The Parties to this proceeding are:

On June 27, 2000, the Department of Public Instruction received a request for a due process hearing, under Subchapter V, Chapter 115, Wis. Stats., and the federal Individuals with Disabilities Education Act (IDEA), from the attorney for [Father] and [Mother], parents of [Student]. A due process hearing was held on August 1, 14, 15 & 16, 2000. The parties filed post-hearing briefs on August 23, 2000, and responsive briefs on August 25, 2000.

The [Parents]'s seek an order directing placement of their son at Starbuck Middle School. The relief is granted.

1. [Student] (the "Student") was born on [date]. He has resided in Racine, Wisconsin, in a residence served by the Racine Unified School District (the "District") his entire life.
2. The Student has been identified as a "child with a disability" within the meaning of state and federal law. The Student has the congenital disorder spina bifida in the lumbrosacral area of the spine. The resulting paralysis of his legs makes the Student wheelchair-dependent, and he moves about independently with great facility in a non-motorized wheelchair. He is not wheelchair-bound, however, and he can transfer to and from his wheelchair independently for toileting or other purposes.
3. The Student attended West Ridge Elementary School from kindergarten through the fifth grade, which he successfully completed in June 2000. Throughout elementary school, the Student’s educational needs have been met primarily within the regular education classroom, and virtually all of his academic instruction has been in a regular education classroom with certain accommodations and modifications. The Student has maintained average to above average grades across basic skills since the second grade, and has performed similarly on diagnostic and achievement tests.
4. The Student’s completion of elementary school requires that he enroll in a middle school for the sixth grade beginning August 2000.
5. An IEP team met on February 1, 2000, to develop an annual IEP for the Student. [Mother] participated in the IEP team meeting. One of the announced purposes of the meeting was to determine the Student’s placement. The IEP team developed an annual IEP specifying the program and services to be provided for latter part of the fifth grade and the first part of the sixth grade. The IEP provided that in the sixth grade the Student would be in regular education for all subjects except for physical education. The IEP identified certain adaptations, modifications, and support required for him to meet his academic and social goals.
6. The IEP team did not make a placement determination at the IEP meeting. Instead, the IEP was forwarded to the District’s central offices. At the time of the IEP team meeting, the District’s standard procedure was for IEP teams not to make placement determinations, but rather for placement determinations to be done only by personnel at the central office. The District’s placement decision for the Student’s February 2000 annual IEP was made according to this standard practice. Thus, on February 21, 2000, personnel at the central office determined the placement under the IEP to be West Ridge Elementary School, where the Student was then enrolled in the fifth grade. The central office did not determine a placement in a middle school for sixth grade at this time, even though the period covered by the IEP extended to the first part of the sixth grade year.
7. In September 1999, the Wisconsin Department of Public Instruction (DPI) conducted a review of the District’s implementation of state and federal special education procedural requirements. By letter dated November 3, 1999, DPI formally notified the District that it had failed to implement the requirements that the following persons attend the meeting to determine the child’s placement: the child’s parent, special education teacher, regular education teacher, and LEA representative. By letter dated December 9, 1999, the District submitted a corrective action plan to DPI that addressed the procedural deficiencies pertaining to placement. By letter dated May 10, 2000, DPI approved the corrective action plan for implementation. DPI has required that the District fully implement the corrective action plan no later than December 3, 2000.
8. There are seven middle schools within the District. The District assigns students to a particular middle school based upon the "attendance area" in which the student resides. For a student to be enrolled in a middle school outside the student’s attendance area requires that the District approve a request for a "boundary exception".
9. All the middle schools in the District are built on two levels. Gilmore Middle School is the only one that has an elevator and thus is the only one designed to accommodate wheelchair-dependent students. As a result, Gilmore is the only middle school in which the District routinely places wheelchair-dependent children. Thus as of January 2000, all the middle school students identified as having orthopedic impairment (OI) were placed at Gilmore. There were fourteen such children, though not all of them were wheelchair dependent. In addition to the OI students, about six wheelchair-dependent children attended Gilmore whose primary disability was identified as "cognitively disabled – severe" (CD-S). Of all the wheelchair-dependent children who attended Gilmore, only two were programmed primarily in regular education classes. In contrast, no children at Starbuck Middle School were identified as OI or CD-S and no children were wheelchair-dependent. Despite the disparity between Gilmore and Starbuck in the number of children who are wheelchair-dependent, the percentage of students receiving special education and related services at each school was roughly the same at about 15%.
