School Dist. of Wisconsin Dells v. Z.S.

• Decision Date: 10 September 2001
• Docket Number: No. 00-C-619-C.,No. 00-C-0662-C.,00-C-619-C.,00-C-0662-C.
• Court: U.S. District Court — Western District of Wisconsin
• Parties: SCHOOL DISTRICT OF WISCONSIN DELLS, Plaintiff, v. Z.S. and Judith Littlegeorge, Defendants. Judy Littlegeorge, Plaintiff, v. Wisconsin Dells School District, Defendant.

184 F.Supp.2d 860

SCHOOL DISTRICT OF WISCONSIN DELLS, Plaintiff, v. Z.S. and Judith Littlegeorge, Defendants.

Judy Littlegeorge, Plaintiff, v. Wisconsin Dells School District, Defendant.

No. 00-C-619-C.

No. 00-C-0662-C.

United States District Court, W.D. Wisconsin.

September 10, 2001.

Linda Hale, Baraboo, WI, for Judy Littlegeorge.

David E. Rohrer, Lathrop & Clark, Madison, WI, for School Dist. of Wisconsin Dells.

OPINION AND ORDER

CRABB, Chief Judge.

These are two consolidated civil actions arising out of an administrative hearing. In case no. 00-C-0619-C, plaintiff School District of Wisconsin Dells seeks reversal of the decision of an administrative law judge under the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400-1487. See 20 U.S.C. § 1415(i)(2)(A). Plaintiff contends that the administrative law judge erred in reaching two conclusions: that defendant Z.S. was a child with both an emotional disability and autism and that plaintiff did not provide Z.S. with a free and appropriate public education during the 1999-2000 school year. Defendants Z.S. and Judith Littlegeorge have filed four counterclaims in which they seek injunctive and monetary relief, alleging that plaintiff violated the Individuals with Disabilities Education Act; § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; and 42 U.S.C. § 1983. Defendants also bring a state law claim of negligent hiring.

Case no. 00-C-0662-C is a suit brought by Judy Littlegeorge seeking attorney fees and costs as the prevailing party in the administrative action. It was filed originally in state court and removed to this court by the school district. Because this case is a duplication of the counterclaim filed by Littlegeorge in 00-C-0619-C, I need not discuss it further. In the remainder of this opinion, I will address only case no. 00-C-0619-C, which is before the court on the plaintiff school district's motion for summary judgment on its IDEA claim and on defendants' four counterclaims.

As explained in this court's Procedures to be Followed on Motions for Summary Judgment, a copy of which was given to each party with the Preliminary Pretrial Conference Order on December 14, 2000, I will take as undisputed plaintiff's proposed facts that defendants do not contest specifically with proposed facts of their own that are based on record evidence. See Procedures, II.C.1 ("Unless the nonmovant properly places a factual proposition of the movant into dispute, the court will conclude that there is no genuine issue as to the finding of fact initially proposed by the movant.") The Court of Appeals for the Seventh Circuit has stated that "entry of summary judgment will be sustained `where the nonmovant has failed to submit a factual statement in the form called for by the pertinent rule and thereby conceded the movant's version of the facts,' if on the basis of the factual record the movant is entitled to judgment as a matter of law." Johnny Blastoff v. Los Angeles Rams Football Co., 188 F.3d 427, 439 (7th Cir.1999) (quoting Brasic v. Heinemann's Inc., 121 F.3d 281, 286 (7th Cir.1997)). Facts contained in defendants' brief will not be considered because none was properly made the subject of a proposed finding of fact supported by record evidence.

Plaintiff's motion for summary judgment will be granted on its IDEA claim. My own independent determination is that the Individualized Education Programs that plaintiff developed for defendant Z.S. for the 1999-2000 school year met the requirements of the IDEA. Although the administrative law judge found to the contrary, I believe that he erred in his determination. Summary judgment will be granted to plaintiff on defendants' counterclaims because no reasonable finder of fact could conclude that plaintiff violated § 504 of the Rehabilitation Act, § 1983 or the state law prohibiting negligent hiring.

For the purpose of deciding the pending motion for summary judgment, I find from the facts proposed by plaintiff and from the administrative record that the following facts are material and undisputed.

UNDISPUTED FACTS

Plaintiff School District of Wisconsin Dells is a political body organized and operating pursuant to Wisconsin statutes. Defendant Z.S. is a student who lives within the boundaries of plaintiff school district. He was born on August 28, 1988. Defendant Judith Littlegeorge is Z.S.'s grandmother and legal guardian.

