Preview:

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ERIC VINCENT,
as the parent of B.V.,
Plaintiff,
v.                                                                                           Case No. 10-C-0022
KENOSHA UNIFIED SCHOOL DISTRICT,
Defendant.
KENOSHA UNIFIED SCHOOL DISTRICT,
Plaintiff,
v.                                                                                           Case No. 10-C-0049
B.V., by and through her Parents,
ERIC AND SARAH V.,
Defendants.
ORDER DENYING ERIC VINCENT’S MOTION FOR SUMMARY JUDGMENT,
DENYING IN PART KENOSHA UNIFIED SCHOOL DISTRICT’S MOTION FOR
SUMMARY JUDGMENT, AND SETTING A STATUS CONFERENCE
In consolidated cross-appeals, Eric Vincent, the father of minor child BV, and
Kenosha Unified School District (“KUSD”) seek federal judicial review of the December 4,
2009, decision of the state administrative law judge employed by Wisconsin’s Department
of  Public Instruction                                                                       (“DPI”).    Because  of  BV’s disabilities,  BV  is  protected  by the
Individuals with Disabilities Education Improvement Act (“IDEA”), 20 U.S.C. §1400 et seq.,
and Wisconsin state special education law, Wis. Stat. Ch. 115.   The ALJ found that,
although BV’s Individualized Education Plan (“IEP”) was appropriate,  KUSD deprived BV
of a free appropriate public education (“FAPE”) when it instructed BV to remain off campus




between September 30, 2008, and May 11, 2009, during its reevaluation of BV’s behavioral
problems.  In addition, the ALJ found that KUSD’s unilateral decision to extend the time to
reevaluate BV was a procedural violation of state law not barred by equitable estoppel.
Finally, the ALJ determined that BV was entitled to 24 hours of compensatory education
time to make up for the education not provided between September 30, 2008, and January
10, 2009, and four hours for each school day between January 11, 2009, and May 11,
2009.   The ALJ denied the motion for reconsideration.                                         (Record, Order on Motion for
Reconsideration.)
This court consolidated the two appeals filed by the parties pursuant to 20 U.S.C.
§ 1415 and 34 C.F.R. § 300.512.  The consolidated cases come before this court on cross
motions for summary judgment.  Vincent believes that the ALJ made “fair legal conclusions
to remedy” the injustice but maintains that two of the legal conclusions are not supported
by the evidence in the record or the legal standards set forth in the IDEA.   First, Vincent
argues that the ALJ erred when he found that KUSD’s initial IEP on September 10, 2008,
was substantively appropriate under the requirements of the IDEA and its implementing
regulations.  Second, Vincent challenges the ALJ’s calculation of how much compensatory
education BV was entitled to as a remedy for KUSD’s failure to provide FAPE.
KUSD does not appeal the finding that it committed two procedural errors.  Instead,
it appeals the compensatory education order.   Specifically, KUSD challenges the ALJ’s
finding that the procedural violation caused substantive harm and that compensatory
damages are available to remedy a purely procedural violation.  In addition, KUSD asserts
that there is no evidence in the record to support a finding of what compensatory education
is appropriate or how much compensatory education is appropriate.   For the reasons
2




below, the cross motions for summary judgment are denied in part, the ALJ’s decision
affirmed  in  part, and  the  court  will conduct a  status conference  to discuss  further
proceedings consistent with this decision.
STATEMENT OF FACTS
The court finds no bases for the parties’ vehement disagreement regarding their
respective proposed findings of fact because summary judgment in the context of an IDEA
case has a different meaning than it does in a Rule 56 case.   Here, review is dictated by
the unique standards of the IDEA, 20 U.S.C. § 1415(i)(2).   On issues of law, the hearing
officer is entitled to no deference.  Alex R., ex rel. Beth R. v. Forrestville Valley Community
Unit School Dist. No. 221, 375 F.3d 603, 612, (7th Cir. 2004.)   The court receives and
affords due weight to the ALJ’s findings of fact.   Id.
BV is a minor child, who previously lived in Alabama, and established residency in
Kenosha Unified School District on July 31, 2008.                                                 (ALJ ¶ 1, KUSD Hrg. Ex. 101 at 9.)
Since the second or third grade, BV has had increasing behavioral disruptions.   (ALJ ¶¶
2-3; Tr. at 15-18.)  These behaviors include visual/auditory hallucinations, assaultive/biting
behavior, and low frustration tolerance.   (ALJ ¶ 11, KUSD Ex. 101 at 103.)  She has been
physically aggressive towards teachers, and has bitten herself.                                   (ALJ ¶ 24, Tr. at 432.)
Information presented to KUSD prior to her enrollment included that she bit, scratched, and
banged her head. (KUSD Hrg. Ex. 101 at 286.)
In September 2005, a diagnosis indicated childhood schizophrenia.   (ALJ ¶ 3.)  In
January 2006, potential diagnoses were posited, including schizophrenia and Psychotic
Disorder NOS.   (ALJ ¶ 4.)  In June 2006, a diagnosis concluded Psychotic Disorder NOS
and Communication Disorder NOS.   (ALJ ¶ 7.)   A September 2008 diagnosis indicated
3




