COURT OF APPEALS DECISION DATED AND FILED February 28, 2008 David R. Schanker Clerk of Court of Appeals |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL
from an order of the circuit court for
Before Dykman, Lundsten and Bridge, JJ.
¶1 PER CURIAM. The Oconomowoc Area School District (OSD) appeals from an order dismissing its complaint against several defendants, including the State Superintendent of Public Instruction. The dispute is over who must pay the education expenses of B.W., a disabled individual who lived in a community based residential facility in Oconomowoc and attended school there, but whose family home was in another school district in a different county. The trial court concluded that under applicable law, OSD is responsible for B.W.’s education costs. We agree and therefore affirm.
¶2 The trial court decided the case on the pleadings. On review, we therefore accept all facts
alleged in the complaint as true. See
¶3 In October 2004, two days before B.W.’s eighteenth birthday,
the Winnebago Circuit Court appointed his father as his guardian. When B.W. turned eighteen, his placement at
the residential care center ended, and his guardian/father allowed him to
transfer to a community based residential facility in Oconomowoc. He continued to attend the ODTC school. However,
¶4 There is no dispute that, pursuant to Wis. Stat. §§ 115.758-115.90, B.W. was a child with disabilities entitled to an education at public expense consistent with his or her needs, including placement in a private school. There is also no dispute that the ODTC school was an appropriate educational facility for B.W. The only dispute is over who must pay for the schooling he received there after his eighteenth birthday.
¶5 Under Wis. Stat. §§ 115.76(10)
and 115.77(1m)(b), the “local education agency,” is responsible for providing
the disabled child with a free, appropriate public education as required by
state and federal law. In this case,
because B.W. was not in a State-operated facility, the local education agency
was the school district within which he “resided.” § 115.76(10). Under Wisconsin’s long-standing rule, a child
resides in a district if the child actually lives there and the child’s primary
reason for living there is other than obtaining an education in that
district. State ex
¶6 OSD agrees that B.W. resided at the community based
residential facility for reasons other than attending school in
Oconomowoc. However, OSD contends that Thayer
does not apply to B.W. because: (1) he is beyond the age of compulsory
school attendance; (2) he is a person with disabilities; (3) he lived
in a residential care facility; (4) he had the option of attending a
public school while in Oconomowoc; and (5) his father did not enroll him
in ODTC in order to obtain a free public education. We have considered these distinctions and
conclude they make no difference. Thayer
remains the bright line rule for determining school cost responsibility in
¶7 OSD also cites
¶8 We conclude, as did the trial court, that under the applicable law OSD is the district within which B.W. resided and must therefore bear the cost of his education at ODTC after his eighteenth birthday.
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.