A. 1991 Initial Evaluation and 1991 — 1993 Individualized Education Programs

On September 5, 1991, when defendant Z.S. was just three, defendant Littlegeorge referred him to plaintiff for an initial multidisciplinary evaluation because of her concerns about his speech delays and behavior problems. On September 20, 1991, plaintiff assigned Z.S. a multidisciplinary evaluation team, consisting of G. Webb (school psychologist), M. Jansen (an early childhood special education teacher), K. Kolumba (a speech clinician, who was also an early childhood special education teacher) and E. Voigt (school principal). On October 28, 1991, the multidisciplinary team conducted a meeting and generated a summary report, determining that defendant Z.S. was a child with an emotional disturbance and a speech or language handicap and was in need of special education.

On October 31, 1991, November 16, 1992 and November 17, 1993, Individualized Education Program (IEP) meetings were conducted at which the team wrote annual speech and behavior goals and identified Z.S.'s present level of performance. After each meeting, defendant Littlegeorge was sent a "Notice of Intent to Place and Consent for Placement." After the October 1991 meeting, defendant Z.S. was placed in plaintiff's early childhood speech and language preschool program at Spring Hill School.

B. 1994-95 Reevaluation and Individualized Education Program

During the 1994-95 school year, when defendant Z.S. was six, he was enrolled in kindergarten at a private school, Trinity Lutheran. On February 3, 1995, the principal of Trinity Lutheran School sent defendant Littlegeorge a Notice of Intent to Refer, informing her that defendant Z.S. was being referred to plaintiff for a multidisciplinary team evaluation because of Z.S.'s "severe stubbornness and uncooperation." In addition, the letter stated that defendant Z.S. exhibited "uncontrolled behavior in the classroom," such as "making physical contact with another child or teacher to gain authority, throwing objects, screaming, moving — pushing — tipping over furniture." On March 14, 1995, plaintiff assigned a multidisciplinary team for Z.S., consisting of G. Webb, L. Marston (a speech/language clinician), M. Cunningham (a special education teacher, licensed to teach children with emotional disturbance) and D. Schuette (a teacher).

On April 25, 1995, the multidisciplinary team was convened to complete a reevaluation of defendant Z.S. At that time, the team concluded that Z.S.'s educational performance was "a bit delayed" in fine motor skills, his receptive and expressive language skills were within normal limits, his reading was at the passing level and his cognitive skills were below average for verbal and average for performance. The team noted that Z.S.'s scores might have been on the low side because of "interfering behaviors, such as refusal to cooperate [and] low frustration levels." Defendant Z.S.'s social behavior continued to be "unpredictable," with Z.S. showing "aggressiveness toward others," such as by "hitting, kicking, throwing, attempting to bite & shoving furniture." Z.S. was "sensitive to touch and noise; has outbursts of uncontrollable behavior" and he is "impulsive & does what he wants to do." Once again, the team identified defendant Z.S. as a child with emotional disturbance in need of special education, although the members determined that Z.S. no longer met the eligibility definition of a child with a speech or language handicap. The team noted that "[Z.S.] is demonstrating behaviors that are considered to be severe, chronic & frequent; behavior problems are evident in the home & school settings; behaviors interfere with his social adjustment & peer & adult relationships, academic performance & intrapersonal adjustment."

On May 1, 1995, the IEP team met and wrote goals and objectives relating to defendant Z.S.'s social behaviors. A Notice of Intent to Place and Consent for Placement was sent to defendant Littlegeorge, identifying Z.S.'s placement in plaintiff's kindergarten program at Spring Hill School in the afternoon and Trinity Lutheran in the morning.

C. 1996 — 97 School Year Evaluations, Individualized Education Programs and Suspension

In the summer of 1996, when defendant Z.S. was almost eight, defendant Littlegeorge arranged for him to be evaluated by Dr. Austin Woodard, Psy.D., at the University of Wisconsin Madison Hospital and Clinics. In a report dated July 23, 1996, Dr. Woodard wrote that Z.S.'s behavior has been "steadily worsening over the past year. He quickly angers and then it abruptly subsides.... In the past, his aggressive behavior primarily occurred with boys, but now he is becoming increasingly aggressive with girls and hitting them." Woodard stated that information from Z.S.'s teachers indicated "significant problems with self-regulation associated with conduct disturbance," that the results of the Achenbach Child Behavior Checklist indicated elevated ratings in the areas of aggressive behavior and social problems and that defendant Littlegeorge's response to the [Attention Deficit and Hyperactivity Disorder] Rating Scale indicated that she "endorses symptoms of mixed type [Attention Deficit and Hyperactivity Disorder], with slightly greater indication of the impulsive-hyperactive form of this condition."

Dr. Woodard reported Z.S.'s Composite Intelligent Quotient score as 105, "supporting the impression of high intellectual potential." He provided the following diagnostic summary:

In summary, the presented history, behavior rating data and the...