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Doe v. Board of Education of Oak Park & River Forest High School District 200

May 27, 1997

JOHN DOE, BY AND THROUGH HIS PARENTS AND NEXT FRIENDS AND THE CLASS OF ALL OTHERS SIMILARLY SITUATED, JANE DOE, NEXT FRIEND AND JOE DOE, NEXT FRIEND,

PLAINTIFFS AND COUNTER-DEFENDANTS-APPELLANTS,

v.

BOARD OF EDUCATION OF OAK PARK & RIVER FOREST HIGH SCHOOL DISTRICT 200, NANCY SMILEY, DONALD OFFERMANN, STEPHEN C. BRUNER, BOTH IN THEIR OFFICIAL CAPACITIES AND AS INDIVIDUALS, ET AL.,

DEFENDANTS AND COUNTER-PLAINTIFFS-APPELLEES.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.

No. 94 C 6449 Charles P. Kocoras, Judge.

Before CUMMINGS, COFFEY and EASTERBROOK, Circuit Judges.

CUMMINGS, Circuit Judge.

ARGUED APRIL 11, 1997

DECIDED MAY 27, 1997

Plaintiff John Doe ("John") was a recently enrolled, 13-year-old freshman at Oak Park River Forest High School ("OPRF"), when he was accused of being in possession of a pipe and a small amount of marijuana at a freshman dance on September 9, 1994. John was a special education student who had been identified as having a learning disability. The OPRF Board of Education (the "Board") issued a ten-day suspension in accordance with its Code of Conduct and thereafter expelled John for the remainder of the fall semester.

On September 23, 1994, the Does filed a due process hearing request under the Individuals with Disabilities Education Act, 20 U.S.C. sec.1400 et seq. (the "IDEA"), asserting that OPRF's determination that John's conduct was unrelated to his disability was inadequate. On December 12, 1994, the Level I hearing officer upheld the Board's actions, agreeing with the Board's determination that John's actions were not related to his disability. On July 25, 1995, the Level II hearing officer reversed, concluding that OPRF's failure to stay John's placement or provide alternative educational services had violated John's due process and IDEA rights in several respects.

On October 26, 1994, the Does filed an eight-count complaint in the district court in the Northern District of Illinois, alleging that John's expulsion violated his Fourteenth Amendment due process rights as well as other constitutional and statutory rights. Count 8 of the Does' complaint alleged violations of the IDEA. OPRF's motion for summary judgment on all of the Does' complaint except Count 8 was granted on October 11, 1995, following the district court's determination that the procedures OPRF followed in making its decision to expel John afforded him adequate due process.

Also on October 11, 1995, OPRF filed a counterclaim appealing the Level II hearing officer's decision. The parties then filed cross-motions for summary judgment on Count 8 of the Does' complaint and OPRF's counterclaim. The district court granted summary judgment in favor of OPRF on both issues on July 10, 1996. The district court found that the IDEA did not require OPRF to continue to provide educational services to a student who has been expelled for reasons unrelated to his disability and that, by his actions, John forfeited his right to the "free appropriate public education" required by the IDEA. Similarly, the court found that OPRF was not required by the IDEA to stay John's placement during the due process hearings absent a relationship between the misconduct at issue and the child's disability. With respect to OPRF's counterclaim, the district court determined that the Level II hearing officer had relied on certain facts that were not properly dispositive of the issue at hand. The court found that OPRF had "reasonably protected" John's rights and that its decision was reasonably informed; thus the court concluded that OPRF had properly found that John's misconduct was not related to his learning disability.

The plaintiffs appeal each of the district court's decisions, *fn1 and we affirm.

I.

Despite his learning disability, John has been mainstreamed in all academic areas since the 1991-1992 school year. On February 16, 1994, a Multi-disciplinary Conference ("MDC") was held to consider John's graduation from junior high school and his admission into high school. OPRF personnel recommended that John receive the services of a resource room for learning disabilities support and that he not take biology as a freshman. However, Mrs. Doe requested the elimination of these services and enrolled John in biology.

John and his parents have acknowledged that they received copies of OPRF regulations on the use of illegal substances in connection with John's participation in a sport where the use of illegal substances was prohibited (R. 59 at 11-12). In addition, on the morning of September 9, 1994, the school district's rules of conduct, including rules relating to illegal substances, were reviewed for all students during a homeroom period, and John admitted he was there at the time the rules of conduct were explained (R. 44, Ex. A at 19; R. 80 at 4). It was later that night that John was discovered in possession of marijuana at the freshman dance.

On September 19, 1994, OPRF conducted another MDC for John that had the purpose of determining whether his misconduct in bringing the marijuana to school was related to his learning disability. The MDC team determined that no such relationship existed. None of John's current teachers or former service providers from his junior high school were in attendance, and of the MDC team, only the school psychologist, Dr. DeRose-Ihrig, had spoken with John or reviewed his record prior to the MDC. OPRF refused the Does' request that OPRF provide John with an Attention Deficit Hyperactivity Disorder ("ADHD") evaluation prior to determining whether his behavior was related to his disability, although Dr. DeRose-Ihrig noted the need for an ADHD evaluation. The MDC team also reiterated that John was eligible for learning disability resource and support services. The resource room recommendation which had been made at the February 1994 MDC and eliminated at Mrs. Doe's request was reinstated by the MDC team.

A separate hearing was also convened on September 19, 1994, to consider John's expulsion. John and his parents were represented by an attorney, who presented a case based on mitigation. The attorney presented witnesses and other testimony, cross-examined OPRF witnesses and otherwise advocated for John. The hearing lasted five hours and was tape recorded. A "Summary of Evidence" from the hearing was submitted to the Administrative Review Committee ("ARC"), which was comprised of school district administrators, and the ARC recommended that John be expelled for the remainder of the semester in accordance with the OPRF Code of Conduct. The Does were not ...


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