Heather S. v. State of Wis.

Decision Date16 September 1997
Docket NumberNo. 96-3340,96-3340
Citation125 F.3d 1045
Parties121 Ed. Law Rep. 493 HEATHER S., by her natural parent and next friend, KATHY S., Plaintiff-Appellant, v. STATE OF WISCONSIN, John T. Benson, Juanita Pawlisch, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Ronald S. Stadler (argued), Patricia N. Engel, Stadler & Schott, Brookfield, WI, for Plaintiff-Appellant.

Mary Woolsey Schlaefer (argued), Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Defendants-Appellees State of Wisconsin, John T. Benson, Juanita Pawlisch.

William Sosnay (argued), Jane M. Knasinski, Davis & Kuelthau, Milwaukee, WI, for Defendants-Appellees Pewaukee School District, Lee Wille, Mary Cimbalnik.

Before EASTERBROOK, RIPPLE, and MANION, Circuit Judges.

MANION, Circuit Judge.

Kathy S., on behalf of her daughter Heather S., a minor with disabilities, challenges both the substantive and procedural adequacy of the educational opportunities offered her by the Pewaukee, Wisconsin, School District. The district court granted summary judgment to the state and school district defendants after determining that the district had complied with the Individuals with Disabilities Education Act (IDEA) 1 when it assessed Heather's education needs and devised what is called an individualized education program (IEP). The court determined that the school district had offered Heather a free and appropriate education within the meaning of the statute. The court also determined that Heather either had waived the procedural errors about which she complains, or that those errors, if not waived, had not deprived Heather of any substantive rights provided by IDEA. Heather appeals; we affirm.

I.

Heather S. was born on September 24, 1980. In 1984 the Pewaukee School District identified Heather as requiring special education services. From 1984 until this lawsuit was filed in 1995, the district convened eleven M-teams 2 to assess Heather's educational needs and prepared sixteen IEPs. Throughout this time, Heather was classified as learning disabled and enrolled in learning disabilities (LD) programs. In 1988, the district began providing Heather with speech and language services. When Heather was in the third grade, the district added occupational therapy. In 1989, Heather was diagnosed with attention deficit hyperactivity disorder and placed on Ritalin. Also in 1989 she began experiencing seizures which, during the 1992-93 school year, began occurring at school. During her three-year reevaluation at the end of the 1989-90 school year, an M-team again identified Heather's primary handicapping condition as learning disabled and recommended continued speech, language, and occupational therapy. Heather began receiving services for visual impairment during the 1991-92 school year. Throughout this period, Heather's parents were satisfied with her placement in the LD program at Pewaukee and disputed neither the M-team assessments nor the resulting IEPs.

During the 1992-93 school year, while enrolled in the sixth grade at Pewaukee Middle School, Heather's seizures escalated in frequency and intensity. She experienced increasing difficulty with academics and with her relationships with classmates. An M-team convened on May 17, 1993 to assess Heather in preparation for her entry into seventh grade. A majority of the team agreed that Heather no longer met the criteria for learning disabled. Mary Roberts, director of student services, did not approve the M-team's report and returned the matter to them for further consideration, including consideration of whether Heather met the criteria for "other health impaired." 3 At the insistence of her parents, Heather was not tested for cognitive disabilities.

The M-team reconvened on June 2, 1993, at which time its members concluded that Heather's primary handicapping condition was other health impaired. An IEP was developed on June 8, and a placement offered on June 10 which proposed educating Heather in a borderline cognitive disability program at the Richmond School:

Heather's continuing medical complications adversely affect her ability to process, organize, and recall previous and current learned information that prevents academic growth. Heather is in need of a more individualized and specialized educational program that will take into account her handicapping conditions and attempt to work successfully at increasing her knowledge base and social/adaptive behaviors. Her needs can be most appropriately addressed in a cognitive disability-borderline program designed to focus on her current academic and social/adaptive levels.

