Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

RULING AND ORDER ON MOTIONS TO DISMISS

The Parties to this proceeding are:

On December 8, 2000, the Department of Public Instruction (DPI) received a request for a due process hearing under Subchapter V, Chapter 115, Wis. Stats., and the Individuals with Disabilities Education Act ("IDEA"), filed by [Mother] ("Parent") on behalf of her daughter [Student] (the "Student"). The Student's date of birth is [XXXXXXX].

The Student resides in the Milwaukee Public Schools ("MPS") school district but attends school in the St. Francis School District ("SFSD"). The Parent's stated reason for filing the due process hearing request was "to contest the possible cancellation of [the Student's] enrollment" in SFSD and also to request that SFSD "convene an IEP meeting to modify [the Student's] program."

DPI captioned the due process hearing request to show both [Unnamed School District] and SFSD as parties. The Division of Hearings and Appeals followed suit and captioned the case in like manner in issuing its initial scheduling order.

During a prehearing telephone conference on December 18, 2000, counsel for MPS asserted that MPS was not a proper party, and counsel for SFSD asserted that there was a lack of "subject matter jurisdiction" over the due process hearing request. MPS and SFSD thereafter filed separate motions to dismiss with evidentiary material in support of each. The Parent filed separate responses to each motion. MPS and SFSD both filed material in reply to the Parent's filings. The motions are granted and the due process hearing request is therefore dismissed.

Motions to dismiss are appropriately treated as motions for summary judgment when evidentiary material is considered. See Wis. Stat. § 802.06(3); Envirologix Corp. v. City of Waukesha, 192 Wis.2d 277, 287, 531 N.W.2d 357, 362 (Ct.App. 1995). The grant of summary judgment is appropriate when the evidentiary material shows that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Moulas v. PBC Productions, Inc., 213 Wis.2d 406, 410, 570 N.W.2d 739 (Ct.App. 1997). No genuine issue of material fact exists here. The material facts are as follows.

The Student resides within MPS and attended MPS schools during the 1999-2000 school year. MPS has identified the Student as a "child with a disability" within the meaning of state and federal law. During the 1999-2000 school year MPS provided the Student with special education and related services at public expense pursuant to an individualized education program ("IEP") under IDEA and Subchapter V, Chapter 115, Stats. On May 5, 2000, MPS reviewed and revised the existing IEP and approved a new IEP for the period May 5, 2000 to May 4, 2001, with the Student's placement continuing in MPS. The Parent participated in this IEP meeting.

On February 4, 2000, the Parent completed an application for the Student to transfer to another district under a voluntary transfer program known as the "Chapter 220" program.¹ The application form contained the following question: "Has your child ever been enrolled in an Exceptional Education Program?" The Parent responded by marking the "No" box. This was a knowing misrepresentation because the Parent believed an accurate response would have caused the application to be disapproved.

FOOTNOTE: ¹See Subchapter VI, Chapter 121, Stats. The legislature's declared purpose in enacting Chapter 220 was "to facilitate the transfer of students between schools and between school districts to promote cultural and racial integration in education where students and their parents desire such transfer and where schools and school districts determine that such transfers serve educational interests." 1975 Wis. Laws Chapter 220, § 1. The law permits school districts to make annual written agreements permitting the transfer of students between districts under certain circumstances. Wis. Stat. § 121.85(3)(a). In one type of permitted transfer, a "minority group pupil" who resides in an attendance area whose minority group pupil population is 30% or more may transfer to a school in another district where minority group pupils constitute less than 30% of the student population. See Wis. Stat. § 121.85(2)(a). School districts that accept "Chapter 220" transfer students receive additional state funding for each such student. Wis. Stat. § 121.85(6)(b).

In passing on the Parent's application, SFSD was unaware that the Student had been identified as a "child with a disability". SFSD accepted her as a Chapter 220 transfer and enrolled her as a regular education student for the 2000-2001 school year. The Parent knew that the Student was being enrolled as a regular education student and continued to fail to disclose the Student's special education history before enrollment.

Once the school year had gotten underway, the Student's teacher at SFSD believed that the Student was having difficulty with the general curriculum. SFSD eventually learned that the Student had been receiving special education services under an IEP at MPS. By letter dated November 16, 2000, SFSD informed the Parent that SFSD would not have accepted the Student under the Chapter 220 program if the Parent had accurately completed the application. SFSD informed the Parent that it was "forced to deny [the Student] continued enrollment" in SFSD. The Parent then requested that the Student be allowed to continue her enrollment in SFSD, but by letter dated November 29, 2000 SFSD denied this request. On December 8, 2000, the Parent filed the due process hearing request to "contest the possible cancellation of my daughter's enrollment" in SFSD and requesting that SFSD convene an IEP meeting to modify the Student's program.