Childhood Disintegrative Disorder, Disruptive Behavior Disorder NOS, but ruled out
Psychotic Disorder NOS.   (ALJ ¶ 15.1)   A December 2008 diagnosis indicated Psychotic
Disorder NOS, but ruled out Childhood Disintegrative Disorder and schizophrenia.   (ALJ
¶ 15.2)  Regardless of the diagnosis, there is no dispute that BV is disabled, and is prone
to random aggressive tendencies including hitting and scratching those persons within her
proximity as a manifestation of her disability.
From June 2006 through July 2008, BV resided for two years at Alabama’s Laurel
Oaks Behavioral Health Center pursuant to court order initiated by an Alabama child
welfare agency.                                                                                   (ALJ ¶ 6, 8, Tr. at 19-20, 42.)   While there, BV attended New Day
Academy, but stayed on the grounds of Laurel Oaks “on most if not all school days” due
to safety concerns.   (ALJ ¶ 10, KUSD Hrg. Ex. at 120.)
The day after Laurel Oaks released BV into the custody of her parents, BV moved
to Kenosha, Wisconsin.                                                                            (ALJ ¶¶ 1, 12, Tr. at 21.)   The transition from her residency at
Laurel Oaks to her residency with her parents was marked by severe mood swings, bizarre
behavior,  and  incidents  where  she  became  physically  aggressive  without  apparent
provocation or reason.  (ALJ ¶ 13, Tr. at 47-48.)  Soon after her arrival in Kenosha, BV had
an episode that caused her parents to take her to the St. Catherine’s emergency room
voluntarily.                                                                                      (ALJ ¶ 13, Tr. at 22.)   On the recommendation of the emergency room staff,
BV’s parents caused BV to be admitted to the Winnebago State Mental Health Institute
until August 6, 2008.   (ALJ ¶ 13.)
1
Though the ALJ cites to the KUSD Hrg. Ex. 101, the pages to which he cites are missing from our
record.
2
Missing cites, see fn. 2.
4




On or about August 21, 2008, BV’s parents contacted KUSD and stated their intent
to enroll BV for the 2008-2009 academic year.   (ALJ ¶ 14.)   KUSD advised BV’s parents
on August 26, 2008, to visit the district offices to register BV.  (ALJ ¶ 14.)  Due to additional
behavioral episodes, BV was hospitalized at Children’s Hospital of Wisconsin from August
28 until September 2, 2008.   (ALJ ¶ 15.3)
KUSD convened the first IEP team meeting for BV on September 10, 2008, to
develop an IEP for the 2008-2009 academic year.                                                     (ALJ ¶ 17.)   In addition to KUSD
personnel, BV’s parents and two representatives from DCFS contractor Families First
attended.                                                                                           (ALJ ¶ 16, 17.)   The IEP team reviewed records from New Day Academy,
including the IEP created by New Day Academy (“New Day IEP”).   (ALJ ¶ 17, Tr. at 328,
359.)   This IEP was not adopted by KUSD primarily because of the limited academic
functioning information available to KUSD.  (Id.)  At least some of the IEP team considered
the information to include assessments from BV’s past that were inapplicable to her in
September 2008.   (Tr. at 359.)   Indeed, her September IEP indicated that her “last IEP
evaluation is past due and she needs a complete IEP evaluation to determine her
academic and behavioral needs.”                                                                     (KUSD Hrg. Ex. 101 at 293.)   The entirety of the
September IEP’s discussion of BV’s academic functioning includes:
[BV’s] academic skills are unclear at this time.   Laurel Oaks residential
treatment facility (New Day Academy) reported that [BV’s] performance in
school was minimal due to behavioral issues.  Parents report [BV] can read
and write but it is unclear at what levels.   Alabama’s Alternate Assessment
completed in Spring of 2008 reports Reading achievement did not meet
standards, while [in] mathematics she met partical standards.   In Science,
[BV] met partical standards.   Staff members at New Day Academy, believe
[BV] has more academic skills and knowledge than she demonstrates.
3
Missing underlying cites - see FN 2.
5




(KUSD Hrg. Ex. 101 at 184.)
The IEP team decided that BV needed to be re-evaluated to better understand her
current needs.                                                                                    (KUSD Hrg. Ex. 101 at 185.4)   In lieu of a more comprehensive IEP, the
IEP developed on September 10, 2008, (“September IEP”) focused on BV’s behavioral
problems.   (ALJ ¶ 19, KUSD Hrg. Ex. 101 at 185.)   There was only one annual goal: BV
“will reduce acting out physically and/or verbally when given direction or during transition
times to no more than 2 incidents per hour.”                                                      (ALJ ¶ 19, KUSD Hrg. Ex. 101 at 287.)
Recognizing that the behavior impaired BV’s learning and the learning of others, the team
included  a  positive  behavior  intervention,  indicating  that  they  would                     “keep  work
expectations short  and manageable  to avoid  frustration.  [They would  also p]rovide
reinforcement after completed expectation.”   (ALJ ¶ 20, KUSD Hrg. Ex. 101 at 287.)   No
behavioral plan was developed, but the IEP contemplated further behavioral observation
and evaluation, indicating: “Other assessment to be developed after evaluation of her
needs and observation.”   (ALJ ¶ 20, KUSD Hrg. Ex. 101 at 287.)
The IEP provided that BV was to receive education two days per week for one hour
each day after school hours but in a “school setting.”                                            (ALJ ¶ 21, KUSD Hrg. Ex. 101 at
290.)  Even though the services were to be provided in a school setting, the IEP indicated
the nature of the services as “homebound” because they would be delivered after school
hours when no other children were present.                                                        (ALJ ¶ 21; KUSD Hrg. Ex. 101 290.)   The
homebound instruction allowed BV to be supervised more closely as KUSD believed this
was necessary in light of BV’s perceived aggressive behaviors that presented safety
4
Note that the IEPs appear multiple times in the 309 page single exhibit provided by KUSD at the
hearing.   Though page numbers may differ, they are the same documents.
6




