On January 25, 1995, Rodiriecus was again cited for misbehavior when a teacher and a school security guard found him in possession of a master key to the school building. Rodiriecus was turned over to the custody of the Waukegan police. On January 26, 1995, Billy Franklin, the Assistant Principal of Abbott Middle School, suspended Rodiriecus for ten school days for alleged multiple thefts.
On February 15, 1995, DCFS requested a special education case study evaluation of Rodiriecus based on its opinion that Rodiriecus suffers from a behavior disorder. The next day, Rodiriecus' attorneys delivered to the School Board a letter requesting a Level I due process hearing. In a letter dated February 17, 1995, Myron T. Dagley, Associate Superintendent for Special Education Services, responded that the Waukegan School District had not known of DCFS' involvement or its right to act on behalf of Rodiriecus. He refused to consider DCFS' request for an evaluation, saying that only a surrogate parent can authorize an evaluation when a public agency is a child's guardian.
Following Rodiriecus' ten-day suspension from school, the School District sought to expel Rodiriecus for the remainder of the school year in connection with the alleged multiple thefts. An expulsion hearing was scheduled for February 16, 1995 but was continued to the following day after Rodiriecus' counsel objected to being denied access to Rodiriecus' academic records.
Over objection by Rodiriecus' counsel,
the hearing resumed on February 17, 1995. The hearing officer submitted a summary of the evidence presented at the hearing to the Board of Education. The Board of Education convened a special meeting on February 20, 1995 to consider Rodiriecus' case and voted to expel Rodiriecus for the balance of the 1994-95 school year.
Notwithstanding the Board's decision to expel Rodiriecus, the School District decided to perform a special education case study evaluation in response to DCFS' request. The Illinois State Board of Education appointed Mary Lou Berger as surrogate parent. At the School District's request, Betty H., Rodiriecus' mother, also executed a parental consent for special education testing.
The School District completed its evaluation of Rodiriecus in April, 1995, concluding that Rodiriecus is not eligible for special education and related services. Rodiriecus is obtaining an independent evaluation, as authorized by the Act and the accompanying regulations.
Rodiriecus has also requested a Level I due process hearing. The parties have selected the hearing officer, but a hearing date has not been set.
The Individuals With Disabilities Education Act
The Individuals With Disabilities Education Act, 20 U.S.C. § 1400 et seq., was enacted "to ensure that children with disabilities receive an education that is both appropriate and free." Dell v. Board of Education, Township High School District 1113, 32 F.3d 1053, 1055 (7th Cir. 1994) (quoting Florence County Sch. Dist. Four v. Carter, 126 L. Ed. 2d 284, 114 S. Ct. 361, 365 (1993)). The Act provides federal funds to "assist State and local efforts to provide programs to meet the educational needs of handicapped children in order to assure equal protection of the law." 20 U.S.C. § 1400(9). In return for receiving federal money, states must adhere to IDEA's procedures assuring disabled children an education at public expense. 20 U.S.C. § 1412; Dell v. Board of Education, Township High School District 1113, supra, 32 F.3d at 1055 (citing Hendrick Hudson Dist. Board of Educ. v. Rowley, 458 U.S. 176, 188-89, 73 L. Ed. 2d 690, 102 S. Ct. 3034 (1982)).
Section 1415 of IDEA contains detailed procedural safeguards to guarantee children with disabilities an appropriate education. These safeguards include the right to educational evaluations of the child and to formal Level I and Level II hearings to challenge the outcome of the evaluations. Section 1415(e)(3), the "stay-put" provision, is the procedural check at issue in this case. That provision states that during the pendency of any proceedings initiated under the Act, unless the State or local educational agency and the parents or guardian of a child otherwise agree, "the child shall remain in the then current educational placement." 20 U.S.C. § 1415(e)(3).
Plaintiffs contend that during the pendency of the independent evaluation, the Level I due process hearing, and any further due process administrative hearings, Section 1415(e)(3) prohibits the School District from expelling Rodiriecus because an expulsion for more than ten days is a change of placement.
The Applicability of the Act
Defendants argue that IDEA, including Section 1415(e)(3), does not apply to Rodiriecus because he has not yet been identified as a disabled child. They also argue that his "then current educational placement" at the time he invoked the IDEA process was "suspended" or "expelled."
In passing IDEA, Congress found that
(1) there are more than eight million children with disabilities in the United States today;