Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

FINDINGS OF FACT
AND
CONCLUSION OF LAW

The parties to this proceeding are:

On August 6, 1999, [Father] and [Mother], the parents of [Student], filed a due process hearing request with the Department of Public Instruction alleging a denial of a free and appropriate public education (FAPE) for their son. In their request for a due process hearing, they listed thirteen specific allegations and a ten-point plan to remedy their complaint.

A telephone pre-hearing conference was scheduled and conducted on August 26, 1999. At the pre-hearing conference, a schedule was set. The deadline for a decision was extended from September 24, 1999 to October 11, 1999; a due process hearing was scheduled for September 21, 22 and 23, 1999; and post hearing briefs were due by October 5, 1999.

Also at the first pre-hearing conference, the parents expressed concern over the safety and well being of their son at [City] Middle School and noted that they were looking for a private school placement for [Student]. This was formalized in a follow-up letter from the parents dated August 30, 1999 rejecting the placement offered by the [Unnamed] School District and requesting an immediate alternate placement. The safety and well-bring charge was included as an additional allegation made by the parents.

At a follow-up telephone pre-hearing conference on September 3, 1999, the District motioned to dismiss portions of the allegations that occurred before the 1997-98 school year, as this was prior to the one year statute of limitations contained in Sec. 115(1)(a) 1, Wis. Stats. The undersigned ALJ found that while the child's behavior during the 1997-98 school year and before was relevant and not precluded under 34 CFR 300.7(c)(4)(i), the 1997-98 Individualized Education Plan (IEP) and the attendant procedural issues was precluded. The District also asked for more clarity in the parent's allegations in the motion and a lengthy point-by-point explanation by the parties resulted. The ALJ declined to order a more definite and certain allegation statement after the explanation was given to the District at the second pre-hearing conference.

A third pre-hearing conference was noticed and held on September 13, 1999. The undersigned ALJ declined to reverse his decision on the one-year statute of limitations as requested by the parents and denied the District's request to compel testimony of a privileged relationship between the child and his private psychologist.

A due process hearing was held on September 21, 22 and 23, 1999. It was continued and completed on Friday, September 24, 1999. Because of the exhaustive testimony and extra time needed for transcription, a deadline extension was ordered from October 11, 1999 to November 1, 1999. The post-hearing brief deadline was extended from October 5, 1999 to October 15, 1999.

