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WILLIAM S. v. GILL

September 22, 1983

WILLIAM S., ET AL., PLAINTIFFS,
v.
DONALD GILL, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Shadur, District Judge.

MEMORANDUM OPINION AND ORDER

William S. ("William"), a handicapped minor child, by his mother and next friend, Geraldine S. ("Geraldine"), has filed a Second Amended Complaint (the "Complaint") against various state and local educational officials and entities.*fn1 William's two-count Complaint challenges defendants' concepts and practice of distinguishing between "educational" and "noneducational" components of the "related services" needed to enable handicapped students to perform adequately in school. Count I is a recently-certified class action seeking declaratory and injunctive relief, while Count II is an individual money claim.

Defendants have now moved (1) alternatively (a) under Fed.R.Civ.P. ("Rule") 56 for summary judgment on William's individual claims in Counts I and II or (b) for reconsideration of class certification of Count I and (2) for recovery of attorneys' fees and costs incurred in briefing the present motions and taking Geraldine's deposition. For the reasons stated in this memorandum opinion and order, this Court grants defendants' summary judgment motion in part but denies their other motions.

Statutory and Regulatory Background*fn2

As Illinois' "state educational agency," ISBE is responsible for insuring that:

    1. all Illinois agencies (including local school
  districts) that provide special education or related
  services comply with EAHCA (20 U.S.C. § 1412(6),
34 C.F.R. § 300.600(a)(2)) and
    2. all handicapped children living in Illinois
  receive a free appropriate public education
  (20 U.S.C. § 1412(1) and (6), 34 C.F.R. § 300.600(a)(1)).

ISBE is not relieved from its ultimate responsibilities in that area by the possibility of financial or in-kind assistance from other government or private agencies. 34 C.F.R. § 104.33(c)(1). Illinois' School Code imposes parallel obligations on ISBE. See Ill.Rev.Stat. ch. 122, §§ 14-7.02, 14-8.01.

William's Complaint challenges defendants' policy (the "Policy") of disclaiming any obligation to furnish "related services" that primarily serve the handicapped student's noneducational needs, even when such services are also critical to his or her ability to benefit from an education. That disclaimer had its genesis in the August 1980 Memorandum of Understanding (the "Memorandum") executed by ISBE and several other state agencies that provide noneducational assistance to disabled individuals. That Memorandum (1) defines categories of handicapped children whose needs are considered primarily "noneducational" and (2) absolves ISBE and local school districts from any financial responsibility as to the noneducational facets of residential placements, regardless of whether another state agency supplies the requisite funding.

Facts*fn3

William is a ten-year-old suffering from severe multiple handicaps: moderate to profound bilateral hearing loss, mild to moderate functional mental retardation and spastic quadriplegia affecting his left side. William suffers up to three to four grand mal seizures per day, though he is on medications that at least to some degree suppress the outward symptoms of the seizures (Geraldine Dep. 96-97, 103).

In 1977 William was living with Geraldine in School District 25, Arlington Heights, Illinois ("District 25"). Because of its inability to provide a program appropriate to William's needs, District 25 agreed to fund his placement at St. John's School for the Deaf in Milwaukee for the 1977-78 academic year (Geraldine Dep. 24). When the placement at St. John's proved highly successful for William, the placement and District 25's funding continued for another year. During 1978 and early 1979 William made considerable progress at St. John's in developing sign language and self-help skills (Geraldine Dep. 25).

All went well until Geraldine moved from Arlington Heights to Barrington, Illinois, within District 220. In June 1979 District 220 told Geraldine it would not pay for William's placement at St. John's, insisting that William participate in a public school program (Geraldine Dep. 26-29).

During that summer William attended a summer school program operated by SEDOL, a cooperative serving District 220 among others. Once William left St. John's he regressed considerably, quickly forgetting his toilet training and becoming very aggressive and destructive at home. During the 1979-80 academic year William attended Hawthorne School ("Hawthorne"), a special education school served by SEDOL. William was assigned to Hawthorne's Hearing Impairment Program, in which he was the only deaf child afflicted with other disabilities (Geraldine Dep. 40).

Throughout this period William's behavior both at home and at school continued to worsen, though in strikingly different ways. At home William "signed up a storm" and was frequently disruptive and violent (Geraldine Dep. 57). At Hawthorne William was exceedingly passive, rarely attempting to communicate with his teacher or peers by sign language (Geraldine Dep. 41). Nor did William benefit much from classroom instruction, for his teacher, Mary Bernardi, had no experience in dealing with multiply handicapped deaf children and had to devote most of her attention to her other pupils who were appreciably more advanced scholastically than William (Geraldine Dep. 141-42).

