Elijah Berry and his mother live in the Colfax-Mingo Community School District. They moved to the District just prior to the 1997-98 school year from Missouri. Eli has just completed the 5th grade and is scheduled to attend middle school in the Fall of the 1998-99 school year. Eli has been receiving services for Attention Deficient Hyperactivity Disorder (ADHD) since 1992. As part of these services, Eli has received counseling services at Four Rivers Mental Health Center in Newton. His therapist attended the appeal hearing to testify that because of the incidents giving rise to this appeal, Eli would be better served by attending middle school in another district in the fall.

Appellant filed her open enrollment application with the Colfax-Mingo Community School District at the end of May 1998. The Board met on June 1, 1998, and denied the open enrollment request on the grounds that it was late without statutory good cause. Ms. Berry had written her reasons on the open enrollment application, but they were not discussed at the meeting. She filed an appeal with the State Board of Education on June 4, 1998, and in the meantime requested a closed session with the Board to discuss the issues surrounding her open enrollment application. After detailing her concerns in a closed session meeting with the Board, a Board member responded that since she had appealed to the State Board, they would just wait and see what happened.

The evidence at the appeal hearing showed that the actions complained of by Ms. Berry met the guidelines issued in In Re Melissa J. Van Bemmel, 14 D.o.E. App. Dec. 281(1997). The Van Bemmel criteria guide the exercise of the State Board's discretion under 282.18(18) when an open enrollment application is filed after January 1 because of student harassment. It is undisputed that Ms. Berry and her son were subjected to vulgar language and gestures by certain middle school students on the grounds of the elementary school, and that she reported these incidents to administration.

After hearing the evidence, the hearing panel and the administrative law judge determined that it was in Elijah's best interest to use the State Board's subsection (18) authority to allow Ms. Berry's open enrollment request to be granted.