asked for the reinstatement of the Level I order with the caveat that plaintiffs be reimbursed for all previous speech therapy and receive any other equitable relief. Defendants responded, arguing that the Level 2 hearing officer correctly interpreted the IDEA to require that a disability have an adverse academic impact before a student is eligible for services.
II. STANDARD OF REVIEW
Review of IDEA due process hearings involves a mixed question of law and fact. See Board of Ed. v. Illinois St. Bd. of Ed., 41 F.3d 1162, 1166-67 (7th Cir. 1994); Oak Park and River Forest High Sch. v. Illinois St. Bd. of Ed., 886 F. Supp. 1417, 1419 (N.D. Ill. 1995). The court must give "due weight" to all factual determinations, but review all legal conclusions de novo. Id. In addition, summary judgment is proper where there are no factual disputes and where the court is asked only to resolve issues of law. LTV Steel Co. v. Northwest Eng'g & Constr., Inc., 41 F.3d 332, 334 (7th Cir. 1995); American Jewish Cong. v. City of Chicago, 827 F.2d 120, 123 (7th Cir. 1987).
Because both parties concede the factual record of the proceedings below, the court's main task is to ensure the application of the correct legal standard to the salient facts. Specifically, the court must determine if a student with a speech impairment is eligible for special services under the IDEA when his disability does not impact his academic achievement.
The purpose of the IDEA is to ensure that "all children with disabilities have available to them a free and appropriate education." 20 U.S.C. § 1400(c); 34 C.F.R. § 300.1. The issues raised in the present case are whether plaintiff qualifies as a child with a "disability" and, if so, what relief is warranted.
The process by which a student is granted special education services is by no means simple. Generally, the student's family, teachers, administrators, and experts all participate to determine if the student is eligible for services and, if so, which services are appropriate.
The first step is to determine eligibility based upon statutory criteria and expert opinion. Generally, a multidisciplinary conference ("MDC") convenes to examine data and determine eligibility. See Ill. Admin. Code Tit. 23, § 226.5 (1995). To be eligible for special education, the student must fit the statutory definition of a "child with a disability." 20 U.S.C. § 1401(a)(1)(A); see also Doe v. Belleville Public School, 672 F. Supp. 342, 344 (S.D. Ill. 1987) (applying statutory criteria to examine eligibility); Timothy W. v. Rochester N.H. High School Dist., 875 F.2d 954, 961 (1st Cir.) (same), cert. denied, 493 U.S. 983, 110 S. Ct. 519, 107 L. Ed. 2d 520 (1989); Yankton Sch. Dist. V. Schramm, 900 F. Supp. 1182, 1190 (D.S.D. 1995) (same); Doe v. Board of Ed., 753 F. Supp. 65, 69-70 (D. Conn. 1990) (same). All of the statutory definitions require that the disability "adversely affect the child's educational performance." See 34 C.F.R. § 300.7(b)(1-13); Doe, 753 F. Supp. at 69; Doe, 672 F. Supp. at 344.
The C.F.R. specifies evaluation procedures to be used for determining whether a child fits the statutory definition of a "child with disabilities." See 34 C.F.R. §§ 300.7(a)(1), 300.500(b), 300.530-300.534. These procedures require the examination of "a variety of sources, including achievement tests, teacher recommendations, physical condition, social or cultural background, and adaptive behavior." 34 C.F.R. § 300.533(a)(1).
If a student is deemed eligible at the MDC, then the participants determine precisely what services are appropriate. These decisions are outlined in an Individualized Education Program ("IEP"). See 34 C.F.R. §§ 300.340-300.350; Ill. Admin. Code Tit. 23, §§ 226.5, 226.562 (1995).
If the parents disagree with the MDC's determination of eligibility or the formulation of the IEP, they may challenge these decisions at an impartial "due process" hearing. 20 U.S.C. § 1415(b); 34 C.F.R. §§ 300.500-300.515; Ill. Admin. Code Tit. 23, §§ 226.605-226.698 (1995). At the due process hearing, both parties may raise issues regarding the student's eligibility, as well as any proposal for services. Ill. Admin. Code Tit. 23, § 226.605 (1995). The hearing officer is empowered to determine issues of eligibility and appropriate services in light of the evidence presented, and he may order the provision of such services if he determines that the student is eligible. Ill. Admin. Code Tit. 23, § 226.675 (1995).
Plaintiffs claim that Michael is eligible for services under the IDEA because of his speech impairment. The C.F.R. defines speech impairment as "a communications disorder such as stuttering, impaired articulation, a language impairment, or a voice impairment that adversely affects a child's educational performance." 34 C.F.R. § 300.7(b)(11) (1995). The Illinois Administrative Code defines speech impairment as "deviations of speech and/or language processes which are outside the range of acceptable deviation within a given environment and which prevent full social or educational development." Ill. Admin. Code Tit. 23, § 226.552(c) (1994).
Plaintiffs argue that speech impairments are different from other disabilities and require a different eligibility analysis. As noted above, the procedures to determine whether a student is a "child with a disability" and thus eligible for services under the IDEA is based on an examination of "a variety of sources, including achievement tests, teacher recommendations, physical condition, social or cultural background, and adaptive behavior," 34 C.F.R. § 300.533(a)(1). The inclusion of "achievement tests" implies that academic achievement may be a component of any determination that a disability "adversely affects a child's educational performance." The issue is whether it is required.
Plaintiffs assert it is not required -- at least for speech impairments -- by relying on the advisory note which follows § 300.533(a)(1) and on an agency letter interpreting the same. The advisory note attempts to clarify the criteria for evaluating speech-impaired students:
The [school] would not have to use all sources in every instance. The point of the requirement is to ensure that more than one source is used in interpreting evaluation data and in making placement decisions. For example, while all of the named sources would have to be used for a child whose suspected disability is mental retardation, they would not have to be necessary for certain other children with disabilities, such as a child who has a severe articulation impairment as his primary disability. For such a child, the speech-language pathologist, in complying with the multiple source requirement, might use: (1) A standardized test of articulation, and (2) observation of the child's articulation behavior in conversational speech.
34 C.F.R. § 300.533 note (1995). The comment acknowledges that every criterion is not applicable to the evaluation of every disability, and more specifically, in the evaluation of a student with a communicative speech disorder, such as plaintiff's, focus on an objective level of speech ability and the observation of speech behavior is paramount.
The Office of Special Education and Rehabilitative Services (formerly entitled Office of Special Education Programs or "OSEP"), which is the principal agency empowered to administer the IDEA, 20 U.S.C. § 1402, abides by the same interpretation. In a 1980 letter, Assistant Secretary Edwin Martin articulated OSEP's position on the procedures to determine which speech impairments were eligible for services under the IDEA. He stated:
It is clear that, in establishing the existence of a speech/language impairment that is "handicapping" in Part B terms, a professional judgment is required. The basis for that judgment is the child's performance on formal and/or informal measures of linguistic competence and performance, rather than heavy reliance on the results of academic achievement testing. The impact of the child's communicative status on academic performance is not deemed the sole or even the primary determinant of the child's need for special educational services. It is the communicative status - and professional judgments made in regard to assessments of communicative abilities - which has overriding significance.