1. [Student] (DOB xxxxx) is a child with a disability, in need of special education and is a resident in the [Unnamed] School District. He was due to commence his eighth grade year at [City] Middle School in the fall of 1999.
2. [Student] is emotionally disturbed. He has a general pervasive mood of unhappiness or depression that results in an inability to build or maintain satisfactory interpersonal relationships and in inappropriate type of feelings or behavior.
3. [Student] began receiving special education in the [Unnamed] School District in his fifth grade year after an M-team (later analogous to an IEP team) referral by his teacher. He received an Exceptional Educational Needs (EEN) assessment and his first M-team meeting was held on January 29, 1997.
4. The initial evaluation of [Student] by the [Unnamed] School District found that he was emotionally disturbed but did not have a learning disability. The EEN assessment confirmed this and noted that [Student] had trouble making friends, had a tendency to act out inappropriate behaviors and had poor self-esteem. The results of the Kaufman Test of Educational Achievement Comprehensive (KTEA) found that [Student] earned achievement scores that were in the average and above average percentiles - ranging from a 77 percentile in Math Applications and 70 percentile in Math Composite to a low of 25 percentile in Reading Comprehension and 30 percentile in Spelling.
5. [Student]'s sixth grade year was noted by an increase in discipline referrals for fighting. [Student] was selected for an anger management class at [City] Middle School in the fall of 1997. Also during this school year, [Student] began to see a private psychologist for counseling to treat his depression.
6. In May 1998 at the end of [Student]'s sixth grade year, [Student]'s mother requested another test to see if [Student] had a learning disability. A Woodcock-Johnson Test of Achievement was administered to [Student] and found him functioning at a wide range of skill levels. The grade equivalent for skills that [Student] tested at ranged from 4.1 in Letter-Word Identification and 4.3 in spelling to 10 in Passage Comprehension and 9.9 in Quantitative Concepts. His percentiles for these skill tests ranged from 14 percent in Letter-Word Identification to 88 percent in Basic Math Skills. Of particular note, [Student] received a 9.8 grade equivalent and in the 66th percentile for his Word Attack skills.
7. The IEP completed in May 1998, prior to [Student]'s seventh grade year, did not find that [Student] had a learning disability, but continued to determine that [Student] had an emotional disability. It found some low academic skills based on the achievement test, classroom functioning and grades. The IEP listed reading, spelling and writing as a need area for special education.
8. [Student]'s mother referred [Student] to Dr. Gary Sater, a psychologist for a psychological evaluation in October 1998. Dr. Sater found that [Student]'s primary special education need was in emotional disturbance but found that he needed direct academic assistance within the special education program. Dr. Sater recommended a direct instruction program to tutor [Student] in reading, decoding and basic written language skills.
9. Dr. Sater also administered a Woodcock-Johnson Achievement Test. Again, [Student] showed great variability in his scores. They ranged from a 90th percentile in Broad Math Skills to a 14th percentile in Word Attack skills.
10. [Student] has an unusual disparity between the verbal expression and processing skills and the visual/spatial functioning required in reading, spelling and other hand/eye functioning. Although not initially diagnosed in his evaluation of [Student, Dr. Sater stated in testimony that [Student]'s skills led him to believe that he had a nonverbal learning disability (NVLD). Dr. Sater stated that individual and multi-sensory instruction was the appropriate remedy for such an academic delay.
11. On August 26, 1999, the parents of [Student] unilaterally removed him from the [Unnamed] School District and placed him in a private school, effective September 13, 1999.

By all accounts and especially by direct testimony, [Student] is a charming, quick witted and articulate boy that was ready for the eighth grade at [City] Middle School this fall. [Student] is also a child with an emotional disability and has been given special education since his fifth grade year in an effort to surmount the depression that he feels.

[Student]'s parents suspect something else to explain [Student]'s poor grades and erratic behavior. They believe that [Student], in addition to being an emotionally disturbed child, also has a rare form of a learning disability, NVLD. They believe that the [Unnamed] School District should have known of this affliction and remedied it. In addition, they have numerous complaints with the IEP planning and process administered by the [Unnamed] School District and that [Student] believes that [City] Middle school is an unsafe school. The parents, for their son, argue that these three arguments, both separately and together, constitute a denial of the Free and Appropriate Public Education (FAPE) that contravene 24 CFR 300 et seq. These issues are addressed separately.

Nonverbal Learning Disability

[Student]'s parents believe that [Student] has a nonverbal learning disability and that the [Unnamed] School District denied [Student] a free and appropriate education by not identifying this syndrome and constructing a program that would be reasonably calculated to give [Student] an educational benefit. This is not found for the following three reasons.

First, the school district identified [Student] as a child with a disability and directed [Student] to special education beginning in the fifth grade. The district continued with an anger coping program to deal with this emotional disability during [Student]'s sixth grade year. All parties agree that [Student] suffers from depression that made his school performance variable. The fact is that the [Unnamed] School District found the most obvious disability but the NVLD, if it exists, was cloaked behind the more immediate and pervasive emotional disability.

Dr. Sater did not identify this syndrome when he evaluated [Student] in October of 1998. In testimony, Dr. Sater noted that [Student] did not exhibit the classic signs of NVLD, like difficulty with gross motor skills and was not surprised that the [Unnamed] School District did not diagnose this syndrome. According to Dr. Sater, [Student] may have a rare form of an uncommon syndrome that sits on the edge of contemporary psychological orthodoxy.

The [Unnamed] School District was following their version of what diagnostic medicine calls " The Zebra Theorem" -- that is when you are on a farm and hear galloping behind you, you assume a horse is the cause of the sound and not a zebra. The [Unnamed] School District treated the most obvious and pervasive impediment to [Student]'s learning, his emotional disability. To expect the [Unnamed] School District to find such a rare outcropping of this uncommon syndrome, NVLD, in the face of the larger emotional difficulties that it was addressing in the context of a middle school environment is an untenable standard.

