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MARY P. v. ILLINOIS STATE BD. OF EDUC.

March 20, 1996

MARY P. AND PETER P., on their own behalf and as parents and next friends of MICHAEL P., a minor, Plaintiffs,
v.
ILLINOIS STATE BOARD OF EDUCATION, ROBERT LEINENGER, MARY JANE BRONCATO, GAIL LIEBERMAN, TERRY DAVID, CHARLES DONEGAN, ROGER GARVELINK, and BOARD OF EDUCATION OF DOWNERS GROVE GRADE SCHOOL DISTRICT NO. 58, Defendants.



The opinion of the court was delivered by: LEINENWEBER

 Plaintiffs, Michael P. and his parents, brought an action under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., alleging that defendants, which include the Illinois State Board of Education, Michael's school district, administrators, and teachers, wrongfully denied Michael special education services for his speech impairment. Plaintiffs and defendants now both move for summary judgment.

 I. BACKGROUND

 Michael is a seven-year-old boy who suffers from a speech impairment due to the presence of small nodules on his vocal cords. After Michael initially was diagnosed with this disability in March 1991, his parents requested an evaluation by his local school district to determine his eligibility for special services to be provided by the school. Throughout the next two years, plaintiffs and defendants met at multidisciplinary conferences ("MDC") where plaintiffs presented the recommendations of Michael's own private speech pathologists who asserted the need for services. At the MDCs, defendants steadfastly denied Michael's eligibility for such services. The MDC reports indicate that an Individualized Education Program ("IEP") was never formulated. Admin. R. 838, 857, 867.

 The parties' dispute culminated in a Level 1 Due Process Hearing in May 1993. At the hearing, both parties presented evidence regarding Michael's eligibility for services under the IDEA. Witnesses for both parties generally agreed that Michael's voice was not normal. In particular, all noted that the following qualities appeared at times: hoarseness, squeakiness, fluctuations in pitch, strain, and low volume levels. Admin. R. 534, 668-673, 878-79.

 However, witnesses for each party disputed whether Michael's condition adversely affected his educational performance. Plaintiffs' witnesses described the effect of Michael's condition on his ability and willingness to speak. They cited episodes where Michael's voice rendered him wholly unintelligible and where he was reluctant to offer vocal responses to oral questions. See, e.g., Admin. R. 660-62. The school's witnesses focused on Michael's academic and social aptitude. They cited his ability to participate in all school activities with competency and his popularity among his classmates. See, e.g., Admin. R. 534.

 At the hearing, both parties also raised the issue of what services Michael actually required. Plaintiffs' witnesses proposed that the school provide Michael with thirty minutes of speech therapy per week. Admin. R. 492, 613. The school's witness proposed that 1) school staff be educated on Michael's condition and that they "monitor" Michael's voice to determine if it affects him; and 2) if his condition did not improve, the school would convene an MDC to reevaluate him. Admin. R. 488, 539. The school's witness suggested the formulation of an IEP and direct speech therapy only as a last resort. Id.

 The Level 1 hearing officer made several factual determinations. She found: 1) Michael was performing at an age-appropriate educational level (Admin. R. 1307); and 2) despite his academic performance, Michael's disability was severe enough to affect his educational performance due to its effect on his overall ability to communicate. Admin. R. 1308.

 The Level I hearing officer determined that Michael was eligible for services under the IDEA. Admin. R. 1310. She noted that the standard for eligibility under the IDEA is whether the disability "adversely affects" the student's educational performance. She based her determination on a 1980 Department of Education, Office of Special Education Program ("OSEP") opinion letter. Admin. R. 1308. The letter stated that academic achievement was not the sole benchmark of an adverse affect on educational performance with regard to speech impairment; rather, the opinion of experts should determine whether a speech impairment was severe enough to adversely impact a child's educational performance. Admin. R. 289-292. Guided by the letter, the Level I hearing officer credited plaintiffs' experts' opinions that Michael's disability was so severe as to warrant special services, despite her finding that Michael's speech impairment had no apparent impact on his academic achievement. Admin. R. 1308. She accordingly ordered the school to provide Michael with thirty minutes of speech therapy services per week and to convene a MDC to determine what other services he might require. However, she denied plaintiffs reimbursement for private speech therapy because she found the school had acted in good faith. Admin. R. 1310.

 Defendants appealed this decision in a Level 2 Due Process Hearing. The Level 2 hearing officer did not hold a new evidentiary hearing, but accepted a supplemental opinion from an otolaryngologist, proffered by the school, that a student with Michael's condition did not qualify for services. Supp. Admin. R. ex. 1. This opinion was not based upon an examination of Michael, but rather upon the witness's experience with vocal nodule patients and his review of the Level I record. Id.

 The Level 2 hearing officer reversed the Level 1 hearing officer based on a misapplication of the legal standard to determine eligibility. He held that:

 
The record shows that M.P.'s voice disorder did not interfere with his academic performance. Academically he was equal to or superior to most of his classmates. Furthermore, his social adjustment to his classmates was not adversely affected. The District's proposed IEP was reasonably calculated to enable M.P. to perform academically equal to his classmates. As stated in Rowley the student's IEP should be reasonably calculated to enable the student "to achieve passing marks and advance from grade to grade, if the child is being educated in the regular classroom of the public education system." The District has met its legal obligation to M.P. The present law does not require more.

 Admin. R. 10-11. Though he did not directly address the question of eligibility, the Level II hearing officer implicitly determined that an adverse effect on educational performance must include an effect on age-appropriate academic performance. In essence, he found the two terms synonymous. He also refused to credit the letter from the Office of Special Education, stating that the letter was due no deference because it was contrary to the language of the IDEA and to the Supreme Court's holding in Board of Ed. v. Rowley, 458 U.S. 176, 102 S. Ct. 3034, 73 L. Ed. 2d 690 (1982). Admin. R. 10, 11. Because the Level 1 hearing officer specifically found no effect on age-appropriate academic performance and because the district's "proposed IEP [was] reasonably calculated to enable M.P. to achieve educational benefit," the Level 2 hearing officer reversed. Admin. R. 12-13.

 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.

 III. ANALYSIS

 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 ...


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