an appropriate education for the 1998-1999 school year, the summer of 1999 and the 1999-2000 school year.

The complaint alleged that the district did not have appropriate staff employed who could instruct the student on his Liberator and who was knowledgeable in the area of augmentative communication. The request also indicated that the District engaged in a pattern of harassment toward the family by discharging the student’s primary teacher Kris Orkin and the case manager, Al Thomaszewski. Further, the District is alleged to have followed inappropriate procedure as to the IEP process in July, 1999, by its inclusion and exclusion of participants, and not providing sufficient notice to the family.

Counsel for the parents submit[ted] a pre-trial motion on August 20, 1999, which was heard telephonically. Attorney Stadler indicated that the "period of transitioning" (identified as exhibit A in counsel’s motion of August 20, 1999), was not going to [be] implemented within the first two weeks of school. This was due to the fact that the District adjourned an August 19, 1999, IEP meeting, for two weeks. The first day of school was August 23, 1999. Counsel asked for an order requiring the District to provide transition services immediately for the Student.

The motion was heard telephonically on the day it was received. A copy of the student’s current IEP was also received on the same date. The undersigned Administrative Law Judge (ALJ) did not feel that she had sufficient information without testimony to decide whether the transition services in place for the student at the start of the school year violated a "stay put" order. The Administrative Law Judge (ALJ) recommended, but felt she could not order, the District to include in their transition services with the new Assistive Technology (AT) person, consultation with the former AT person. This may have been done previously and prior to August 20, 1999. A proper transition plan was an issue that was then included in the parent’s due process request.

The District has now filed a motion to dismiss for failure to state a claim upon which relief can be granted. In its motion, the District outlined four claims made by the parents. The District maintains they do not constitute violations under IDEA, even if these allegations are true. Counsel for the parents has responded to that motion by stating that there is no basis to dismiss any of the claims, and that they are all proper allegations to be addressed at the due process hearing.

In both his July 21, 1999, hearing request and August 20, 1999, motion request, Counsel for the Parents alleges the following claims which the District believes there is no relief which can be granted by the ALJ. They are:

1. The District engaged in a "pattern of harassment" by replacing Kris Orkin, [Student]’s primary teacher and removing Al Tomaszewski as [Student]’s case manager;
2. The District included unnecessary participants in [Student]’s IEP team;
3. The District unilaterally limited the August 19, 1999, IEP meeting to one and one-half hours; and
4. The District unilaterally adjourned the August 19, 1999, IEP meeting and indicated that the team would reconvene in two weeks.

It is true that the ALJ has the duty to enforce remedies, which may bring parties into compliance pursuant to sec. 115.80(5), Wis. Stats. It is also true that pursuant to Federal Rule of Civil Procedure 12(B)(6) there is proper authority to dismiss these claims (See: Brewster of Lynchburg, Inc. v. Dial Corporation, 33 F 3d 355 (4^th Circuit, 1994)). Under this rule, a motion to dismiss or failure to state a claim upon relief can be granted if "it appears beyond doubt" that the plaintiffs can prove no state of facts for which claims would warrant relief. (See: Conley v. Gibson, 355 U.S. 41 (1957)). It also requires that the ALJ must accept as true all of the plaintiff’s factual allegations and draw from them all reasonable inferences favorable to the non-moving party.

One of the underlying reasons for this due process request is the parent’s claim that the district engaged in a plan of harassment by replacing the AT teacher and the case manager. This change in personnel was contemplated and incorporated into the current IEP for the student. It notes as one of its goals that an appropriate transition plan would be implemented for this reason. The hiring and discharging of school personnel fits squarely in the province of the local education agency. It has the authority to change the specific personnel and providers of service as long as the "personnel are properly trained and qualified" (See: Tuscaloosa County Board of Education, at 21 IDELR 826). It is the quality of the services provided that goes to the heart of IDEA claim. There is other supporting case law, which firms up this ideology. In Bryan County School District, 30 IDELR 445, the ALJ expanded that concept using Lachman v. the Illinois State Board of Education, 852 F. 2d 290 (7th Circuit 1988). Lachman indicated that parents do not have a right not have a right to dictate educational personnel and teaching methodology as well. Changes in personnel do not result in a denial of FAPE, (See: Dallas School District, at 21 IDELR 873). The District cannot be considered to have harassed parents by who they choose to employ (Hardy County (WV) Schools, at 9 IDELR 1405), as long as there are appropriate staff providing services under IDEA. Accordingly, this is not a proper due process issue.