Second, [Student] performed with variability during his years at [City]. Many determined that it was his lack of motivation to do the work that contributed to this variability- no doubt this behavior that resulted from his emotional difficulties had an influence on his performance. But one thing is clear, [Student] did not have the striking discrepancy between the intellectual ability that his average IQ would identify and his variable but average performance. This means that for purposes of the law, [Student], if he does have this syndrome, does not qualify as a legally sanctioned learning disability. At least yet. Dr. Sater, in his report and in testimony noted that [Student] needed one-on-one instruction as an intervention against [Student] dropping down into a learning disabled qualification. At the time of the due process hearing, [Student] did not have a legally actionable learning disability.

Ms. Nina Scherz-Busch, a psychologist familiar with NVLD, tested [Student] in August 1999. Her testimony was insightful for the prospective application of [Student]'s curriculum. I disagree with her assertion that the school district should have found this syndrome, one she called "uncommon" given the context. Until August, the [Unnamed] School District had its own evaluation and Dr. Sater's. These evaluations were in general agreement.

Third and perhaps most persuasive however, is that the [Unnamed] School District was implementing a remedy for [Student], as if he had NVLD. The [Unnamed] School District was absolutely responsive to the new information it gained as a result of Dr. Sater's evaluation. A new IEP was implemented in March 1999 that provided for Direct Instruction and was supervised competently and completely by [Student]'s seventh grade special education teacher, Ms. Shirley Mayer. In this case, treating the symptoms of this disorder is more important than diagnosing and labeling it. The District did not get bogged down in legal arguments or labeling distinctions, it moved to help [Student] with alacrity. According to testimony by [Student]'s putative eighth grade teacher, Ms. Carole Clark, and his 1999-2000 IEP, [Student] was going to receive a similar one-on-one instructional benefit. In spite of theoretical or personal differences, the [Unnamed] School District moved to provide an appropriate education.

Given the difficulty in finding this NVLD syndrome, the tenuous legal basis for applying it and the responsiveness of the school district in giving [Student] direct instruction, I find that [Student] was not denied FAPE because the [Unnamed] School District failed to diagnose a learning disability.

Procedural Problems

IEP's are not thunderbolted onto stone tablets from mountaintops. They are constructed in a collaborative way at least every year with participation from parents and school personnel. Collaboration implies that communication is offered and received and that trust is earned.

[Student]'s parents have numerous objections to the way that [Student]'s IEP process was administered. This has less to do with the actual procedural problems than the breakdown in trust between the parents and the District. For this, there is no easy salve to apply every year.

There is nothing facially wrong with the IEPs that were implemented for [Student]. They are complete and according to testimony were completed with a give-and-take attitude that provided for an educational benefit for [Student]. [Student]'s parents were described as exceptionally participatory in the development of [Student]'s educational program. [Mother], in fact, offered her own statement of [Student]’s strengths and concerns in his 1999-2000 IEP that was later rejected by the parents. Except for the 1999-2000 IEP completed on June 1, 1999 anticipating [Student]'s eighth grade year, the IEPs were accepted by [Student]'s parents and modified as necessary.

Specifically, [Student]'s parents wanted more specificity in the 1999-2000 IEP, where the school district would enumerate the time and method of direct instruction for [Student]. However, educational methodology is not a necessary element of an IEP as determined in Lachman v. Illinois State Bd. of Educ. 852 F.2d 290, (7^th Cir. 1988). The 7^th Circuit specifically said " Rowley and its progeny leave no doubt that parents, no matter how well motivated, do not have a right . . . to compel a school district to provide a specific program or employ a specific methodology in providing for the education of their handicapped child." Lachman v. Illinois State Bd. of Edu. at 297.