concerns.   (ALJ ¶ 18, Ex. 101, p. 293.)  The IEP noted explicitly that a placement in a self-
contained class had been considered and rejected because BV’s aggressive behaviors
presented safety concerns.                                                                       (ALJ ¶ 21, KUSD Hrg. Ex. 101 at 293.)   Despite private
concerns, BV’s parents consented to homebound instruction on September 16, 2008.
(ALJ ¶ 18; KUSD Hrg. Ex. 101 at 159.)
The IEP expressed the view that the behavioral-focused IEP would allow BV to ease
into a new environment after having been in a residential treatment facility for the prior two
academic years.   (ALJ ¶ 22, KUSD Hrg. Ex. 101 at 293, Tr. 85-86.)  It contemplated that
the IEP team would reconvene to develop additional annual goals and increase the amount
of services.   (ALJ ¶ 22; Tr. at 86, 329-330.)  The consensus of the IEP team was that two
hours of weekly special education was an appropriate level at which to begin providing
services.   (ALJ ¶ 22.)  No member of the IEP team articulated an opposing view, although
BV’s parents held privately the opinions that the level of services was insufficient, and that
the homebound environment was inappropriate.  (ALJ ¶ 22.)    The parents appear to have
expressed these opinions to KUSD for the first time during litigation.  (ALJ ¶ 18, KUSD Hrg.
Ex. 101 at 159.)
Included in the IEP were speech and language therapy services of 30 minutes once
a month to be provided in a school setting.   (ALJ ¶ 21, KUSD Hrg. Ex. 101 at 290.)   The
IEP was scheduled to begin September 22, 2008.   (ALJ ¶ 21, Ex. 101, p. 290.)
Those services commenced on September 22, 2008, as planned.   (ALJ ¶ 23.)  BV
performed well on that day, and had no incident of aggressive behavior.                          (ALJ ¶ 23.)
However, on September 29, 2008, KUSD provided services to BV again.                              (ALJ ¶ 24.)
There was a behavioral episode during which BV was physically aggressive towards her
7




teacher and bit herself.                                                                     (ALJ ¶ 24; T. 432.)   BV’s father and two KUSD staff members
restrained her until she calmed down.  (Id.)  The episode lasted approximately 10 minutes.
(ALJ ¶ 24.)
The teacher who had instructed BV on September  22 and  29 expressed his
concerns to KUSD about continuing to provide services to BV because of safety concerns.
(ALJ ¶ 25.)   A KUSD administrator then contacted a second teacher, who expressed
reluctance to serve BV.   (ALJ ¶ 25.)  KUSD stopped asking teachers, and informed BV’s
parents that KUSD was discontinuing services to BV.                                          (ALJ ¶ 25; Tr. at 52.)   No further
services were rendered by KUSD to BV either in school or at home.                            (ALJ ¶ 25.)   On
October 13, 2008, KUSD requested by letter the consent of BV’s mother to conduct a re-
evaluation of BV.   (ALJ ¶ 26; KUSD Hrg. Ex. 101 at 228.)
After September 2008, BV’s parents pursued several options to finding her suitable
education.  These included a visit accompanied by KUSD staff to Hillcrest School, on the
recommendation of KUSD.                                                                      (ALJ  ¶  27.)    Though Hillcrest is an alternative special
education  school,  KUSD  and  BV’s  parents  agreed  that  Hillcrest  would  not  be  an
appropriate placement for BV.   (ALJ ¶ 27; Tr. at 96.)
Children’s Behavioral Health Services (CBHS) started in-home services for BV.
(ALJ ¶ 28.)   CBHS is a community based agency focusing on children with autism.   (Id.)
By November 2008, CBHS provided approximately forty hours of service every week,
generally every business day that BV was at home.   (ALJ ¶ 28; Tr. at 157.)  The services
focused on BV’s behavioral, interactive, and communicative skill deficits. (Id.) CBHS
therapists  observed  that  BV  experienced  one  behavioral  episode  a  week  through
December 2008, occurring randomly or without provocation.   (ALJ ¶ 29; Vincent Hrg. Ex.
8




5 at 3; Tr. at 192.)   BV’s mother informed CBHS staff that BV experienced an additional
3-4 episodes each week when CBHS staff were not present.   (ALJ ¶ 29; Vincent Hrg. Ex.
5 at 3.)   From mid-January to May 2009, CBHS staff noticed a general decrease in
behavioral episodes, with the exceptions of increases in early January and April. (ALJ ¶ 29;
KUSD Hrg. Ex. 101 at 151, Vincent Hrg. Ex. 5 at 10, 13.)
On November 4, 2008, representatives of the Kenosha County DCFS (“KC DCFS”)
offered their assistance in filing a voluntary petition for child protective services, which
could have resulted in BV being institutionalized outside the district.  (ALJ ¶ 30; KUSD Hrg.
Ex. 101 at 148-9.)  BV’s parents declined the offer in December 2008.   (ALJ ¶ 30; Tr. 260-
261.)
On November 11, 2008, BV’s mother provided written consent for KUSD to re-
evaluate BV.   (ALJ ¶ 31; KUSD Hrg. Ex. 101 at 230.)  By mailing this notice, state statutes
required that KUSD complete the evaluation within 60 days, i.e., January 10, 2009.   (ALJ
¶ 30; KUSD Hrg. Ex. 101 at 180.)
On November 14, 2008, BV’s mother informed representatives of KC DCFS that BV
was a candidate for a study at the National Institute of Health in Maryland.                    (ALJ ¶ 32;
KUSD Hrg. Ex. 101 at 149.)  BV’s father also informed KUSD of the same, but noted that
BV’s acceptance was not a certainty and that she could return at any time.   (ALJ ¶ 32; Tr.
at 296.)  Indeed, she did return after she was not accepted.  (ALJ ¶ 33; KUSD Hrg. Ex. 101
at 149.)  BV’s parents notified KUSD staff of her return on the day she arrived, December
4, 2008.   (ALJ ¶ 33; KUSD Hrg. Ex. 101 at 149.)
9




