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BOARD OF EDUC. OF OAK PARK & RIVER FOREST HIGH SCH

October 15, 1998

BOARD OF EDUCATION OF OAK PARK & RIVER FOREST HIGH SCHOOL DISTRICT NUMBER 200, Plaintiff,
v.
ILLINOIS STATE BOARD OF EDUCATION and KELLY E., BY AND THROUGH HER PARENT AND NEXT FRIEND, NANCY E., Defendants.



The opinion of the court was delivered by: DENLOW

MEMORANDUM OPINION AND ORDER

 This case presents the issue of who should bear the cost of educating a troubled high school student when her parents decide to unilaterally transfer her from her public high school, where she is failing, to a private residential school, where she finds success. The parents say the school district should pay. The school district says the parents or the State Board of Education should pay. The State Board of Education says the school district should pay. The Court holds that all parties share legal responsibility for this regrettable situation and they must all pay.

 Plaintiff Board of Education of Oak Park & River Forest High School District Number 200 ("the School District") filed a two-count complaint under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq.,1 against Defendants Kelly E. ("Kelly"), by and through her parent and next friend, Nancy E., (the "Mother") and the Illinois State Board of Education ("ISBE"). In Count I, the School District appeals a Level II administrative Review Officer's decision requiring the School District to reimburse Kelly's parents for all costs incurred to educate Kelly at Eagle Hill School in Massachusetts. Presently before the Court is the School District's motion for summary judgment against Kelly and her mother challenging the review officer's decision. Kelly and her mother present the Court with a cross motion for summary judgment to affirm the decision. In Count II, the School District requests that, in the event it is found liable to Kelly's parents, the ISBE pay all amounts for which the School District is found liable. The School District has filed a separate motion for summary judgment against the ISBE requesting this relief.

 For the following reasons, the Court grants in part and denies in part the School District's motion for summary judgment against Kelly and her mother and grants in part and denies in part Kelly and her mother's cross motion for summary judgment against the School District. The Court grants in part and denies in part the School District's motion for summary judgment against the ISBE.

 I. STANDARD OF DECISION

 The first issue which the Court must address is the standard to be applied in deciding this case. Although the parties have filed motions for summary judgment, the Court's standard of decision is not the traditional summary judgment standard. Morton Community Unit Sch. Dist. No. 709 v. J. M., 152 F.3d 583, 587-88 (7th Cir. 1998). The IDEA dictates that "the court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." 20 U.S.C. § 1415(e)(2). Here, when neither party has requested the Court to hear additional evidence, the "motion for summary judgment is simply the procedural vehicle for asking the judge to decide the case on the basis of the administrative record." Heather S. v. Wisconsin, 125 F.3d 1045, 1052 (7th Cir. 1997). Even though the motion is termed as one for summary judgment, this Court's decision must be based on the preponderance of the evidence. See Heather S., 125 F.3d at 1052; 20 U.S.C. § 1415(e)(2). "The party challenging the outcome of the state administrative decision bears the burden of proof." Heather S., 125 F.3d at 1052.

 In reviewing the administrative record, the court "is required to give 'due weight' to the results of the administrative proceedings." Id. at 1052-53. Reviewing courts must not "substitute their own notions of sound educational policy for those of the school authorities which they review." Board of Educ. v. Rowley, 458 U.S. 176, 206, 102 S. Ct. 3034, 3051, 73 L. Ed. 2d 690 (1982). "The 'due weight' which the court must give to the hearings below is not to the testimony of witnesses or to the evidence - both of which the court must independently evaluate-but to the decisions of the hearing officers." Heather S., 125 F.3d at 1053. "Due weight" implies "some sort of deference" to the agency's decision, and thus to the decisions of the hearing officers. Id. When the decisions of the hearing officers conflict, the Seventh Circuit requires that deference be given to the final administrative decision, in this case, the Level II Review Officer's decision. Id. Perhaps the best way to conceptualize the Court's task is to view it as a bench trial on the papers. Tripp v. May, 189 F.2d 198, 200 (7th Cir. 1951) (holding that it is proper for trial court to decide factual issues and to enter judgment when facts have been fully developed by papers on cross motions for summary judgment).

 
When the court is ruling on cross-motions, the facts sometimes become fully developed at the hearing on the motions. When this occurs in a non-jury case, the court may proceed to decide the factual issues and render a judgment on the merits without any further delay if it is clear that there is nothing else to be offered by the parties and there is no prejudice in proceeding in this fashion. As a practical matter, of course, this procedure amounts to a trial of the action and technically is not a disposition by summary judgment.