Heather's parents disagreed with the assessment and appealed the IEP and the offered placement on August 16, 1993. They believed Heather should remain in a modified LD program. In response to the appeal, another IEP meeting was held on August 27 and an IEP developed which provided for the "stayput" provision pending resolution of the dispute over the IEP and the Richmond School placement. 4 Heather thereby remained in the combined self-contained integrated learning disabled program and regular education classes in which she was already placed.

Heather's parents arranged for an independent evaluation of Heather and agreed to hold the hearing process in abeyance so that the results of the evaluation might be considered in the development of an amended IEP or reconsideration of the Richmond placement offer. The M-team reconvened on September 27. It was comprised of ten staff members who had experience with Heather: Gayle Best and Joanne Reinfeldt, learning disabilities teachers; Lynn Goeden-Hough, a visual impairment specialist; Kate Morand, a speech and language pathologist; Leslee Jepson, an occupational therapist; Jeff Mamerow, a tech ed instructor; Carrie Sauld, a specially designed physical education instructor; Amy Farrow, a guidance counselor; Susan Behnke, a choir teacher; and Dennis Cahn, a school psychologist. There were several other people present as observers, including Mary Roberts, director of student services, Heather's mother, and Heather's mother's attorney. In addition to all of the evidence they had considered in the past (and their own experiences with Heather), the M-team considered the independent evaluations performed by St. Francis Children's Center which included an auditory-perceptual test and the Woodcock-Johnson tests of cognitive ability. They also considered a psychological test performed by Terrence McGuire, a Pewaukee public schools psychologist, and an occupational therapy evaluation.

The report that came out of the meeting detailed Heather's difficulties with her educational progress in the learning disabilities program. Although she was nominally in 7th grade the report summarized her educational performance as far below that level:

Heather's math instructional level is at the 2.6 grade level. Her science curriculum is at the 2.5 level.... In English, she is participating in a modified 7th grade curriculum and Heather is having extreme difficulty comprehending concepts that are being presented. According to testing, her instructional level is approximately 3rd grade. In reading, Heather is in the B-2 series of SRA which is approximately 3rd grade level. Modifications in all academic subject areas include: large print books and materials, group instruction of 4-9 members, additional time, use of finger and/or paper to track reading materials, use of large print computer font and/or printing for written work.

The report also summarized health factors influencing Heather's progress:

... Heather has a past and current history of seizure activity. Past reports indicate her seizuring seems to be increasing as well as blackouts. Heather has been on Depicane since last summer with an increasing dosage up the current 1000 mg. Additionally, Phenobarbital has been administered and [Heather's mother] indicates that Heather is also now receiving Ritalin twice a day. The type of "black out" as seen last year has changed in severity and duration. During these current episodes, Heather is either unable to speak, or she speaks incoherently. These episodes last approximately 30-50 seconds with body tremors. Following these episodes, Heather requires time to rest. The symptoms are atypical from previous blackouts last year.

The report described Heather's social behavior:

Heather tries to initiate relationships with teachers and adults usually in an immature fashion. She continuously interrupts with irrelevant and off-task comments. When adults are seen as an authority figure, Heather shows physical signs of anxiety i.e. tremors, shaking. Heather still has difficulty interacting appropriately with peers. When peers initiate social interaction, there is no reciprocity on Heather's behalf. Because of her social delays, Heather doesn't know how to respond appropriately to her peers either in large or small groups.

The report determined that Heather had exceptional educational needs resulting from "one or more handicapping conditions":

Based on the review of past and private evaluations, and current testing Heather is identified as a student with exceptional educational need with respect to Other Health Impairment. Additionally, other handicapping conditions include physical and visual impairment and speech or language.

The report concluded that "[a]s a result of her low academic functioning and current medical situation, Heather requires a significantly modified academic program to best meet her educational needs." Except for school psychologist Cahn, every member of the M-team ultimately agreed with and signed the M-team report. Cahn filed a separate report in which he concluded:

I continue to maintain that Heather presents a consistent profile of a student with stronger verbal reasoning skills with consistent nonverbal/visual processing deficits. Additionally, through observations...

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