Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

The PARTIES to this proceeding are certified as follows:

[Student], by

[Unnamed] School District, by

On August 9, 1999, the State of Wisconsin Department of Public Instruction received a request for a due process hearing under Chapter 115, Wis. Stats., and the Individuals with Disabilities Act (IDEA). Accordingly, the 45-day deadline for a decision is September 23, 1999.

On August 19, 1999, a prehearing conference was conducted by telephone, Jeffrey D. Boldt, Administrative Law Judge (ALJ), presiding. Pursuant to due notice, hearing was held at [City], Wisconsin on September 14 and 15, 1999. The parties submitted written closing arguments on September 20, 1999.

FINDINGS OF FACT

1. [Student] (d.o.b. xxxxx) is currently enrolled as a tenth-grade student at Concordia Academy, a private school located in Roseville, Minnesota.
2. [Student]’s parents (Parents) reside in Wisconsin inside the geographic boundaries of the [Unnamed] School District (District). [Student]’s parents unilaterally placed him at Concordia Academy in the fall of the 1999-2000 school year and, by letter dated July 6, 1999, sought prospective reimbursement of the costs of placement at Concordia Academy (Concordia) for the next three school years. (Ex. 109). The annual tuition sought was $4,985.00 per year. (Id.)
3. The parents of [Student] asserted that he had been denied a free and appropriate education (FAPE) during his ninth-grade year at [City] High School. The Parents further asserted that placement at Concordia Academy was the least restrictive environment (LRE) and that reimbursement for tuition expenses at Concordia was appropriate.
4. By letter dated July 27, 1999, and August 4, 1999, the District denied the Parents’ request to pay private school expenses for the next three years. The District vigorously disputed that the District had not provided FAPE to [Student] and that placement at or reimbursement for expenses at Concordia was appropriate.
5. [Student] attended fifth through seventh grade in District Schools. At the end of his sixth-grade year, [Student] was identified as having exceptional educational needs (EEN). Specifically, [Student] was identified as having an emotional disturbance (ED). As a result of this identification, [Student] received special education services under an individualized educational program (IEP) during his seventh-grade academic year. He was placed at a private school, Good Shepherd Christian Academy, (Good Shepherd) during his eight-grade year. [Student] returned to [City] High School, within the District, for his ninth-grade year.
6. The record was clear that [Student]’s eighth-grade placement at Good Shepherd was an academic disaster (TR. P. 247-250). No special education services were provided to [Student] at Good Shepherd, and [Student] was frequently off-task and failed all but one of his classes. (Id.)
7. In April of 1998, the Parents requested an independent educational evaluation (IEE) of [Student]. The IEE concluded that [Student] continued to have an EEN designation requiring special education services, but now identified him as having a learning disability (LD). [Student] has been identified as having Attention Deficit Hyperactivity Disorder (ADHD) and a non-verbal learning disorder (NVLD). (Ex. 44)
8. After the IEE, an IEP team, including the Parents, was convened to develop an IEP for [Student]’s ninth-grade year, which was the 1998-1999 school year. The District provided extended school year services (ESYS) to [Student] during the summer of 1998. There is no question that [Student] benefited academically from the summer school services he received from the District. [Student] made approximately a seven-month academic achievement gain in reading during the summer program. (TR 250-251) [Student] made progress in math as well. (Id.)
9. An IEP was developed for the 1998-1999 school year on June 9, 1998. (Ex. 20). [Student] was to receive three hours of learning disabilities placement, focusing on math and language arts and oversight in the "resource room" to supervise his progress in regular education classes. (Id.)
10. Subsequently, a second IEP was developed for [Student] for the Third Quarter of the 1998-99 school year on January 19, 1999. (Ex. 58) [Student] continued language arts and math placement in the L.D. room. He also now was placed in history and life skills in the E.D. room. (Id.)
11. Finally, a third IEP was developed for [Student] for the Fourth Quarter of the 1998-99 school year on March 17, 1999. (Ex. 87) [Student] now received history and resource in the L.D. room. [Student] continued life skills in the E.D. room and now took language arts in that room as well. (Id.) Also, a very specific alternative behavior plan was developed to deal with inappropriate comments and noncompliance.
12. At the beginning of [Student]’s ninth-grade academic year, (the 1998-1999 school year) there was an incident which seemed to poison the personal relationship between the Parents and [Student]’s principal LD teacher, Mr. David Brunn. (Mr. Brunn).
13. Mr. Brunn overheard [Student] discussing a dream involving the killing of parents and teachers. Reacting under District policy, Mr. Brunn properly involved the [City] High School Administration, including Principal Ms. Beth Lanning, (Ms. Lanning).
14. The details of the September 8, 1998, incident are really not relevant to a determination of whether the District provided FAPE to [Student] during the 1998-1999 school year. For purposes of this hearing, the important points are as follows.

    a. Mr. Brunn properly applied District policy relating to not evaluating but instead referring to the School Principal potential threats of violence by District students;

    b. [Student] was evaluated by Dr. David Morris as a consequence of the September 8, 1998, incident in lieu of other disciplinary actions against [Student];

    c. The Parents lost confidence in Mr. Brunn after this incident, and repeatedly sought to have [Student] placed with another teacher.