On January 7, 2008, KUSD staff met with Families First and CBHS, and was
advised of the status of services being provided to BV and her progress.  (ALJ ¶ 34; KUSD
Hrg. Ex. 101 at 149.)   KUSD decided to proceed with BV’s re-evaluation.   (Id.)
On January 8, 2008, KUSD sent a letter to BV’s parents stating that KUSD “had not
been able to complete the evaluation due to the unavailability of [BV] for testing.”   (ALJ ¶
35; KUSD Hrg. Ex. 101 at 233.)   Additionally, KUSD wanted “to begin the assessment
process” two days before the January 10 deadline passed, and informed BV’s parents that
KUSD  “will  be  extending  the  original  timeline  for  completion  of  the  evaluation.”
(Id.)(emphasis added).   The letter did not seek the consent of BV’s parents, and BV’s
parents did not communicate consent or objection to the letter.                                 (Id.)   Though BV was
unavailable at times, the record is devoid of any evidence that KUSD affirmatively
attempted to schedule any evaluations with BV during the 60 day timeline.                       (See, e.g.,
KUSD’s Response to Due Process Hearing Complaint, KUSD Hrg. Ex. 101 at 144; see
also Summary of Service Minutes Provided to [BV], KUSD Hrg. Ex. 101 at 153-158.)
KUSD began holding meetings to plan for the re-evaluation of BV, including a
January 19 meeting with BV’s parents and an internal January 27 meeting.                        (ALJ ¶ 36;
KUSD Hrg. Ex. 101 at 149, 153.)   Throughout the spring, CBHS therapists provided
therapy and sporadic but increasing academic instruction in math, reading, and language.
(ALJ ¶ 37.)  KUSD staff conducted testing between February and March 2009 (ALJ ¶ 37),
and also advised CBHS therapists on the use of particular academic materials starting in
April 2009 though the materials had been provided in March 2009 (ALJ ¶ 37; Tr. 175; Ex
5, pp10-16; Tr. 176).  Though a normal evaluation team consisted of around three to four
people, this evaluation team consisted of seventeen to eighteen.   (Tr. at 368.)
10




On March  3,  2009, BV presented as an outpatient to the Waisman Center in
Madison, Wisconsin, for evaluation.   (ALJ ¶ 38; KUSD Hrg. Ex. 101 at 150.)   She had a
follow-up appointment on April 7, 2009.   (Id.)   Though KUSD expected information to be
provided to the district on April 8 (ALJ ¶ 38), the information provided to the parents as a
result of this evaluation was never provided to KUSD. (ALJ ¶ 40; Tr. at 370-371.)
On April 13, 2009, BV presented to the Mayo Clinic in Minnesota for evaluation.
(ALJ ¶ 39.)   She was admitted on April 20, 2009, and released on May 8, 2009.                 (ALJ
¶ 39.)   The information provided to the parents as a result of this evaluation was never
provided to KUSD.   (ALJ ¶ 40; Tr. 300-301.)
Initially, KUSD planned an IEP meeting for April 2, 2009, but rescheduled it to May
11, 2009.   (ALJ ¶ 39.)   The meeting included twelve KUSD staff, both parents, a parent-
advocate, a Families First representative, and BV’s senior therapist from CBHS.  (ALJ ¶ 40,
KUSD Hrg. Ex. 101 at 236, 249.)   BV’s parents did not provide the reports from the
Waisman Center or the Mayo Clinic at this final hour because, according to the parents,
the reports did not generate new, useful information.                                          (ALJ ¶ 40; Tr. 300-301.)
The IEP developed on May 11, 2009, (“May IEP”) contained twelve annual goals in
nine subject areas.                                                                            (ALJ ¶ 41, KUSD Hrg. Ex. 101 at 253-254.)   It acclimated BV to the
school, requiring for the first two days, two hours of instruction; three hours for the next
three days; then four hours for every day thereafter.                                          (ALJ ¶ 41; KUSD Hrg. Ex. 101 at
256.)   Moreover, the IEP required BV to attend Lance Middle School.   (ALJ ¶ 41, KUSD
Hrg. Ex. 101 at 260.)
The IEP adopted positive behavior interventions with certain approaches and
training of KUSD staff in recognition that BV’s behavior impeded her learning and the
11




