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BOARD OF EDUC. OF DOWNERS GROVE GRADE SCH. DIST. N

August 24, 1995

THE BOARD OF EDUCATION OF DOWNERS GROVE GRADE SCHOOL DISTRICT NO. 58, Plaintiff,
v.
STEVEN L. and CHRISTINE L., individually and as parents of ANDREW L., a minor, Defendants.



The opinion of the court was delivered by: BRIAN BARNETT DUFF

 In this case, we are asked to determine the obligations under the Individuals with Disabilities Education Act, 20 U.S.C. ยง 1400 et seq. ("IDEA" or "the Act"), of the Plaintiff school district ("School District") in providing a child with learning disabilities ("Andrew L.") a "free appropriate education." The School District appeals the decision of the state educational agency's Level II hearing officer which found that under the IDEA, the School District's proposed November, 1992 individual educational program ("IEP") would not appropriately address the Andrew L.'s fifth grade special education needs. The School District contends that the hearing officer misapplied the legal standards under the Act. At issue is whether the School District must provide direct special education instruction in reading to a child with learning disabilities who is receiving consultative services to enhance his regular education reading curriculum, who is performing at grade level in reading, and who is receiving direct special education instruction in other areas. For the reasons stated below, we conclude that the school district does not have to provide the direct reading instruction. The parties filed cross motions for summary judgment. This Court grants the Plaintiff's motion and denies the Defendant's motion.

 I. BACKGROUND

 The following facts are not in dispute. Andrew L. will enter the eighth grade this fall at Herrick Middle School in DuPage County. Since 1992, Andrew L. has been receiving special education and related services in reading and written language. In November, 1992, when Andrew L. was in the fifth grade, the School District proposed reducing Andrew L.'s special education instruction from 225 minutes of direct services to 150 minutes of direct and thirty minutes of consultative services. The seventy-five minute per week reduction in services would come about by Andrew L.'s placement full time in a regular education reading curriculum. He was already in regular education classes in math, science, and social studies. After Andrew L.'s parents objected to the reduction, two administrative hearing officers denied the School District's proposal.

 Testimony and documentary evidence produced at the Level I and Level II hearings described Andrew L.'s assessed special education needs and the School District's response. We reproduce the Level II hearing officer's findings of fact that relate to the proposed change in special education reading instruction.

 
2. According to an evaluation, dated October 15, 1990, by Dr. Marjorie Getz and Dr. Joseph Vaal, "A"'s academic weakness, most significant in the area of reading, is apparently due to both a subtle processing weakness and some attentional difficulties. There was also a neurological diagnosis of attention deficit. In addition, there were found to be some secondary behavior patterns such as avoidance that were indicated might be problematic in the classroom. While school staff report the student is not now easily distractible, he does take medication for hyperactivity.
 
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4. Dr. Joseph Vaal has recommended and the parents also want the school to employ a metacognitive approach which emphasizes the development of skills for understanding how one learns or does not learn. They believe this is the best approach for working with "A"'s areas of deficit.
 
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7. "A" has not been offered the use of a tape recorder as an alternative to notetaking, for discussions or lectures in the classroom, but has used a tape recorder on tests. On several occasions when school staff has offered "A" the use of a tape recorder, he has refused to use it. Staff suggests that "A" is not shy and may not want to use the tape recorder because he does not want to appear different from the other students and that the use of such technologies must be balanced by the need to protect "A"'s self-esteem. On the other hand, Dr. Vaal indicated "A" might not use a tape recorder if he did not understand how much he needs it. Both inferences are reasonable.
 
8. The school district believes termination of direct reading services, substituting monitoring of "A"'s reading instruction in the regular classroom, is warranted by the fact that "A"'s functioning has come up to grade level in some areas, including reading, although in some areas he is still behind and although his capacity is higher than average.

 (Level II Opinion at 5-7).

 We add the following observations from our review of the record. The parents of Andrew L. approved of the content of the April, 1992 IEP that was in effect when the School District proposed the November, 1992 IEP. The proposed November, 1992 IEP would maintain direct services in written language and organizational development that existed in the April, 1992 IEP, and would result in a reduction of reading services only.

 The basis for the statement in finding number two that Andrew L.'s academic weaknesses were most significant in the area of reading was that his performance on several reading achievement tests was inconsistent with his documented congnitive abilities. The test results implied that "Andrew processes information better when he is able to use information from multiple sources simultaneously, as well as being able to use multiple processing channels simultaneously." (R. at 15).

 The unrebutted testimony of School District personnel about why they believed he could succeed in the regular education reading program was that several sets of reading achievement test results showed that Andrew L. was reading at grade level, commensurate with his peers. (R. Level I at 265). They also testified that Andrew L. was achieving A's and B's in all his courses, that he had made consistent gains year to year in his performance on standardized test results so that he was performing at average to above average, and that his special education teacher had observed absolute growth in his abilities. (R. Level I at 218-219). His regular education reading teacher had never seen him regress. (R. Level I at 161). Before receiving special education services, Andrew L. was reading below grade level at first grade third month when he was in the second grade second month. (R. Level I at 289). At the time the IEP modification was proposed, Andrew L. was reading above grade level at fifth grade ninth month when he was in the fifth grade third month. (R. Level I at 289).

 II. DISCUSSION

 The law is well settled concerning a district court's consideration of a motion for summary judgment. Summary judgment is appropriate only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In determining whether summary judgment is appropriate, the court must view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Kennedy v. United States, 965 F.2d 413, 417 (7th Cir. 1992). Summary judgment is a common vehicle for addressing the merits of an IDEA case in the district court. See Hunger v. Leininger, 15 F.3d 664, 669 (7th Cir. 1994). "Judicial review of administrative action, even when the reviewing court is a single federal district judge rather than a panel of appellate judges, is ordinarily conducted on the basis of the record compiled in the administrative proceeding." Id.

 A. Mootness

 We pause briefly to consider a question that neither party has raised, yet that this Court feels it must address. The educational program in dispute is the November, 1992 program The School District created to guide Andrew L.'s education during the 1992-93 school year, his fifth grade year. Andrew L. is about to enter the eighth grade. Is this case moot?

 Other courts have addressed the question under similar circumstances. See, e.g., Murray v. Montrose County School Dist., 51 F.3d 921, 931 (10th Cir. 1995); Sacramento City Unified School District. v. Rachel H., 14 F.3d 1398, 1403 (9th Cir. 1994); Daniel R.R. v. Board of Educ., 874 F.2d 1036, 1040 (5th Cir. ...


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