Extremely frustrated with William's lack of progress at Hawthorne and her inability to cope with him at home, Geraldine tried to place William in a number of residential facilities. In January 1980 she explored the possibility of enrolling William at the Glenkirk School for the Handicapped in Lake Forest, operated by the Glenkirk Association for Retarded Citizens ("Glenkirk Association"). However Glenkirk official Pat Beaurline ("Beaurline") rejected William's application because the staff was ill-equipped to handle William's deafness and behavior disorders (Geraldine Dep. 162). Geraldine then investigated other possible programs, including Michael Reese Hospital, Chicago Read Mental Health Center, the Misericordia Program and the Augustana Nursery, none of which was suited to William's needs.

After those abortive efforts Geraldine became convinced William should be placed in a program with integrated residential and educational components. By early June 1980 Geraldine had identified two candidates: The Institute of Logopedics (the "Institute") in Wichita, Kansas and The Bancroft School North in Owlshead, Maine. Anticipating the reluctance of school authorities to fund such out-of-state placements, Geraldine wrote to 12 doctors and psychologists to solicit their endorsement of those alternatives (Geraldine Dep. 143-47).

On June 30 Geraldine attended a meeting with Illinois Department of Mental Health and Developmental Disabilities ("IDMHDD") representative Chris Moore ("Moore") and District 220 official Rhoda Diamond ("Diamond") to discuss the possibility of obtaining financial assistance from IDMHDD to find a residential placement for William. Two specific alternatives were broached: placing William in a foster home or at a facility ("Glenkirk Campus") the Glenkirk Association had just taken over three weeks earlier (Spector Aff. ¶ 2(a)). Moore and Diamond advised Geraldine to arrange an interview with Beaurline to determine the feasibility of placing William at Glenkirk Campus (Geraldine Dep. 168). Several facets of the proposed placement at Glenkirk Campus should be noted:

    1. It featured a full array of therapeutic
  services, comparable to those furnished at the
  Institute (Geraldine Dep. 176-80, 192-93).
    2. Because Glenkirk Campus offered no educational
  services, William would have continued to attend
  Hawthorne's Hearing Impairment Program (requiring a
  20-mile round trip bus ride (Def.Mem.Ex.D)).
    3. William would have been given a sign interpreter
  for the portion of the day he would spend at Glenkirk
  Campus (Beaurline Aff. ¶ 4, Spector Aff. ¶ 2(c)).
    4. Glenkirk Campus housed some hearing impaired
  children and a "great number of mildly or moderately
  retarded,

  behavior disordered children" (Spector Aff. ¶ 2(b)
  and (4)) — children with handicaps similar to
  William's.

At the meeting Geraldine expressed her lack of enthusiasm toward the Glenkirk Campus/Hawthorne offering. Her primary objection was that the educational and residential components of such an arrangement would be bifurcated (Geraldine Dep. 138). Her skepticism also stemmed from her mistaken belief that (1) the bus commute between the two facilities would be one and one-half hours and (2) Glenkirk Campus was not yet operational (Geraldine Dep. 139, 140). Despite her reservations, on July 9 Geraldine signed a IDMHDD form authorizing the release of her son's confidential clinical records to Glenkirk Association officials to determine whether Glenkirk Campus would be suitable for William (Geraldine Dep. 164-65, Moore Aff. ¶ 3).

Eleven days later William, accompanied by Geraldine, visited the Institute for a battery of tests to determine his eligibility for placement there. On July 23 the Institute confirmed its willingness to accept William. Very impressed with the caliber of Institute's services, Geraldine was "predisposed" at that point to send William there (Geraldine Dep. 172-73).

Two days later William was admitted to IDMHDD's Regional Intake and Habilitation Program ("RIHAP") in Tinley Park, Illinois so his multidisciplinary staff team could develop a "habilitation" plan for him (Geraldine Dep. 149). That RIHAP staffing resulted in an August 19 consensus decision to place William in a foster home rather than an institution (Geraldine Dep. 149-50). On August 27 Geraldine formally applied to IDMHDD for an Individual Care Grant ("ICG") to fund whatever residential placement was secured for William (Geraldine Dep. 165-67, Moore Aff. ¶ 4).

On September 15, 1980 District 220 held a multidisciplinary conference to consider William's request for residential placement. Its multidisciplinary team concluded:

    1. William was a qualified handicapped child
  eligible for special education services.
    2. Residential placement in a community "home-like
  environment" was necessary for William to achieve any
  ...

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