learning of others.   (ALJ ¶ 42, KUSD Hrg. Ex. 101 at 252.)  For example, the IEP required
teachers to “keep work expectations short and manageable to reduce frustration” and to
“provide reinforcement after completed expectation.”                                           (ALJ ¶ 42, KUSD Hrg. Ex. 101 at
252.)   Additionally, staff working with BV were to “be trained in behavior management
strategies to support [BV] when her behavior becomes aggressive to keep others from
being injured.”                                                                                (ALJ ¶ 42, KUSD Hrg. Ex. 101 at 252.)
Though the IEP indicated that a behavioral intervention plan (“BIP”) was attached,
the IEP team did not develop the BIP on May 11.   (ALJ ¶ 43, KUSD Hrg. Ex. 101 at 252.)
A meeting focused on developing further information regarding BV’s behaviors and
effective responses was held on May 13, 2009.                                                  (ALJ ¶ 43; KUSD Hrg. Ex. 101 at 152,
156.)  Additionally, on May 27, 2009, a KUSD staff member and BV’s mother telephonically
developed a functional behavioral assessment (“FBA”) and a BIP.   (ALJ ¶ 44; Tr. 66-67.)
The KUSD staff member advised BV’s mother that the FBA/BIP could be reviewed on June
2, 2009, when an IEP review meeting was scheduled.   (ALJ ¶ 44.)   The completed FBA
and BIP were added to the IEP and mailed to BV’s parents on May 29, 2009.   (ALJ ¶ 44;
Ex 101, pp 281-283.)  The IEP was implemented on May 14, 2009, through the rest of the
2008-2009 school year.   (ALJ ¶ 45.)
The ALJ found the following: The September IEP was substantively appropriate.
(Op. at 17.)  KUSD denied BV a FAPE from September 30, 2008, until May 13, 2009, by
failing to provide any educational services.  (Id.)  KUSD’s four month extension to complete
the re-evaluation was a procedural violation that denied BV a FAPE by causing a
deprivation of education benefits pursuant, in part, to Wis. Stat. § 115.80(5)(c).             (Id.)
KUSD did not violate special education laws when it developed the FBA or BIP in May
12




2009.                                                                                          (Id.)   BV’s request for compensatory education is not barred by the doctrine of
equitable estoppel.  (Id.)  Placement of BV in a private school for one academic year is not
necessary to compensate BV for the denial of FAPE from September 20, 2009, until May
13, 2009.  (Id.)  BV is entitled to 24 hours of compensatory services for the denial of FAPE
from September 30, 2009, until January 10, 2009.                                               (Id.)   Additionally, BV is entitled to
compensatory services for each school day from January 11, 2009, until May 13, 2009.
(Id.)
CONCLUSIONS OF LAW
In reviewing the parties’ cross motions, the court has combined and arranged the
arguments of the parties in the following order: (1) whether the ALJ erred as a matter of
law when he found that the IEP was substantively appropriate; (2) whether the ALJ erred
as a matter of law when he found that BV suffered a substantive harm; (3) whether the ALJ
erred as a matter of law when he found that Vincent was not equitably estopped from
obtaining relief; and (4) whether the ALJ erred or abused his discretion when he calculated
the compensatory award.
First, Vincent argues that the ALJ erred in finding that the September IEP was
substantively appropriate.   Specifically, the solitary behavioral goal, pursuant to which
instruction was provided after other students had been dismissed from school, violates the
IDEA because the September IEP did not provide a de minimus educational benefit to BV.
Vincent notes that the IEP failed to address other subjects, assessments, and classroom
instruction as required by the IDEA, including participation in the Wisconsin Alternative
Assessment of Students with Disabilities, and the behavioral goal was so insufficient that
it was met on the first day that BV attended school, September 22, 2008.
13




Whether an IEP is substantively appropriate is a question of fact.   Alex R. at 615.
An IEP is valid when it complies with the procedures set forth by the IDEA and is
reasonably calculated to enable the child to receive educational benefits.   Id. at 613.   An
IEP is reasonably calculated to enable the child to receive educational benefits where the
IEP is likely to produce progress.   Id. (internal citations omitted.)   Pursuant to the IDEA,
courts must permit local educators wide latitude in developing an appropriate IEP, and
local educators may exercise their professional judgment.  Id.   (internal citations omitted.)
Additionally, adopting First, Second, Third, Fourth, Ninth, and Tenth Circuit law, an IEP
must “take into account what was, and was not, objectively reasonable when the snapshot
was taken, that is, at the time the IEP was promulgated.” 5Roland M. v. Concord Sch.
Comm., 910 F.2d 983, 992 (1st Cir.1990).  Finally, a motion for summary judgment will be
denied where a party with the burden of presenting evidence fails to establish that the
limited goals of the IEP could not provide an educational benefit to the child.  Hjortness ex
rel. Hjortness v. Neenah Joint School Dist.  507 F.3d 1060, 1065 (7th Cir. 2007).  Hjortness
instructs that the issue is not whether the IEP could have provided significantly more
educational benefit, but whether the existing IEP did not provide a de minimus benefit.  Id.
5
Roland M. appears to be the case that created the “snapshot rule.”  The following cases in the courts
of appeal reference Roland M .: D .F. ex rel. N.F. v. Ramapo Cent. School Dist., 430 F .3d 595, 599 (2nd Cir.
2005); Fuhrmann v. East Hanover Bd. of Educ., 993 F.2d 1031, 1040 (3d Cir.1993); M .S. ex rel. Simchick v.
Fairfax County School Bd., 553 F.3d 315, 326 (4th Cir. 2009); Adams v. State of Oregon, 195 F.3d 1141,1149
(9th Cir. 1999); O'Toole By and Through O'Toole v. Olathe Dist. Schools Unified School Dist. No. 233, 144
F.3d 692 (10th Cir. 1998).   Roland M. or its progeny in other circuits has also been adopted by the Northern
District of Indiana in Roy and Anne A. v. Valparaiso Community Schools, 951 F. Supp. 1370, (N .D . Ind. 1997)
and by a judge in the Eastern District of W isconsin in Suzawith v. Green Bay Area School Dist., 132 F . Supp.
2d 718 (E.D. W is.                                                                                               2000). These cases have not been overturned.
14




