Before The
State Of Wisconsin
DIVISION OF HEARINGS AND APPEALS

FINDINGS OF FACT, CONCLUSIONS OF LAW,
AND ORDER

On March 1, 2001, the Department of Public Instruction received a request for a due process hearing under Wis. Stat. Ch. 115 (1997-98) and the Individuals with Disabilities Education Act (IDEA) from the Necedah School District in the matter of [Student]. The District’s hearing request asks that the parent’s refusal to consent to an evaluation of his social/emotional behavior be overridden. A prehearing conference was held on March 16, 2001 and the matter was set for a due process hearing. That hearing was held on April 10, 2001.

The Parties to this proceeding are:

Based on the entire record in this matter, this is the final decision and order of the undersigned Administrative Law Judge.

1. [Student], DOB [xxxxx, hereafter referred to as the "Student", is enrolled in the sixth grade at Necedah High School hereafter referred to as the "District" within the Necedah School District.
2. On October 19, 2000, the District received a special education referral from [Father] and [Mother], hereafter referred to as the "Parents", for an evaluation of his academic ability. (Exhibit #1)
3. The District requested permission to also evaluate the Student’s emotional/social behavior at the some time and the Parents refused to give permission for that type of evaluation.
4. The District attempted to schedule an Individualized Education Program (IEP) meeting in November of 2000, but the Parents refused to attend the meeting until they had received all of the completed academic evaluation reports in advance of the meeting.

5. The Parents received all of the evaluation reports from the District on December 5, 2000.

6. The IEP meeting was rescheduled for December 12, 2000 and December 20, 2000 and finally took place on January 10, 2001. The Parents had notice of the meeting by an invitation to an IEP meeting mailed to the Parents and a telephone call to the Parents prior to the meeting. The Parents refused to attend the meeting.

7. The Student’s father testified that the Parents refused to attend the IEP meeting because the District had lied and made misrepresentations to his family. The father did not give any specific examples of the District lying or making misrepresentations to the Parents or to the Student.
8. The IEP team evaluation report (Exhibit #3) determined that the Student was not eligible for special education services for his academic ability. The report states that :

"Although he demonstrates delays in his academics, he demonstrates low average academic ability. Teachers also report that his behavior may interfere with his ability to acquire skills. A referral for Emotional Disabilities will be initiated." (Exhibit #3, page 4)

9. The IEP team evaluation report also summarized observations by teachers that determined the need to evaluate for social/emotional disabilities:

   "Teachers were considering a referral for Emotional Disabilities when parents initiated this referral. Teachers reported that they believe that his behavior is significantly interfering with his ability to learn the material. [Student] has a difficult time remaining on task. His behavior is also very distracting to the students around him. In all classes, students ask on a regular basis to be moved away from [Student] because of his behavior. [Student] will make noises, use inappropriate language toward both adults and peers, call peers names and challenge them to fight. He has made threatening comments, both verbally and written, to both teachers and students. He is outwardly defiant to teachers. For example, when asked to do something, he will purposely not do it, or do it for a short time and then revert back to the inappropriate behavior within seconds." (Exhibit #3, page 2)

10. The Parents were notified that the Student was not eligible for special education services for his academic ability. (Exhibit #4)

11. On three occasions since the January 10, 2001 IEP meeting, the District requested that the Parents consent to an evaluation of the Student’s social/emotional behavior. (Exhibits 5, 6 and 7)

12. The Parents refused to respond to any of these requests for consent to the evaluation. As a result of this refusal to consent, the evaluation for social/emotional behavior was not conducted.

13. According to the testimony of the Student’s science and resource study hall teacher, the Student’s behavior continues to be a problem that is interfering with his ability to learn and disrupts the entire classroom.

14. A specific example of the Student’s behavior in school was when he wrote the words "I will kill you" on the board in a classroom and then asked the teacher if she had located the "secret message" in the classroom. (Exhibit #8)

15. The father testified that the District wants to label the Student and blame the home environment for the Student’s problems in school. He testified that he did not believe that an evaluation for social/emotional behavior would be helpful to the Student’s ability to learn. Both parents believe that the Student behaves like a normal 12 year-old boy.

16. The mother testified that she believes that the Student’s behavioral problems stem from a single teacher who has humiliated the Student and has caused him to have a bad attitude. However, she admitted that this particular teacher did not make many of the referrals made by the Student’s teachers for behavioral problems this school year.

17. The Student testified that he did not want to be evaluated for his social/emotional behavior. However, he agreed that his behavior interfered with his learning and that if his behavior was under control, he would be able to learn better.

Every child with a disability is entitled to a Free and Appropriate Public Education (FAPE). See 20 U.S.C. §1400, et seq., and Wis. Stat. Ch. 115 (1997-98). To meet this requirement, a school district must evaluate a Student’s unique educational needs for every child that may be eligible for special education services. See 20 U.S.C. §1414 and Wis. Stat. §155.782 (1997-98). Before such testing may be conducted, however, the district must obtain parental consent. Id. The district may seek to override any refusal to grant consent through a due process hearing. See Wis. Stat. §115.80 (1)(B) (1997-98).

In this case, the District reasonably suspects that the Student needs special education and related services by reason of social/emotional behavioral disabilities. This conclusion is based upon the observations of the Student by teachers, which show a continual pattern of poor behavior and lack of motivation on the part of the Student. His inappropriate behavior and language has impaired his own learning as well as the learning of other students. This behavior fits within the definition of an emotional disturbance as defined in Wis. Admin. Code §PI 11.26 (7) and clearly requires additional evaluation.

The Parents’ argument that the Student is a normal 12 year-old boy that and that a single teacher is the cause of his behavioral difficulties is not supported by any evidence in the record. Even the Student himself acknowledges that he has behavioral difficulties that interfere with his learning. Therefore, the school must conduct additional testing to evaluate the Student’s social/emotional behavior to ensure that the Student is provided FAPE.

It is unfortunate that the Parents have no confidence in the District to provide the proper services to the Student. However, the Parents need to be aware that if the District finds that the Student is eligible for special education services because of the evaluation of his social/emotional behavior, the District will be required to give the Student special education and related services. These services will be required in order to provide the Student with a Free and Appropriate Public Education as required by IDEA.

1. There are significant reasons to believe that the Student required special education and related services by reason of social/emotional disturbance under Wis. Stat. §115.76 (5) (1997-98) and Wis. Admin. Code §PI 11.36 (7).
2. The parents’ refusal to consent to an evaluation to determine the need for special education and related services for emotional disturbance is unreasonable and will deny the Student a Free and Appropriate Public Education (FAPE) as required by the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1400, et seq., and Wis. Stat. Ch. 115 (1997-98) and should be overridden.

FOR THE FOREGOING REASONS, IT IS HEREBY ORDERED that the Parents’ refusal to consent to the proposed evaluation is overridden and the District is allowed to conduct an evaluation of the Student for social/emotional behavior.

IT IS FURTHER ORDERED that the Student will not be eligible for special education services until the parents’ comply with the proposed evaluation and that the District shall be allowed an extension of time to notify the Parents of the educational placement of the Student as required by Wis. Stat. §115.78(3) until 90 days after the evaluation of the Student for social/emotional behavior takes place.

Dated at Madison, Wisconsin on April 13, 2001.

NOTICE OF APPEAL RIGHTS

APPEAL TO COURT: Within 45 days after the decision of the administrative law judge has been issued, either party may appeal the decision to the circuit court for the county in which the child resides under §115.80(7), Wis. Stats., or to federal district court pursuant to U.S.C. §1415 and 34 C.F.R. §300.512.