15. There was overwhelming and specific evidence that [Student] made significant academic progress in his ninth-grade placement at [City] High School. (Sweet, Toll, Brunn, Mueller, Tangen, Spencer-Beck, Ms. D.) Given the overwhelming and unrebutted nature of this evidence of academic achievement, it is not necessary to detail every component in this decision. However, by way of example, the following should be noted: during his ninth-grade academic year, [Student] met or exceeded his IEP goals for math and language arts and passed all of his classes but one regular education history class in the first semester. (TR. Vol. IV, pp. 8-17, Ex. 115). Evidence of the progress that the [Student] made during the 1998-1999 school year is also documented in the proposed IEP for the 1999-2000 school year. See Ex. 120. In regard to math, the proposed IEP provides:

In May 1998, an IEP evaluation team assessed [Student]’s instructional level in Math to be at beginning 6th grade. [Student] was stronger in applications than he was in calculations. On a standardized test given in January 1999, [Student] demonstrated beginning 7th grade achievement in Math calculations. Further growth has occurred second semester and he is anticipated to receive a B for his grade in Math. Ex. 120 at 375.

In regard to reading, the proposed IEP provides:

[Student]’s instructional level in reading is at the mid-7^th grade level, which represents an improvement of 1.5 years since his evaluation in May 1998. Id.

Further, on one portion of the Woodcock-Johnson Standardized Reading Test, the oral reading score, [Student] went from a 7.1 grade equivalent to an 8.9 grade equivalent from May, 1998 to May, 1999. (Tr. Vol. IV, pp. 394-395, Ex. 10)

The progress that the Student made during the 1998-99 school year is also reflected in the grades he received during his 9^th grade in the School District. See Ex. 107. [Student] passed all of his classes in the District, with the exception of the regular education World History class that he took during the first semester. Id. In comparison, during his 8^th grade at Good Shepherd Christian Academy, [Student] failed his academic classes. See Ex. 15.

The parents do not dispute that [Student] made significant academic progress, in the ninth-grade, during the 1998-1999 school year.

16. [Student] also made significant progress in terms of the frequency of inappropriate behaviors in the classroom over the course of his ninth-grade year at the District during the 1998-1999 school year. (Toll, Brunn, Spencer-Beck). There is no question that the number of disciplinary referrals for [Student] declined over the course of the school year, as he became aware of staff expectations and made progress in terms of overcoming his ADHD disability and conforming his behavior at school. (Id.)

    With respect to [Student]’s most serious behavioral problems, there were two disciplinary referrals that could be construed as threats. Both were early in the school year and were not repeated after the first semester. [Student]’s mother admitted that the seriousness of the District’s treatment may have had a positive impact on [Student]’s subsequent behaviors.

17. The Parents alleged that the Student was not educated in the least restrictive environment ("LRE"). The Parents’ allegations regarding LRE, however, evidence a clear misunderstanding of that term. LRE refers to the extent to which a student is educated with non-disabled peers. 20 U.S.C.§ 1412(a)(5); Wis. Stat. § 115.79(3). Contrary to the Parents’ assertions, it does not refer to whether a child is educated with LD students versus ED students. Although the Student is classified as LD, the Student may receive any services which are necessary for him to benefit from his program of education. Since [Student] demonstrated a need for social, emotional and behavioral services, the Student properly received such services even though he is classified as L.D. (Sweet) [Student]’s IEP’s gave careful consideration to the issue of whether [Student] was being placed in the LRE. The Parents were highly involved and motivated members of all the IEP teams, and approved, sometimes with reservations, all IEP placements during the 1998-1999 school year.
18. The law is clearly established that Parents do not have a right to pick teachers on behalf of [Student]. Any "personality conflicts" between Mr. Brunn and [Student] and/or his Parents did not have a significant detrimental impact upon [Student]’s educational achievement. Further, while conceding that [Student] made academic progress, the Parents assert that [Student] would have made even more progress if he had had another LD teacher. Clearly, that proposition is speculative at best. In any event, the remarkable progress [Student] did achieve is clear evidence that the District did provide FAPE.
19. The Parents did not establish that [Student]’s exposure to ED students was a significant factor in either academic or behavioral failures. The one class [Student] failed was a regular education class. Ms. Spencer-Beck, who taught [Student] in an ED social skills class, was one of the few teachers that the Parents liked. She testified that [Student] made good progress in her social skills class, and there is no question that [Student]’s behavior improved over the course of the school year. Significantly, there were no disciplinary referrals to the Principal’s office after March 3, 1999.
20. Based upon the academic and behavioral progress that [Student] made in ninth-grade, there is every reason to believe that placement at [City] High School this year would result in further significant and specific educational progress. Working with the Parents, the IEP team developed a highly specific IEP plan for the tenth-grade year at [City] High. (Ex. 120) The Parents never accepted this IEP, which is "proposed" rather than "final". However, based upon the record, there is every reason to believe that an appropriate IEP could have been developed for [Student]’s tenth-grade academic year.
21. The Parents failed to prove that placement at Concordia is appropriate. Mr. Randy Lowe, past principal and current administrator of Concordia, testified that the Academy does offer special education services. However, Mr. Lowe had never observed [Student] in any of his classes at Concordia and was not able to provide specific details demonstrating that Concordia best serves [Student]’s educational needs.

