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PETROVICH v. CONSOLIDATED HIGH SCH. DIST. # 230

March 24, 1997

John and Margaret PETROVICH, Plaintiffs,
v.
CONSOLIDATED HIGH SCHOOL DISTRICT # 230, Palos Hills, Illinois, Defendant.



The opinion of the court was delivered by: COAR

 This matter is before the court on the parties' cross motions for summary judgment on plaintiffs', John and Margaret Petrovich's, petition for attorneys' fees and costs pursuant to 20 U.S.C. § 1415 of the Individuals with Disabilities Education Act. For the reasons stated in this memorandum opinion, defendant's motion is granted and plaintiffs' motion is denied.

 Background

 Plaintiffs John and Margaret Petrovich ("Petrovich"), on their own behalf and the behalf of their minor son, Anthony Petrovich, filed this action against Consolidated High School District # 230 ("defendant") to recover attorneys' fees and costs as a "prevailing party" pursuant to section 1415(e) of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1415(e). (Complaint ("Comp."), at 1). At all relevant times, plaintiffs were residents of the defendant school district. (Plaintiffs' Local Rule 12(M) Statement of Undisputed Material Facts ("12(M)") P 1). Defendant is a public school district and body politic required to provide public education to all eligible students within its boundaries. (Id. P 2).

 When he entered the defendant school district in his freshman year of high school in the fall of 1991, Anthony was considered a regular education student. (Defendant's Local Rule 12(N) Statement of Undisputed Facts ("12(N)") PP 1, 2). Prior to entering high school, Anthony received services for learning disabilities in another public school district. (12(M) P 4). Anthony's special education records were not transferred to his new high school, and the defendant was not made aware of Anthony's prior learning disabled services or of any need for them to continue during his high school years. (Plaintiffs' Response to Defendant's 12(N) Statement of Additional Facts ("Pl. Resp. to 12(N) Addt'l Facts"), Jim Droy Dep., Ex. D, at 148-49).

 In February 1995, during the second semester of his senior year, Anthony was expelled for one year for drug possession. (12(N) P 3). At the time of his expulsion, Anthony had two classes to complete in order to graduate, an English class and a physical education class. (12(M) P 6). On August 7, 1995, plaintiffs, through their attorney, sent a letter to defendant school district stating that they would "file a request for a special education hearing to secure proper transition services and evaluations, as well as I.D.O.R.S. [Illinois Department of Rehabilitative Services ("D.O.R.S.")] involvement," unless the school district would lend cooperation and assistance in this regard. (Plaintiffs' Reply to Defendant's Response to Motion for Summary Judgment ("Pl. Reply"), Ex. A, at 2). Plaintiffs' counsel stated that she would assume the district was not "amenable to a settlement" and proceed accordingly if the district did not respond favorably to plaintiffs' counsel by August 14, 1995. (Id.).

 On August 18, 1995, defendant responded to plaintiffs' counsel by letter asking for clarification of the relief requested. (12(N), Ex. B, at 53-54). The letter was received by plaintiffs' counsel on August 21, 1995, three days after she filed a request for an administrative hearing. In the request for an administrative hearing, plaintiffs' counsel asked that the hearing officer make the following conclusions with respect to the defendant's conduct toward Anthony:

 
1. Improper termination from L.D. services upon entrance to High School based on inadequate evaluation; improper transition from L.D. services.
 
2. Failure to monitor and re-evaluate when grades/achievement continued to decline.
 
3. Failure to develop IEP and/or "504" plan to address L.D. and Attention Deficit related needs; failure to develop vocational high school transition plan, and invite Ill.D.O.R.
 
4. Improper discipline measure of expulsion for behavior related to disability.

 (12(M), Addt'l Facts, P 11). Although plaintiffs had filed a request for an administrative hearing, defendant conducted an evaluation of Anthony on October 10, 1995. (12(M) P 9). The parties were scheduled to meet on October 12, 1995 to discuss the results of Anthony's evaluation with a D.O.R.S. representative. (Id. P 10). However, the meeting was later canceled as a result of a disagreement between the parties regarding who would attend the meeting and whether plaintiffs would waive attorneys' fees pursuant to a proposed settlement agreement. (12(N) P 10). The meeting was not rescheduled.

 The administrative hearing requested by plaintiffs was convened on November 1, 1995. (12(M), Ex. A). During the opening statements at the administrative hearing, plaintiffs' counsel requested that defendant provide transition services for and then graduate Anthony. (Plaintiffs' Motion for Summary Judgment ("Pl. Mot. Summ. Judg."), Ex. H., at 29-30). On November 13, 1995, the hearing officer concluded as a matter of law that the school district had not committed any of the four statutory violations alleged by plaintiffs in their written request. (Id.) Moreover, the hearing officer held that the school district: (1) did not inappropriately terminate services; (2) was never responsible for transition services; (3) was never responsible for developing a vocational plan; (4) was never obligated to develop an IEP; and, (5) did not improperly expel Anthony for his drug possession in January 1993. (Id.) However, the hearing officer did find, as a matter of fact, that Anthony qualified as having a learning disability in the areas of Reading Comprehension, Math, and Written Language. (12(N), Ex. A, pt. III, # 15). In addition, the hearing officer entered the following orders:

 
1. School district will set up and have a representative at a meeting with an adult D.O.R.S. counselor to help the student apply for D.O.R.S. services.
 
2. Once the student is under the D.O.R.S. programming, or has been turned down for D.O.R.S. services, or he requests that he graduates, or on the date of March 1, 1996, the ...

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