If the Parent had responded truthfully on the application form, SFSD would not have accepted the Student as a Chapter 220 transfer. Rather, SFSD would have received information regarding the Student's IEP and would have concluded that it did not have existing capacity to provide the special education and related services required by the IEP. SFSD would also have concluded that the cost of providing the services required by the IEP would have cost more than SFSD would receive for the Student under Chapter 220 and other state reimbursements. Under the terms of its Chapter 220 agreement with MPS for the 2000-2001 school year, SFSD had the right not to accept the Student if the cost of her special education program exceeded the financial assistance received for the Student under the Chapter 220 program and other state reimbursements. That agreement provides in pertinent part as follows:

If [SFSD] had been informed of the IEP and had thus been allowed the opportunity to review it, [SFSD] would have rejected the application under paragraph 3.A., and the Student would not have been enrolled in [SFSD] as a Chapter 220 student.

Decision

MPS Motion to Dismiss

MPS moves to dismiss on the ground that the Parent's due process hearing request seeks relief only against SFSD, not MPS. In opposing the motion, the Parent asserts that granting MPS's motion "would defer the obligation of MPS to perform a retest on my daughter in a timely fashion."

MPS's motion must be granted. A parent may receive a due process hearing to challenge "the refusal or proposal of the local educational agency to initiate or change his or her child's evaluation, individualized education program, educational placement or the provision of a free appropriate public education". Wis. Stat. § 115.80(1)(a). The due process hearing request does not challenge any act of MPS that falls within the scope of § 115.80(1)(a).

In opposing the motion the Parent presented evidence that by letter to MPS dated January 16, 2001, she requested that MPS re-evaluate the Student's program. The Student has remained enrolled in SFSD since the due process hearing request was filed. Under paragraph 3.B. of the Chapter 220 agreement, MPS is not responsible for such a reevaluation request. In its motion papers, MPS has correctly acknowledged that upon the Student's return to MPS it would be obliged to assume its responsibility to provide services required by IDEA and Subchapter V, Chapter 115, Stats.

For these reasons, the Parent has failed to state a claim against MPS under IDEA or Subchapter V, Chapter 115, Stats., so the due process hearing request as to MPS must be dismissed.

SFSD Motion to Dismiss

SFSD moves to dismiss on the ground that the Parent's request to continue the Student's enrollment at SFSD and to convene an IEP meeting fails to state a claim under IDEA or Subchapter V, Chapter 115, Stats. SFSD's motion must be granted.

The Parent's knowing misrepresentation induced SFSD to approve the Student's application for Chapter 220 transfer. If the Parent had completed the application accurately, SFSD would have exercised its right under paragraph 3.A. of the agreement to reject the application, and the Student would not have been enrolled in SFSD.

SFSD decided to discontinue the Student's enrollment because it would not have accepted her in the first instance under the Chapter 220 program and agreement. SFSD acted pursuant to the Chapter 220 program and agreement; SFSD did not take any act specified in Wis. Stat. § 115.80(1)(a) that may be challenged through a due process hearing. Acts taken under the Chapter 220 program and agreement are not in themselves subject to challenge in a due process hearing under § 115.80(1)(a). The Parent's challenge to SFSD's decision to discontinue the Student's enrollment, therefore, does not state a claim under IDEA or Subchapter V, Chapter 115, Stats.

With respect to the Parent's request that SFSD convene an IEP meeting, the Parent may not require SFSD involuntarily to assume the responsibility for providing the Student with special education services after having gained her enrollment through subterfuge. The Parent is equitably estopped from asserting such a request. The doctrine of equitable estoppel focuses on the conduct of the parties. The elements of equitable estoppel are: (1) action or non-action, (2) on the part of one against whom estoppel is asserted, (3) which induces reasonable reliance thereon by the other, either in action or non-action, and (4) which is to his or her detriment. Riccitelli v. Broekhuizen, 227 Wis.2d 100, 113, 595 N.W.2d 392 (1999). All the elements of equitable estoppel are present here, so any challenge to SFSD's refusal to convene an IEP meeting must be dismissed.

For these reasons, the due process hearing request is dismissed as to SFSD.

IT IS HEREBY ORDERED, that the due process hearing request filed by [Mother] on behalf of her daughter [Student] is dismissed.

Dated at Milwaukee, Wisconsin on January 26, 2001.