Grafton district appeals ruling in special-ed case

With hundreds of thousands of dollars at stake, the Grafton School District last week filed a lawsuit asking a federal court to overturn the decision of a Wisconsin administrative law judge who ordered the district to pay the private boarding school tuition of a student with learning disabilities because it failed to properly educate him.

Administrative Law Judge Sally Pederson last month ruled that the School District did not provide the student a free and appropriate public education as is required by federal law and must pay his tuition for last school year and this year — a total of $155,850 — at Brehm Preparatory School, a boarding school for students with learning disabilities in southern Illinois, as well as travel expenses.

But in its lawsuit filed in U.S. District Court in Milwaukee last week, the district’s

team of three lawyers from von Briesen & Roper argue that the district did, indeed, provide a free and appropriate public education for the student during the time in question and that Pederson erred in several ways by concluding otherwise. 

The district is asking a federal judge to stay Pederson’s order while its case is pending, then overturn her decision.

The student’s lawyer, Jeffrey Spitzer-Resnick, a Madison civil rights attorney and special education law expert, called the district’s decision to appeal “foolhardy.”

“The district has every right to appeal, but that being said, I consider it to be, quite frankly, foolhardy,” Spitzer-Resnick said. “The judge made a really sound decision. It was lengthy, well-detailed and supported by the record.

“And to my knowledge, this judge has never had a decision reversed.”

The district’s decision to challenge the administrative law judge’s decision exposes it to significantly higher costs, Spitzer-Resnick said.

“So now (the district’s attorneys) are to charge the district that much more,” he said. “And when we win, the district is also going to have to pay me more.”

According to the student’s mother, the district owes her $221,465, which includes two years of her son’s tuition, $9,614 in travel expenses and $55,000 in attorney’s fees. 

About a month after the Pederson’s decision, the School District offered to pay the student’s mother $180,000 to settle the case and not appeal. But because the amount of money the district offered was significantly less than the woman’s expenses, the offer was refused, Spitzer-Resnick said. 

Noting that the woman has had to borrow against her home to pay her son’s tuition, Spitzer-Resnick said she will also seek reimbursement from the district for what promises to be a considerable amount of interest accruing on the loan while the federal case is being decided. 

“I’ve advised my client that it may be a year before we have a decision,” he said. “We fully expect the district will have to pay considerably more.”

Grafton School Supt. Jeff Nelson declined to comment on the case. 

Pederson’s decision last month was a victory for the student’s mother who for years battled the district over her son’s education before withdrawing him from Grafton High School in August 2018 just before the beginning of his junior year in high school and enrolling him in Brehm Preparatory School.

The woman, who filed a request for a due process hearing with the Wisconsin Department of Public Instruction in January, said the Grafton School District failed to provide her son with adequate special education services, then tried to “slide him through the system” by having teachers essentially complete writing assignments for him and giving him passing grades in high school courses that required writing when his ability to write was that of a third or fourth-grader.

The district defended the techniques used by the student’s teachers as accepted educational strategies and in its lawsuit contends that the student had made progress by some measures and was on track to graduate from high school.

The student, Pederson noted in her decision, is smart, with an IQ score in the high-average level, and excels in math and science. But diagnosed with attention and anxiety disorders, the student, who according to experts exhibits signs of dysgraphia, a neurological disorder affecting written expression, and dyslexia, struggles with writing as well as organization.

At issue is whether the district provided  the student with an individualized education program, or IEP, which is required for most students with learning disabilities and must be reviewed annually, and services that provided him a free and appropriate public education.

Citing a 2017 U.S. Supreme Court decision that requires school district to draft IEPs designed to enable students with learning disabilities  to make more than just minimal progress, Pederson concluded the Grafton School District fell short of that requirement.

“Based on the credible evidence on the record, I cannot conclude that the student’s IEP was reasonably calculated to enable him to make progress appropriate in light of his unique circumstances,” Peterson wrote.

In its lawsuit, however, the district argues that the student’s IEP was “reasonably calculated to enable (him) to achieve passing marks and advance from grade to grade” and cites a court decision that found a school district “is not required to provide the best possible education.”

The lawsuit also contends the district should not have to pay the student’s private school tuition because his mother’s unilateral decision to place him there was unreasonable and Pederson erred in deciding the school was appropriate for him.