Delavan child with disabilities in educational limbo

Published on: 6/9/2011

A Delavan couple is appealing a decision by the state Department of Public Instruction to support the Waukesha School District's placement of their son in a bricks-and-mortar school instead of the virtual school they requested because the boy has cerebral palsy and speech impairments.

"We consider this straight-out discrimination, because he once had an IEP (Individualized Education Plan)," said Jeffrey Spitzer-Resnick, the attorney for Disability Rights Wisconsin who filed a petition for review in Walworth County Circuit Court.

The 12-year-old boy no longer has an IEP for special education services and could attend the online school easier than a bricks-and-mortar school because of his physical disabilities, Spitzer-Resnick said. His mother was interested in the virtual school because it would offer a curriculum and structure; she currently home-schools the boy.

"He does have severe physical disabilities, but he's quite smart," Spitzer-Resnick said.

If the court does not reverse the DPI's decision and order the Waukesha School District to place him in the iQ Academy - the Waukesha district's virtual school - Spitzer-Resnick said he would take it to federal court as a violation of the Americans with Disabilities Act.

The boy attended classes in the Delavan-Darien School District until last October, when he left for medical reasons, according to the court petition. After the boy's parents decided to officially withdraw him from school in February because he was being home-schooled, the district notified the parents that the boy must be tested so his IEP could be re-evaluated, as required by federal education law, to maintain his eligibility for special education services.

If they didn't agree to testing, district officials told them, the boy would be treated as a student without an exceptional need if they applied to another school district for enrollment. The boy's mother declined the testing, and his special education services stopped in April.

The parents, meanwhile, applied for enrollment in the Waukesha School District next school year under the open-enrollment program, and requested their son be assigned to the iQ Academy. Spitzer-Resnick said at the time the boy's application was submitted to Waukesha the boy was still technically under an IEP.

The district sent a letter to the parents, acknowledging receipt of the application. It stated that the district attempts to accommodate parent requests, but that assignments to a specific school or program were not guaranteed.

The Waukesha district later notified the parents that it could not assign the boy to iQ Academy because the virtual school setting could not meet his special education needs, according to court records. The parents appealed to the state because their son no longer had a formal plan for special education, and they felt he did not need any special assistance to attend a virtual school, Spitzer-Resnick said.

Officials at the DPI and the Waukesha School District declined to comment.