10. Until October 1999, the [Parents]s home was located in the attendance area that was served by both West Ridge Elementary School and Starbuck Middle School. The [Parents]’s were generally content with their house in this area, but decided to move out of it because the bathrooms were not fully accessible to the Student. In October 1999, the [Parents]’s moved into a new home in the attendance area for Gilmore Middle School.
11. The majority of the fifth grade students at West Ridge Elementary will enter the sixth grade at Starbuck Middle School, and they are expected to comprise about 20-25% of all the sixth graders at Starbuck. Only two or three fifth graders from West Ridge are expected to attend Gilmore Middle School for the 2000-2001 school year.
12. Starbuck Middle School is a two-level school without an elevator, but it is situated on a hillside so that the second-floor has a ground-level entrance. It is possible for the Student to get from floor to floor at Starbuck by traveling outside the school building via sidewalks. There are three doorways on the first floor which the Student could reasonably use to travel to or from the second floor ground-level door. The door-to-door distances of the three routes between the first and second floors are 867 feet, 702 feet, and 587 feet. It would take approximately five minutes under optimum conditions for the Student to traverse the longest of these routes.
13. If the Student were to attend Starbuck, the District has determined that it would be necessary for the Student to make between six and eight one-way outside trips each day. This count includes one trip at the beginning and one trip at the end of each day. Thus, between four and six one-way trips would be required from the beginning to the ending bell each day, or a total time of 20 or 30 minutes each day during school hours to travel outside on the sidewalks under optimum conditions. The time between class periods at Starbuck during which all students must move between classes is four minutes.
14. The Student can traverse the sidewalks between the first and second floors at Starbuck without undue risk to himself throughout the school year with reasonable measures such as adult supervision and weather-appropriate clothing.
15. The program and services specified in the Student’s current IEP can be effectively delivered at both Gilmore and Starbuck. The Student is aware that if he attends Starbuck he would be required to traverse the outside sidewalks throughout the school year, with adult oversight, and he is not daunted by the prospect. Rather, he views it as a somewhat minor obstacle and inconvenience in the continuation of a normal progression with his classmates from elementary school to middle school.
16. The Student has long expected that he would move on to Starbuck Middle School from West Ridge along with most of his classmates. His non-disabled classmates at West Ridge view the Student without differentiation. Because the District places virtually all of its wheelchair-dependent middle school students at Gilmore, the Student views placement at Gilmore Middle School as a step backward in his determined efforts to live, to be viewed, and to be treated, as any nondisabled person. He considers placement at Gilmore as a move out of the mainstream from his regular education classmates at West Ridge, into a more segregated environment of Gilmore, because he recognizes Gilmore to be the only middle school where wheelchair-dependent students are schooled.
17. In addition to having to rely on a wheelchair for mobility, the Student from time to time experiences difficulty keeping his food down, and will regurgitate recently ingested food. The Student attempts to minimize these episodes through diet and eating habits, and manages the regurgitation episodes when they occur as discreetly as possible by spitting into a container that he keeps available for this purpose. The Student’s classmates at West Ridge are accustomed to these incidents and respond to them in a mature fashion, not allowing the incidents to affect their acceptance of the Student or ridiculing the Student about them.
18. At the IEP meeting on February 1, 2000, [Mother] initiated a discussion that lasted only a few minutes regarding the appropriate place for the Student to attend middle school. However, since the members of the IEP team were aware that by District policy the team did not have the authority to make a placement determination, this discussion did not develop into an attempt to reach consensus on an appropriate placement. However, a majority of the team members expressed the view that Starbuck would be the better placement for the Student. The IEP team members expressing this sentiment were as follows: [Mother]; the principal of West Ridge, who served as the LEA representative; the occupational therapist; the physical therapist; the school nurse; and the regular education teacher. One or two of the team members commented favorably on Gilmore, while the remaining team members did not weigh in on the subject.
19. If the IEP team had been given the authority to determine the Student’s placement for the sixth grade, it is more likely than not that the team would have placed the Student at Starbuck Middle School for the sixth grade.
20. After the IEP meeting, [Mother] discussed the matter of the Student’s sixth grade placement with various members of the District staff. She toured the grounds of Starbuck Middle School with its principal, and the principal responded in a positive fashion to the prospect of the Student attending Starbuck and doing well there.
21. After further inquiries about the Student’s sixth grade placement, [Mother] was advised in mid-May 2000 by the supervisor of special education for the middle schools, Ms. Susan Everson, that the Student would be placed at Gilmore for the sixth grade and that for the Student to attend Starbuck would require approval of a request for a "boundary exception".
22. By letter dated May 23, 2000, the [Parents]'s submitted the request for a boundary exception to Ms. Everson for the Student to attend Starbuck, stating in part:

