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
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.
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).
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)).
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