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Delavan couple suing to enroll disabled child in virtual school

ELKHORN — The Delavan parents of a 12-year-old who cannot speak or move because of cerebral palsy asked a Walworth County judge this week to reverse decisions that prohibit their son from learning at home by using public school computer courses.

The parents, Daniel and Catherine "Cassie" Hartogh, contend that their son Benjamin was discriminated against because he could not get into a virtual school program.

Representing the family is Jeffrey Spitzer-Resnick, managing attorney for Disability Rights Wisconsin in Madison.

"It's an awful situation, and my son is suffering from it," Cassie Hartogh said in a telephone interview.

The lawsuit blames the Waukesha and Delavan-Darien school districts and the state Department of Public Instruction for Benjamin not getting into a virtual school.

At issue is Cassie Hartogh's open-enrollment application to get Benjamin into Waukesha's virtual school, known as the iQ Academy of Wisconsin. He was denied, and the decision cannot be appealed, according to the DPI.

Benjamin was accepted into Waukesha through open enrollment, provided he attended a brick-and-mortar middle school. He was not allowed into iQ academy.

The decision turned on what's called an individualized education program, or IEP, a required educational strategy for a special education student. The application to virtual school was denied because of his IEP, according to court documents.

Spitzer-Resnick said he doesn't understand how a district could deny virtual school admission based on an IEP. He said it was pure discrimination.

Benjamin would study at home and not require special education status, he said. Besides, the lawyer contends, the IEP was invalid at the time of the application.

Officials from both school districts would not comment on the case.

Cassie said she thought a virtual school would be a perfect educational fit for Benjamin.

Benjamin is highly intelligent, but continuing physical and medical needs prevent him from attending brick-and-mortar schools, she said.

If Benjamin studied at home, Hartogh said she could care for him in a way that his former school, Phoenix Middle School in Delavan, could not.

Hartogh said she became concerned about Benjamin's daily school care last fall.

Benjamin had received special education with a full-time aide. Last fall, Walworth County eliminated funding for full-time aides, leaving it up to the school district to finance Benjamin's care, Hartogh said.

In October, she pulled her son out of school for safety and medical reasons because the aides had become part-timers, Hartogh said.

According to the lawsuit:

On Feb. 21, Hartogh officially withdrew Benjamin from the district, and seven days later the district informed Hartogh that her son's IEP needed reevaluation. In early March, Hartogh refused the reevaluation, and in late April Hartogh officially revoked her son's IEP.

Meanwhile, Benjamin's application for virtual school was turned down.

The Waukesha district said its virtual school was unable to implement Benjamin's IEP.

But Benjamin no longer had an IEP, and the district had no grounds to deny him entry to the virtual school, Hartogh said. The Appleton School District also denied Benjamin's entrance to its virtual school for the same reason.

"He really a smart kid, but they don't see it because he's not at the school," she said.

"I had envisioned him going to college. Now, I don't know."