Although there are many reasons for this boundary exempt request, our most compelling is to provide the accommodation to enable [Student] to continue with the academic success and social acceptance that he has worked so hard to achieve. [Student] identifies himself as "one of the kids" at West Ridge. The children who have become his classmates and friends have been a large contributing factor to [Student]’s success in school. We have been extremely fortunate in the area of socialization with peers. It has taken six years to establish relationships with children and families who are aware of [Student]’s challenges, and who accept the responsibility of enabling him to participate fully with his friends in Cub Scouts, Peer Mediation, DARE, Camp Timber Less, and all the other extra curricular activities that round out his education and socialization.

23. By letter dated June 1, 2000, Ms. Everson denied the request for a boundary exception, stating that Gilmore was the "least restrictive environment" because it was the Student’s attendance area school and because the floors there are accessible by elevator. Ms. Everson’ supervisor, Ms. Shelley Kritek, concurred in Ms. Everson’s determination. Ms. Kritek testified that she viewed the denial of the request for a boundary exception to be a difficult decision, but that she believed that placement at Starbuck would compromise the Student’s educational program. She believed that movement between floors at Starbuck would diminish the Student’s independence by making him dependent upon an adult to make the move, and that this movement outside would remove the Student from his classmates while he was in transit. Until the matter of the boundary exception request had arisen, neither Ms. Everson nor Ms. Kritek had been involved in any matters pertaining to the Student. Neither Ms. Everson nor Ms. Kritek considered having the IEP team convene to consider an appropriate sixth grade placement for the Student.
24. By letter dated June 8, 2000, to Ms. Everson, the [Parents]'s requested that she reconsider her denial of the request. The District treated this letter as an appeal. By letter dated June 15, 2000, an assistant superintendent for the District, Dr. Ann Laing, denied the appeal. In reaching her decision, Dr. Laing considered the IEP and conferred with Ms. Everson, Ms. Kritek, and others. She did not consult with the [}arents]’s, with any members of the IEP team, or with any person with any direct knowledge of the Student. Like Ms. Everson and Ms. Kritek, Dr. Laing had not been involved in the Student’s program before the request for a boundary exception. Her letter denying the "appeal" states in part:

The IEP indicates that [Student] is fully included in regular education classes. The IEP indicates that his needs are related to mobility issues and his needing to use a wheelchair. I have found no reason for [Student] to be assigned to any school other than his attendance area school, Gilmore Middle School.

Based on the IEP, it seems that the least restrictive environment for [Student] is his attendance area school which is accessible and can meet all of his needs. I believe that moving [Student] to another school would compromise his independence within the building.