There were numerous points of dispute between the parents and with the District with respect to [Student]’s ninth grade academic year at [City] High School. Both the parents and the District worked very hard to provide appropriate services to [Student]. [Student] himself also worked hard, and achieved significant educational progress as a result.

None of the disputes between the parents and the District come close to denying FAPE to [Student]. Ultimately, each of the three IEP’s governing [Student]’s educational program was approved by his parents. There were no significant procedural violations of the IDEA by the District. The District repeatedly worked with the parents to meet [Student]’s needs and concerns raised by his parents. Most significantly, the academic progress made by [Student] speaks volumes about the appropriateness of the District specially designed instruction for [Student]. There was no showing by the parents that [Student] was denied FAPE.

Further, there was no showing that placement at Concordia is appropriate and necessary. The request for reimbursement must be denied.

1. The Division of Hearings and Appeals has authority to hear due process hearing requests and to issue necessary orders pursuant to sec. 227.43(lm), Stats.
2. "Free appropriate public education" (FAPE) means special education and related services that are provided at public expense and under public supervision and direction, meet the standards of the department, include an appropriate preschool, elementary or secondary school education and are provided in conformity with an individualized education program. Sec. 115.76(7), Stats.
3. "Special education" means specially designed instruction, regardless of where the instruction is conducted, that is provided at no cost to the child or the child’s parents, to meet the unique needs of a child with disability, including instruction in physical education. Sec. 115.76(15), Stats.
4. Under the IDEA, public school districts have an obligation to provide FAPE to children with disabilities who need special education services, 20 U.S.C. § 1412(a)(1). In order to provide FAPE, a school district must offer the disabled student an individualized plan of instruction "sufficient to confer some educational benefit." Rowley, 458 U.S. at 207. The level of educational benefit obtained is typically determined by looking at whether the student has made educational progress. See Board of Educ. V. Diamond, 808 F. 2d 987, 991 (3d Cir. 1986).

5. The determination of when FAPE has been met is a two-fold inquiry:

   First, [whether the school district] . . . has complied with the procedures noted in the Act . . . and second, [whether] . . . the educational program developed through the Act’s procedures was reasonable calculated to enable the child to receive educational benefits.

   Board of Educ. Of Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).

   The District provided FAPE to [Student]. There were no violations of IDEA procedural requirements. [Student] received significant "educational benefit" during his ninth-grade academic year, in the 1998-1999 school year.

6. Under the IDEA, Parents do not have the right to choose their child’s teachers. See generally Moubry by Moubry v. Independent Sch. Dist. No. 696, 27 IDELR 469 (D. Min. 1997) (reasoning that so long as qualified personnel are available, the determination as to which personnel will provide services to a disabled child are left to school districts); Pickens County Bd. Of Educ., 22 IDELR 180 (SEA Ala. 1995) (explaining that it is well settled law that it is responsibility and authority of local educational agency to determine appropriate personnel); see also Lachman v. Illinois State Bd. of Educ., 852 F.2d 290, 297 (7^th Cir. 1988) cert. Denied 488 U.S. 925 (1988)("parents, no matter how well motivated, do not have a right under the [IDEA] to compel a school district to provide a specific [educational] program").
7. The Parents failed to meet their burden of proving that Concordia Academy is an appropriate placement for the Student. See generally Board of Educ. Of City of Sch. Dist. of City of New York, 30 IDELR 64 (SEA NY 1998) (denying reimbursement where witness was not able to testify about size or nature of child’s classes in private school, and record did not include any specific descriptions of the classes in which student was enrolled or of the techniques which were used in the classes to remediate his academic deficiencies); Calaveras Unified Sch. Dist., 29 IDELR 1099 (SEA Cal. 1998).
8. This decision is timely because it is issued within 45 days of the request for hearing. 34 C.F.R. sec. 300-512(a)

WHEREFORE IT IS HEREBY ORDERED, that the District’s determination to deny reimbursement be AFFIRMED,

IT IS FURTHER ORDERED, that this matter be DISMISSED, WITH PREJUDICE.

Dated at Madison, Wisconsin on September 22, 1999.