The ALJ found that KUSD decided suitably that the New Day IEP provided
insufficient information to develop an appropriate IEP for BV on September 10, 2008.  6His
finding of fact number 17 noted that the New Day IEP lacked information related to BV’s
current academic functioning.  Indeed, the September IEP indicated that the IEP team was
unclear as to the particular academic abilities of BV.   Further, it recognized that the New
Day IEP and information from Laurel Oaks did not provide the KUSD IEP team with data
sufficient to create a comprehensive IEP.  Admittedly, whether a student sat in a classroom
on a particular number of days and was taught certain topics bear no indication of the
student’s retention, academic ability, or appropriate placement at any particular grade level.
As the ALJ reasoned, KUSD only had two weeks to gather information concerning
BV prior to the IEP team meeting on September 10.                                                                        (Op at 10.)   The ALJ reviewed
everything that KUSD was aware of during the September IEP meeting, including: (1) BV
had not attended a public school for the previous two and a half years, but had been in a
private residential treatment facility in Alabama  (Op. at  11);  (2) BV received scant
educational services pursuant to the IEPs because of behavioral episodes                                                 (Op. at 11);
(3) BV’s behaviors caused injuries to herself and others  (Op. at  11); and  (4) since
establishing residency in Wisconsin, BV had been admitted to two different hospitals.7
(Op. at 11.)   He relied heavily on the IEP team’s conclusion that further evaluation was
6
Perhaps Vincent asks the court to infer that attendance for 65% of the year and a graduation to the
next grade level indicate a particular proficiency that is (a) standard at least between Alabama and W isconsin
or (b) concrete enough to develop an IEP.   There are numerous problems with this possible logic, not least
of which is that the court will not infer the very issue in dispute.   Additionally, for an individual plan to account
for  particular  subjects,  KUSD  needed  particular  information  not  provided  by  general  grade  levels  and
attendance records.
7
She  was  actually  admitted  to  two  different  hospitals  for  mental  health  concerns,  and  the  St.
Catherine’s emergency room for physical injuries.  The court assumes that the ALJ refers to W innebago and
Children’s Hospital, but not St. Catherine’s emergency room .   In any case, correcting this problem does not
favor Vincent’s argument.
15




necessary to assess BV accurately, and that BV needed a “slow and well-thought out
transition to a public school setting.”   Id.
Vincent does not suggest how the September IEP did not provide BV with a de
minimus educational benefit.   The limited snapshot of BV’s academic functioning, the
pressing need to acclimatize BV to her new environment to prevent class disruptions and
physical injury, and the time limitations contemplated by the September IEP, all combine
to show that the September IEP could have provided educational benefit to BV from
September  2008  until  January  2009  by  teaching  her  to  function  within  a  school
environment without disrupting her learning, or the learning of her future classmates.
Rather than confront this educational benefit, Vincent argues only that KUSD’s IEP could
have provided more than trivial education to BV and was substantively inappropriate.  This
argument ignores the limited time in which the September IEP was supposed to be in
effect.
Vincent also makes passing reference to the “single behavioral goal [that] was
worded, ‘[B.V.] will reduce acting out physically and/or verbally when given direction or
during transition times to no more than 2 incidents per hour.’”  This contention ignores that
the goal was designed generally to reduce significant behavioral issues that manifested on
the second day that BV received educational services.  Indeed, the passing mention of the
actual requirement indicates that Vincent does not even find merit in the contention that
reduction of BV’s behavioral problems was a goal.    Nevertheless, Vincent does not
challenge any of the ALJ’s findings of fact indicating that the September IEP attempted to
decrease BV’s behavioral problems.
16




Considering BV’s violent tendencies, her new exposure to Wisconsin, her school,
her parents, her teachers, and her therapists after a two year residency at Laurel Oaks in
Alabama, Vincent has not established that the IEP could not provide BV a significant
educational benefit by acclimatizing her to her new environment and new people during the
fall of 2008.   Certainly, if the September IEP had contemplated permanency, Vincent’s
arguments would have been more convincing because BV would have satisfied the goal
at some point.  However, as argued, Vincent does not confront the educational benefit that
BV could have received had she been provided services pursuant to the September IEP.
The ALJ noted that limited IEPs, such as the September IEP, were rare, but
concluded on the facts before him that the September IEP was reasonable.   Id.   Thus,
Vincent has failed to convince the court that the ALJ’s decision was in error by a
preponderance of the evidence.  Affording the ALJ’s finding of fact due weight to which the
decision is entitled, the decision is unassailable.
Next, KUSD maintains that the ALJ erred when he found that BV suffered a
substantive harm.  KUSD admits to two procedural failures: KUSD stopped providing BV
with education two hours each week and did not reevaluate BV in a timely manner.
However, KUSD submits that BV was not prepared to start school until May 14, relying
primarily on the non-expert testimony of Families First supervisor Deb McGrain who
interacted with BV and her parents.   Moreover, KUSD argues that BV would not have
attended school until May 14 even with a procedurally effective IEP.  Although KUSD does
not refer to its actions as a suspension of BV, in effect, it contends that BV’s behavioral
problems permitted it to suspend BV until she was prepared to return to school.
17