In passing on the appeal, Dr. Laing focused primarily on the whether the services set forth in the IEP could be provided at Starbuck, and secondarily on the criteria contained in the District’s established boundary exception policy. The District’s actions on the request for a boundary exception were not intended to be the equivalent of or a substitute for a formal placement under the IEP. Dr. Laing testified that she considered Gilmore to be the least restrictive environment under the IEP because there the Student would be totally independent, as opposed to Starbuck where an adult would be involved in the Student’s trips between floors. She also believed that the Student would have greater socialization with his classmates at Gilmore because there he would not have to leave the building to change classes.

25. Requests for boundary exceptions made on behalf of special education students are not unusual in the District. In the previous two academic years, the District received sixty such requests and granted more than half of them.
26. If Starbuck were equipped with an elevator like Gilmore, the District would have granted the [Parents]'s request for a boundary exception, and allowed him to attend Starbuck.
27. The District’s practice is to mail the notifications of special education placements for the upcoming school year in the summer just before school starts. As of the time of the due process hearing, the notification of placement at Gilmore for the Student had not yet been mailed to the [Parents]’s, but unidentified personnel in the District's central office had determined the placement under the IEP to be Gilmore.
28. The personnel in the District’s central office who make the placement determinations for special education students would have placed the Student at Gilmore Middle School even if he did not then reside in the Gilmore attendance area, solely because of the existence of the elevator at Gilmore.
29. On August 4, 2000, the [Parents]’s had the Student evaluated by a certified school psychologist for the purpose of the due process hearing. His description of the Student as an extraordinary youngster who has adapted at a high level without any emotional or psychological deficits is consistent with all other descriptions of the Student. The psychologist’s opinion that placement at Gilmore poses a serious threat to the Student’s personal autonomy and self-definition is credible and persuasive.

1. The District’s placement of the Student at Gilmore Middle School under the existing IEP was procedurally improper and constitutes a denial of a free appropriate public education.

2. Placement at Starbuck Middle School is the appropriate placement for the Student for the sixth grade under the Student’s existing IEP under the standards set forth in 34 C.F.R. § 300.552.

3. The Parents are the prevailing party in this matter.

The District’s practice of having personnel at its central administrative offices make the placement decision, rather than requiring that the IEP team make this determination, constitutes a procedural violation of Chapter 115, Wis. Stats., and the IDEA. The corrective action plan required by DPI pertaining to this practice implements statutory and regulatory provisions that unambiguously require districts to allow parental participation in meetings pertaining educational placement. Wis. Stat. § 115.78(2)(c) requires that IEP teams "[d]etermine the special education placement for the child", and § 115.792(a)(1) entitles parents to "participate in meetings about the … educational placement of the child." Federal regulations likewise require opportunity for parental participation in the placement decision. 34 C.F.R. § 300.501 provides in part as follows:

See also 34 C.F.R. 300.552(a)(2), which mandates that the placement decision be made "by group of persons, including the parents, and other persons knowledgeable about the child, the meaning of the evaluation data, and the placement options." (Emphasis supplied).

In Board of Education v. Rowley, 458 U.S. 176 (1982), the Supreme Court stressed the importance of parental participation in the IEP process:

See also Hoffman v. East Troy Community School District, 38 F. Supp.2d 750, 761 (E.D. Wis. 1999).

The District’s formal placement at Gilmore Middle School was not made by the IEP team but rather was made by central office administrators who had no direct involvement with the Student or his program. The same is true with respect to the District’s denial of the [Parents]’s request for a boundary exception.

A procedural violation constitutes a denial of a free appropriate public education (FAPE) if it seriously infringes on the parents’ opportunity to participate in the IEP process. W.G. v. Bd., of Trustees, 960 F.2d 1479, 1484 (9^th Cir. 1992). The District’s failure to have the IEP team make the placement determination completely thwarted the parents’ rights (1) to participate in meetings that determine placement and (2) to have those persons most likely to have the greatest knowledge of the Student and his unique needs to be involved in the placement decision. The procedural violations are substantial. The District’s placement determination constitutes a denial of FAPE.

