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May 25, 1995

RODIRIECUS L., by BETTY H., his natural parent and next friend, Plaintiffs,
WAUKEGAN SCHOOL DISTRICT NO. 60, and ALAN BROWN, in his official capacity as Superintendent of District 60, Defendants.

The opinion of the court was delivered by: ELAINE E. BUCKLO

 Plaintiffs, Rodiriecus L. ("Rodiriecus") and Betty H. ("Betty H."), seek a preliminary injunction enjoining defendants, Waukegan School District No. 60 (the "School District") and Alan Brown, from expelling Rodiriecus pending the outcome of administrative procedures initiated to determine whether Rodiriecus is eligible for special education. Plaintiffs claim that an injunction is commanded by the "stay-put" provision of the Individuals with Disabilities Education Act (the "IDEA" or "Act"), 20 U.S.C. ยง 1415(e)(3), which requires that a child must remain in his current educational placement during the pendency of any proceeding conducted pursuant to the statute. I previously granted plaintiffs' motion for a temporary restraining order. For the reasons stated herein, plaintiffs' motion for a preliminary injunction is granted.


 Rodiriecus, nicknamed Willie, is a thirteen-year old student in the seventh grade. Since October 13, 1994, he has been enrolled in the regular education program at Abbott Middle School in Waukegan School District No. 60. *fn1" Rodiriecus attended Greenwood Elementary School, also in the Waukegan School District, for fourth and fifth grades, and a school in Lake Villa Community Consolidated School District 41 for sixth grade and the beginning of seventh grade.

 On August 4, 1993, Rodiriecus was placed under the guardianship of the Illinois Department of Children and Family Services ("DCFS") after a juvenile court disposition based on his admission of "Robbery and violation of probation (Burglary)." In May, 1994, Patricia Redpath of Park City, Illinois was appointed Rodiriecus' surrogate parent. DCFS placed Rodiriecus in the custody and care of his mother, Betty H., in October, 1994. School records indicate that Rodiriecus was living with his mother by the time he began attending Abbott Middle School.

 From the autumn of 1993 through the present, the Community Alternative Renewal Experience ("CARE"), a private non-school program, has been providing educational and behavioral services to Rodiriecus. In April, 1994, a CARE caseworker requested that Lake Villa School District perform a special education case study evaluation of Rodiriecus. This evaluation was not completed for reasons unknown to the litigants.

 Rodiriecus' January 19, 1995 report card indicates that he received the following grades at Abbott Middle School: an "I" (for Incomplete) and a "B" in Health; two "Bs" in Physical Education; two "Fs" in Science; a "D" and an "F" in Math; a "C" and an "F" in Communications; an "I" in Social Studies; and a "C" in Art. A progress report issued on September 23, 1994 indicates that Rodiriecus was missing several assignments.

 Rodiriecus was cited for misbehavior on four occasions between October, 1994 and February, 1995. First, on November 2, 1994, following an incident of insubordination in sixth period communications class, Rodiriecus was sent to the school's alternative learning center for the balance of the school day. The communications teacher noted in her report of the insubordination that "Willie and his sister, Tiffany, seem so angry at everyone. Treating them with respect and patience doesn't touch them in any way."

 On November 18, 1994, Rodiriecus was suspended for the remainder of the school day after two incidents of insubordination involving Rodiriecus' refusal to comply with faculty members' instructions in gym class and in the hallway. On December 8, 1994, Rodiriecus was again sent to the alternative learning center for the rest of the day because he was too talkative in his communications class. The teacher's referral report stated that "Willie cannot keep himself under control - so that the rest of us can get our work done."

 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, *fn2" 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. *fn3"

 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. *fn4" The School District completed its evaluation of Rodiriecus in April, 1995, concluding that Rodiriecus is not eligible for ...

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