The IEP meeting for a student under IDEA is intended as a non-adversarial summit meeting regarding the education of a student so identified. Both the regulations and Wisconsin statutes speak as to who must attend such a meeting. (34 C.F.R. 300.344(a)(1-5)). This directive includes those who must attend such a meeting, as well as those who may attend upon invitation of the parent or local agency, (34 C.F.R. 300. 344 (6) (7)). The recently revised regulations were modified to include the right of parents and public agencies to bring other individuals to IEP meetings, at their discretion. The only benchmark that regulations require is that the individuals invited must have knowledge of a special expertise regarding the child (34 C.F.R. 300.344(a)(6)). This is parent’s counsel’s argument; he identifies three participants at the IEP meeting whom he claims have no special knowledge of the student. He does not identify if this attendance issue was experienced at both the July and August IEP meetings, but since it was addressed in his initial due process request; it can definitely be identified as a July IEP meeting issue. He also states that this is a proper consideration for the ALJ in a due process hearing. But the regulations seem to indicate that such an issue should be addressed elsewhere, namely at the IEP meeting. Regulation 34 C.F.R. 300.344(c) indicates that the knowledge and special expertise of an invited IEP participant shall be disclosed. This is done by the party who invited that individual to be a member of the team. It is at the IEP meeting where the parents have the opportunity to have identified for them the rationale for the attendance of certain individuals. The participation of members at the IEP meeting should be addressed at the IEP meeting itself. As stated in Letter to Heskett , 29 IDELR 905, IEP meetings are considered the vehicle for constructive dialog between the agency and the parent. The parents, who raised this issue through counsel in their correspondence of July 21, 1999, had an opportunity to address these IEP concerns at a subsequent IEP meeting in August, 1999. Accordingly, it will not be considered as part of the due process claim.

There are no procedural requirements which address the length and the right to adjourn the IEP meeting. Again, it is clear that this consideration was considered best left to the local agency. In Grapevine-Colleyville Independent School District, 21 IDELR 875, it was determined by the ALJ that the refusal by the District to continue discussion of topics raised by the parents at and IEP meeting did not violate the procedural requirements of IDEA. The parent had the right to participate, and after what was considered a reasonable time, the District had a right to adjourn. The ALJ in Muscogee County School District, 30 IDELR 75, also felt she lacked the authority to consider the issue. The parties were advised to "work together in a cordial manner". In this decision the ALJ opined:

This ALJ also noted that the ongoing conflicts and confrontations between the Parents and the District detracted the participants from using their best efforts at these meetings. Case law and regulations have usually left the issue IEP participants and their meeting schedules outside of the jurisdiction of ALJ. I also agree that it is not proper for me to consider these claims.

In summary, the District has properly asked and shall be granted dismissal on claims that are not within authority of the ALJ or more specifically stated: claims upon which relief cannot be granted. I find direction through regulation, statute or case law for me to grant this motion.

IT IS HEREBY ORDERED, that the following claims be dismissed as part of the due process hearing of the above named student:

1. Any claims of harassment by the District as to the choice of personnel employed by the District;
2. Any claims to proper IEP participants;
3. Any claims to the length of an IEP meeting as a violation under IDEA;
4. Any claims that an adjournment of an IEP meeting is a violation under IDEA.

The parents shall proceed on the remaining issues at the due process hearing scheduled for October 5, and October 7, 1999.

Dated at Milwaukee, Wisconsin on September 30, 1999.