If the IEP team had been appropriately authorized to make a placement determination for the sixth grade, it is more likely than not that the team would have specified placement at Starbuck. The District argues that the question of whether such a placement at Starbuck would be substantively appropriate must still be determined in this proceeding, because if the IEP team had duly made the placement at Starbuck, the District would have requested a due process hearing under 34 C.F.R. 300.507(1) to challenge the placement. For purposes of the remainder of this analysis, it is assumed that a district may indeed initiate a due process hearing to contest a procedurally appropriate placement determination made by its own IEP team.

An IEP team’s placement of the Student at Starbuck would be substantively appropriate. The substantive criteria for a placement decision are set forth in 34 C.F.R. Section 300.552, "Placements", which provides in part as follows:

The District contends that since Gilmore is the school that the Student would attend if he were not disabled and because Gilmore is able to administer the education program established by the IEP, it is the appropriate placement. This argument fails for at least two reasons.

First, a number of District witnesses acknowledged that the District would have placed the Student at Gilmore no matter which attendance area he resided in. Thus, even if the [Parents]'s still lived in the Starbuck attendance area, the District would have found that the Student's "neighborhood school" (Starbuck) was not an appropriate placement. The de facto "attendance area" for any wheelchair-bound middle school student in the District is Gilmore. There is no support for a Gilmore placement in IDEA’s preference for the "neighborhood school" because the District would have placed the Student at Gilmore no matter what his specified attendance area had been.

Second, the IDEA states merely a preference for the neighborhood school, not a mandate. Murray v. Montrose County Sch. Dist., 51 F.3d 921, 22 IDELR 558 (10th Cir. 1995). In selecting an appropriate placement, the IEP team is bound to consider "any potential harmful effect on the child or on the quality of services that he or she needs." 34 C.F.R. § 300.552(d).

The potential harmful effects of a placement away from Starbuck (the school that would have been his neighborhood school but for the Student's recent move to a more accessible house) was convincingly articulated by the [Parents]’s expert witness. The potential harmful effects were likewise well expressed by the [Parents]’s themselves, as well as the principal and the school nurse of West Ridge Elementary, both of whom are well acquainted with the Student. The District presented no persuasive contradictory evidence.

Further, the District’s articulated reasons for preferring Gilmore do not weigh in favor of placement other than Starbuck. The District’s witnesses stated two primary reasons for finding Gilmore to be a more appropriate placement than Starbuck.

Ms. Kritek and Dr. Laing believed that the Student’s independence would be diminished at Starbuck because he would be reliant on an adult to escort him on trips between the floors. Neither Kritek nor Laing has met the Student, nor is either a certified school psychologist. The [Parents]'s expert witness, who evaluated the Student and who is a certified school psychologist, convincingly dispelled this rationale.

Ms. Kritek and Dr. Laing also believed that the Student would lose socialization time at Starbuck during the time he was traveling between classes. This transit time is de minimus relative to the entire school day. The benefits of increased socialization at Gilmore during passage time between classes are far outweighed by the benefits to be gained by placement at Starbuck, where a core of non-disabled students from West Ridge familiar with the Student and his needs may be reasonably expected to ease the often turbulent transition from elementary schoolboy to middle school adolescent. Cf. Roncker v. Walter, 700 F.2d 1058 (6th Cir. 1983)(more segregated placement may be appropriate where "any marginal benefits received from mainstreaming are far outweighed by the benefits gained from the services which could not feasibly be provided in the non-segregated setting").

The District has not demonstrated that there are any substantial safety or health concerns involving the Student’s moving from floor to floor at Starbuck. Nor has the District demonstrated that transit time would significantly encroach upon the Student’s class time.

For these reasons, placement at Starbuck for the sixth grade under the current IEP is substantively appropriate under the criteria of 34 C.F.R. § 300.552.

The sixth grade placement for the Student under his existing IEP shall be Starbuck Middle School.

Dated at Milwaukee, Wisconsin on August 28, 2000.