The IDEA provides that a free appropriate public education must be “available to all
children with disabilities residing in the State between the ages of 3 and 21, inclusive,
including children with disabilities who have been suspended or expelled from school.”
20 U.S.C. § 1412(a)(1)(A)(emphasis added).   Additionally, the IDEA requires the school
district to work with the parents of the disabled child to determine  “what is uniquely
appropriate for every child” by preparing an IEP.   Id.
Despite these entitlements, disabled children may be suspended for behaviors that
are manifestations of the disability.   Specifically, 20 U.S.C. § 1415 (2005) provides that
school officials may consider ordering a change in placement of a child on a case-by-case
basis.   Id. at 1415(k)(1)(A).   However, school administration may only order the removal
a disabled child from their placement for a maximum of ten days.  Id. at 1415(k)(1)(B).  The
school administration has those ten days to determine whether a behavior that caused the
suspension is a manifestation of the disability.   Id. at 1415(k)(1)(E).  Where a behavior is
determined to be a manifestation of the disability, the IEP team shall either (1) create a BIP
and return the child to her placement,  (2) modify a BIP and return the child to her
placement, or (3) modify the placement of the child with the consent of the parents.  Id. at
1415(k)(1)(F).
Even in severe cases, the disabled child must be returned to her placement.
Indeed, where a disabled child brings a dangerous weapon on campus, knowingly uses
or sells controlled substances on campus, or inflicts severe bodily injury on another while
on campus, the school may suspend the disabled child for a maximum of 45 days.  Id. at
1415(k)(1)(G).   But even in these extreme circumstances, the IDEA contains “stay put”
18




provisions that require that the child stay in her placement pending appeal.    Id. at
1415(k)(4).
The  ALJ  wrote  that  a  “special  needs  child  who  is  not  provided  services  in
accordance with an IEP is, by definition, denied a FAPE.”   (Op. at 13, citations omitted.)
Though stated quite simply, the ALJ’s reasoning was quite clear and without error.  In light
of KUSD’s arguments, this court elaborates the ALJ’s simple argument under the authority
of its de novo review.
KUSD’s  reliance  on  BV’s  preparation  for  school  as  a  cause  to  discontinue
educational services is misplaced.   KUSD never had the authority to order BV to stay off
campus for more than ten days without developing a new IEP.   Even construing BV’s
violent behaviors in the most extreme light possible, she never caused severe bodily injury
to another.  8 Though it is unclear what KUSD believes BV needed to accomplish to
prepare for return to school, that is immaterial; KUSD may not supercede the protections
afforded in accordance with the U.S. Code or its regulations by referencing a student’s
“preparation” or lack thereof.  BV was entitled to be in school receiving a free appropriate
public  education  despite  her  behavioral  problems  pursuant  to  her  effective  and
substantively appropriate IEP.  9However, she was not in school after KUSD unilaterally
informed her that she could not return.   The harm was not the unilateral nature of the
notice or the unilateral nature of the time extension to develop a new IEP, but that BV was
8
Even if she had caused severe bodily harm , KUSD suspended BV for more than 45 days.
9
KUSD ’s argument only really makes sense if the September IEP was not valid.   Certainly, though,
KUSD has argued at length that the September IEP was substantively appropriate.   Implicitly, KUSD also
contends that the September IEP was valid.   Its not clear how KUSD argues that, on the one hand the valid
IEP indicated that BV should be in school, but, on the other, BV was not prepared for school.
19




not in school when she should have been in school pursuant to the terms of a valid IEP
and the protections of federal law.  If KUSD could not provide the services as required by
the IEP, then KUSD could suspend BV for a maximum of ten days to allow for the
consensual development of a new IEP even if that meant placing BV at a more appropriate
school.   Though KUSD had wide discretion to place BV appropriately, the IDEA and a
FAPE require that she had to be placed somewhere.  Escaping the suspension rules of the
IDEA by arguing an ambiguous preparation for school is not a loophole that this court is
willing to create.
The ALJ reasoned that removing BV from school when an IEP indicated that she
should be in school was a substantive harm.   KUSD has failed to establish that this
decision was in error.   Indeed, the preponderance of evidence indicates that BV was
denied a FAPE.
Next, KUSD contends that Vincent is equitably estopped from relief for failure to
object to: (1) KUSD’s notice that BV should not return to school after the incident on
September 29; and (2) KUSD’s notice that BV’s re-evaluation would be extended.   The
doctrine of equitable estoppel bars actions or non-actions where a party induces reliance
by another to the other’s detriment.  Randy A.J. v. Norma I.J., 2004 WI 41, P26, 270 Wis.
2d 384, 677 N.W.2d 630.  However, as educational law is governed by federal and state
statutes, and the application of the doctrine to this case is problematic.
The  United  States  Code  mandates  that  states  create  due  process  hearing
procedures for parents to appeal the decisions of local educational agencies involving
either  proposals  or  refusals  to  initiate  or  change  the  identification,  evaluation,  or
educational placement of a disabled child, or the provision of a free appropriate public
20




education to a disabled child.                                                                   20 U.S.C. § 1415(b)(3).   Notably, § 1415 mandates that
proposals or refusals are independently sufficient to file a complaint.  Id.   While a refusal
contemplates an existing dispute between the parents and school, a simple proposal by
the school contemplates no prior action on behalf of the parents.  Id.  Additionally, § 1415
contains  a  comprehensive  list  of  the  requirements  to  file  a  complaint.                 20  U.S.C.
§  1415(b)(7),  20 U.S.C  §  1415(c).    Nowhere within  §  1415 is a requirement that a
complaint be based on a properly preserved objection by the parents; rather, § 1415
generally indicates that the due process hearing complaint is the objection.
In Wisconsin, statutes are interpreted strictly to accomplish their purpose.  Ervin v.
City of Kenosha,  159 Wis.2d  464,  475,  464 N.W.2d  654  (1991).   Where the strictly
interpreted purposes of statutes conflict with the common law, the legislative intent
prevails.  Id.  Wis. Stat. § 115.80(1)(a)1 provides one year for parents to file due process
claims with the DPI.   Id.   Complying with 20 U.S.C. § 1415, Wis. Stat. § 115.80(1)(a)1
provides in relevant part that the statute of limitations begins when an IEP is initiated or
modified.   Id.   Additionally, § 115.80(2m) set forth procedures for school authorities to
address complaints, as filed with the DPI, before a due process hearing is held.  Id.  Wis.
Stat. § 115.80 repeats the indication of 20 U.S.C. § 1415: the complaint requesting a due
process hearing is the objection.   Id.
Nowhere within 20 U.S.C. § 1415 or Wis. Stat. § 115.80 has the court uncovered
a basis for requiring parents to preserve an objection to an IEP.   Id.   Indeed, such a
requirement imposes a legal sophistication on the parents that is implicitly discounted by
the two statutes.   See, e.g., Wis. Stat. § 115.80(1)(e)(1)(ensuring that parents receive a
21