The parents wanted to be certain that [Student] would receive the individual attention that Dr. Sater recommended. While it is true that the direct instruction is not labeled in [Student]'s 1999-2000 IEP, testimony revealed that such instruction was planned for [Student] in his special education class and conveyed to his mother. According to her testimony, [Student]'s mother didn't trust her child's teachers to implement this. School personnel were surprised that [Student]'s mother had a problem with the IEP after the June 1, 1999 meeting.

While this breakdown in trust and communication is unfortunate and could have been averted, the fact remains that [Student] had an IEP that was reasonably calculated to provide an educational benefit. It addressed his emotional needs and provided for language instruction in his special education class. While the parents were well motivated, their claim that the [Unnamed] School District’s failure to enumerate the educational methodology poisoned the IEP and its process is not well grounded.

While not immaculately conceived given the lack of communication and trust in the process, any faults of the 1999-2000 IEP do not implicate a denial of FAPE.

School Safety

[Student]'s parents allege that the [City] Middle School is an unsafe place and that a new placement is needed.

There is no doubt that [Student] did not feel safe going to the [City] Middle School. One of the characteristics of an emotionally disturbed disability is to have a tendency to develop physical symptoms or fears associated with school problems, 24 CFR 300.7(c)(4)(i)(E). Given [Student]'s depression, his fear of school might have been expected. [Student]'s private psychologist, Dr. Alison Einbender, noted in a September 1, 1999 letter that "[Student] experiences school as an unsafe and dangerous place to be." She recommended an alternative placement as well.

What is not offered is compelling evidence that the [Unnamed] School District offered an unsafe educational environment. Several instances were recounted with [Student]'s personal conflict with another special education student, an incident where he alleged a teacher slapped him in the back of his neck (she refuted this incident), and a playground incident where [Student] was injured. All this testimony is from a child that plays cornerback on the local tackle football team. There were no corroborating witnesses to [Student]’s testimony.

After weighing the credibility of [Student] in his testimony and the circumstances around these incidents and his emotional depression, it is determined that the [City] Middle School is a safe environment. Even taking the evidence in [Student]'s most favorable light, there is no sustained harassment in this middle school environment of the kind that would warrant a finding of an unsafe school.

[Student] still may believe that [City] is an unsafe middle school and [Student]'s parents may believe a private school placement is better for their son for many educational, spiritual, social and security reasons. But under IDEA, public schools are required to provide a "basic floor of opportunity" through identification and evaluation of handicapped children "and to provide them with access to a free and appropriate public education". See Hendrick Hudson Bd. of Ed. v. Rowley, 458 U.S. 176, at 200. The [Unnamed] School District met its burden and provided a floor of opportunity and access to FAPE to [Student] and his parents.

The US Supreme Court has also held that parents may obtain reimbursement for private school tuition if the placement offered by the school district is (1) inappropriate, (2) the private placement selected by the parents is appropriate, and (3) equitable considerations support the parents claim. Bd of Ed. of LaGrange School Dist. No. 105 v. Ill. State Bd. of Education, et.al. 30 IDELR 891 (7^th Cir. July 29, 1999) citing Florence County Sch. V. Carter, 510 US 7, 15.

To provide for a publicly funded private school placement would require the [Unnamed] School District to have failed in any one of the areas that the [family]s have alleged problems – to have provided an inappropriate educational placement. But this cannot be found.

A determination of the suitability of the Holy Cross Lutheran School as an alternative placement is not reached here. While little evidence was offered of its suitability other than class size, the fact remains that the [Unnamed] School District has not denied FAPE and any weighing of an alternative would be inappropriate and contrary to the intent of Florence County Sch. V. Carter.

1. The [Unnamed] School District is the prevailing party.
2. The [Unnamed] School District provided a free and appropriate public education to [Student] from his referral to special education in January 1997 until his unilateral removal on August 26, 1999.
3. The [City] Middle School is a safe environment for education.
4. The [City] Middle School staff was uniformly professional and responsive to the special education needs of [Student].

IT IS HEREBY ORDERED, that the due process hearing request by [Student] be dismissed with prejudice.

Dated at Madison, Wisconsin, this 1^ST day of November, 1999.