school districts that fail to comply with the LRE mandate. In addition to the regulations that describe potential ways the ISBE can directly use 20% of its total IDEA allotment, the Illinois School Code describes the tools the ISBE has available to ensure each child with a disability is educated in the LRE. These tools include counseling and providing technical assistance to teachers. See 105 ILCS 5/2-3.3 - 5/2-3.25f. Further, it is in the ISBE's best interest to ensure compliance with means other than that of withholding funds. When the ISBE elects to withhold IDEA funds from a local school district, the ISBE is responsible for providing special education and related services directly to children with disabilities in that district. 20 U.S.C. § 1414(d)(1).
Thus, contrary to the ISBE's position in this litigation, once the ISBE accepts federal IDEA funds it becomes responsible for following through and ensuring that the local school districts effectively educate children with disabilities in the least restrictive environment.
Defense # 2 - ISBE's Monitoring Efforts
The ISBE contends that its monitoring system does not violate the IDEA because: (1) the IDEA fails to provide any guidance as to how the ISBE should monitor for LRE compliance; (2) the ISBE's monitoring plan is adequate.
The ISBE's argument implies that all monitoring efforts, no matter how inadequate, comply with the IDEA because the IDEA does not provide any monitoring guidelines. This argument is obviously wrong. While it is true that IDEA and its regulations do not provide specific guidance as to how an SEA should monitor for LRE compliance, the IDEA nonetheless requires the ISBE to ensure LRE compliance through an effective monitoring plan. Thus, one must look to the results of the ISBE's monitoring efforts to determine whether the ISBE is in compliance with the IDEA.
Instead of looking to the results, however, the ISBE defends its monitoring efforts by briefly describing its monitoring plan and omitting any evidence of the effectiveness of the plan. Thus, while the ISBE did submit its monitoring manual into evidence, it presented no evidence at the trial regarding the results of its LRE compliance monitoring efforts. In fact, the two ISBE employees who could have presented some testimony on this subject - Jack Shook and Gail Lieberman -- provided no testimony regarding LRE compliance in Chicago. Jack Shook is the Division Administrator for the ISBE's Division of Program Compliance. He observed the first three days of the four-day trial as the ISBE's designated representative and was identified by the ISBE to testify on the last day of the trial. On that day, however, he did not appear in the courtroom and the ISBE did not mention his absence. Gail Lieberman, the former assistant superintendent for the Department of Special Education, testified at the trial but did not discuss LRE compliance in Chicago. The fact that neither of these witness testified to defend their compliance program is significant because plaintiffs provided overwhelming evidence through Ms. Gamm and the expert witnesses that the ISBE's LRE efforts were wholly inadequate. The ISBE fails even to attempt to refute this evidence.
The expert witnesses testified that while the ISBE's monitoring plan appeared adequate on paper, the results of the efforts indicated that the ISBE's monitoring of the CBE is inadequate to ensure compliance. Specifically, the experts reviewed the ISBE's rules and regulations, its state plan, its monitoring documents, and its monitoring reports and found that the ISBE does not follow through with its monitoring efforts to ensure that compliance violations are rectified. Thus, while the ISBE may correctly identify some LRE violations, it does not direct the school district to take any effective corrective action. As the Cordero court put it, the ISBE has "published some procedures and then waited for the phone to ring." 795 F. Supp. at 1362. This clearly violates the ISBE's responsibility under IDEA to "ensure" LRE compliance by the local district.
Defense # 3 Deference to OSEP
Despite the fact that the ISBE's monitoring efforts do not ensure compliance with the IDEA, the ISBE not only continues to maintain that its monitoring efforts are adequate but also argues that plaintiffs are "second-guessing" its actions and those of OSEP by requiring the ISBE to ensure compliance through its monitoring efforts. The ISBE argues:
Thus, plaintiffs ask this court to make the determination that ISBE monitoring is inadequate, and to, in essence, second-guess the ISBE's actions. And, in second-guessing the ISBE in this regard, they also ask the court to ignore the responsibility vested by Congress in OSEP to administer Part B of IDEA and to review ISBE's actions, to approve ISBE's monitoring plans and other aspects of its State plan. Any changes in ISBE monitoring policies and practices should be left to that oversight agency, in absence of specific statutory requirements to provide judicial guidance.
While the ISBE is correct that OSEP must approve the ISBE's plan for compliance with the IDEA, the ISBE is incorrect when it asserts that the court should conclude that the ISBE is in compliance with the IDEA simply because OSEP approved the ISBE's plan. Contrary to the ISBE's above-quoted statement, the IDEA includes statutory provisions that require the court to review, in certain circumstances, the ISBE's actions and devise an appropriate remedy if it finds a violation. In addition to this procedural safeguard within the IDEA, the IDEA authorizes parents and guardians of handicapped children to use other statutes as vehicles to enforce rights of children with disabilities.
Given the fact that the ISBE was incorrect when it proffered this "leave-it-to-OSEP" argument, as the statute and the case law make abundantly clear, it is not surprising that the ISBE has failed to cite any statutory authority or precedent to support its argument.
In maintaining that the court should defer any judgment regarding its monitoring efforts to OSEP, the ISBE ignores the procedural safeguard in the IDEA specifically created to ensure, among other things, that parents and guardians have the opportunity to present complaints regarding their child's free appropriate education in federal court. The IDEA specifically provides a private right of action whereby an aggrieved parent or guardian may file a complaint in a United States district court after participating in an impartial due process hearing at the local and/or state level. To ensure the child's right to a free appropriate education, the court is authorized to "grant such relief as the court deems appropriate." 20 U.S.C. § 1415(e). Because adequate monitoring on the part of the state is imperative to ensure a free appropriate education, the court must review the state's monitoring policies when a parent or guardian files a complaint regarding these monitoring policies.
In addition to ignoring 20 U.S.C. § 1415(e), the ISBE also ignores 20 U.S.C. § 1415(f), which specifically authorizes parents and guardians to use other federal statutes as vehicles to enforce the requirements of the IDEA. See 20 U.S.C. § 1415(f). In Marie O. v. Edgar, 131 F.3d 610, 1997 WL 741391, at *10 (7th Cir. 1997), the Seventh Circuit explains the history behind section 1415(f):
Section 1415(f) was enacted in response to the Supreme Court's decision in Smith v. Robinson, 468 U.S. 992, 104 S. Ct. 3457, 82 L. Ed. 2d 746 (1984). Smith had held that the EHA was the exclusive avenue through which to assert a claim. The EHA's extensive administrative scheme, the Court had held, foreclosed a section 1983 or similar action. Congress responded by enacting section 1415(f) which allowed "children and youth with disabilities" to bring section 1983 claims under the EHA.