copy of the procedural safeguards available to them within 10 days of the state agency’s
receipt of a due process hearing request).
The ALJ reviewed this argument by KUSD and found that (1) a parent’s failure to
object to a school district’s action does not deprive the child of the right to FAPE, citing to
Third Circuit law, and (2) the parents’ lawsuit is “objection enough.”   Op. at 17.   This
decision is reviewed de novo.
The purpose and legislative intent of Wis. Stat. § 115.90(1)(a)1 is to give parents
one year to file due process claims with the DPI, even if they did not object previously.  The
application of equitable estoppel in this instance attempts to strip parents of their ability to
file due process claims in direct contravention to Wisconsin statutory law.   BV’s parents
filed their due process hearing with the DPI on June 10, 2009, less than one year after the
September IEP.  (Op. at 1.)  This complied with Wis. Stat. § 115.80(1)(a)1.  Put simply, the
statutory law supplants common law doctrine.  The ALJ did commit error by rejecting this
argument.
The  final  issue  is  whether  the  ALJ’s  compensatory  award  was  appropriate.
Beginning with the assumption that the September IEP was substantively inappropriate,
Vincent asserts that BV should be awarded compensatory education from September 30,
2008, until January 10, 2009, commensurate with a substantively appropriate IEP, and
suggests a calculation based on the May IEP.  Essentially, Vincent seeks to have the May
IEP’s model applied to the entire 2008-09 school year.   However, having found that the
September IEP was substantively appropriate, this argument is moot.
Turning to KUSD’s arguments, the court considers whether (1) a compensatory
award can remedy a procedural harm as a matter of law; (2) Vincent met his burden
22




establishing compensatory damages; and (3) the ALJ abused his discretion when he
determined that  “it was probable” that the proposed January IEP would have been
substantively similar to the May IEP.    Because the court found that BV suffered a
substantive harm, KUSD’s first contention is moot.
Under the IDEA, district courts “shall grant such relief as the court determines is
appropriate.”                                                                                   20 U.S.C. § 1415(i)(2)(C)(III).   Awarding compensatory education “is a
decision that rests in the sound discretion of the district court.”   Brown v. Bartholomew
Consol. School Corp., 442 F.3d 588, 598 (7th Cir. 2006).   However, in the cases that
discuss compensatory awards, the students are not apparently limited in the amount of
time in school that they can handle pursuant to a valid IEP.  See generally, e.g., id., Board
of Educ. of Oak Park v. Nathan R., ex rel. Richard R., 199 F.3d 377 (7th Cir. 2000), and
Linda W. v. Indiana Dept. of Educ., 200 F.3d 504 (7th Cir. 1999).  Here, it is not clear how
the ALJ reasoned that a 1:1 ratio based upon the May IEP is an appropriate measure to
determine what KUSD should have known about BV in January 2009.
KUSD may have used the same number of evaluators or the exact same evaluators
in January as it did in May, but the evaluations would have been done on a different child.
A FAPE in the fall of 2008 would have resulted in two hours of instruction per week.  After
November 2008, BV received extensive CBHS therapy of essentially 40 hours per week,
including academic instruction beginning in February or March 2009.  In total, BV received
an additional four and a half months of this therapy by May 2009 than she would have
received if the IEP meeting had convened in January 2009.    Therefore, it is not clear if BV
would have progressed as far by January 2009 as she did by May 2009.  Additionally, it is
unclear whether the IEP team would have had the same academic information in January
23




2009 as it did in May 2009 because BV’s academic instruction began in February or March
2009.
What is clear is that BV is entitled to 24 hours of compensation for KUSD’s violation
of the September IEP by unilaterally suspending BV, as calculated by the ALJ from
September 30, 2008, until January 10, 2009.   Moreover, BV is entitled to educational
compensation for the period from January 11, 2009, until May 14, 2009, as a result of
KUSD’s unilateral extension of time to reevaluate her in violation of the IDEA.
Questions remain regarding how BV should be compensated for deprivation of her
FAPE during this period.  Although the prospect of further delay is troublesome, the record
is insufficient for this court to make the determination.   Hence, the court will conduct a
status conference to discuss further proceedings consistent with this decision.
IT IS ORDERED that Vincent’s Motion for Summary Judgment is denied.
IT IS FURTHER ORDERED that KUSD’s Motion for Summary Judgment is denied
in part.
IT IS FURTHER ORDERED that the parties appear for a status conference on
October 9, 2012, at 10:00 a.m. in Courtroom 222.
Dated at Milwaukee, Wisconsin, this 26th day of September, 2012.
BY THE COURT
/s/ C. N. Clevert, Jr.
C. N. CLEVERT, JR.
CHIEF U. S. DISTRICT JUDGE
24

Download 26839.pdf

Wisconsin Law