 10A Charles Alan Wright et al., Federal Practice and Procedure § 2720 (3d ed. 1998). Because the Court is required to apply a preponderance of the evidence standard while giving "due weight" to the results of the administrative proceedings, the Court will treat this case as a bench trial on the papers. *fn2"

 II. FINDINGS OF FACT

 The following represents the Court's findings of fact based on a preponderance of the evidence standard after giving due weight to the decisions of the Hearing and Review Officers. Additional findings will also be found in later portions of this decision.

 A. The Parties

 Kelly is an eighteen-year-old female student who has an extensive history of behavioral and academic difficulties, beginning in the third grade. (Defs.' Local Rule 12(M) Statement of Material Facts ("Defs.' 12(M)") PP 1, 24-25.) Kelly resides within the boundaries of the School District. The School District is responsible for the education, in compliance with state and federal law, of all student residents in the district. The ISBE is the state educational agency and is ultimately responsible for seeing that all of its constituent school districts are in compliance with the IDEA.

 B. Kelly's Special Education Experiences Prior to Enrollment in Plaintiff School District

 On February 1, 1994, in Kelly's eighth-grade year, the student services team at her junior high school requested a case study evaluation to determine whether she was eligible for special education. (Defs.' 12(M) PP 28, 30; A.R. at 638.) Academic achievement testing indicated that Kelly was performing at a 5.0 grade level equivalency level in reading, a 5.8 grade equivalency level in mathematics, a 4.6 grade equivalency level in written language, a 4.7 grade equivalency level in letter-word identification (decoding words), and a 3.3 grade equivalency level in dictation (spelling), (Defs.' 12(M) PP 31-32; A.R. at 645); however, Kelly did perform at a 10.0 grade equivalency level in writing samples. (Pl.'s Local Rule 12(N) Response to Defs.' Rule 12(M) Statement of Material Facts ("Pl.'s 12(N)") P 32; A.R. at 732.) Kelly became eligible for special education and related services pursuant to the IDEA on March 15, 1994, under the category of behavior disorder ("BD"). *fn3" (Defs.' 12(M) P 36; A.R. at 668-69.) At the Multi-Disciplinary Conference ("MDC") held on March 15, 1994, school personnel developed an Individual Education Plan ("IEP") for Kelly. *fn4" (A.R. at 671-73.) The IEP contained the following goals:

 
(1) To complete assignments on time and turn them into teacher;
 
(2) To monitor attendance and tardiness;
 
(3) To decrease resistance to academic assistance;
 
(4) To increase appropriate strategies to change her attitude toward learning;
 
(5) To increase on task behavior;
 
(6) To increase self-confidence and self-esteem.

 (A.R. at 672.)

 On May 9, 1994, an MDC/IEP meeting took place attended by personnel from the junior high school and Kelly's then future high school, Oak Park River Forest High School ("Oak Park"). (Defs.' 12(M) P 38.) The IEP developed by Oak Park personnel identified Kelly as BD and placed her in a BD resource room and BD social seminar. (Pl.'s Local Rule 12(M) Statement of Material Undisputed Facts ("Pl.'s 12(M)") P 8.) The goals identified were similar to those contained in the prior IEP:

 
(1) Improve her study and organizational skills;
 
(2) Arrive on time and remain in classes;
 
(3) Remain "on task" in class (focus);
 
(4) Utilize appropriate school resources (request help);
 
(5) Improve her self-esteem; and
 
(6) Complete assignments on time (homework).

 (Defs.' 12(M) P 40; A.R. at 648.) The IEP developed by Oak Park for Kelly did not provide for annual goals for her reading difficulties. (Defs.' 12(M) P 49; Pl.'s 12(N) P 49.)

 C. Kelly's Special Education Experiences While Attending Plaintiff School District

 1. The 1994/95 School Year

 Kelly entered Oak Park at the beginning of the 1994/95 school year. (Pl.'s 12(M) P 7.) During her freshman year, Kelly exhibited significant academic and behavioral difficulties, including reading difficulties, repeated truancy, disciplinary infractions, and defiance of school rules. (Defs.' 12(M) P 42.) Kelly was chronically truant from school. (Defs.' 12(M) P 69.) She was absent four days during the first semester and twenty days during the second semester. (Defs.' 12(M) P 73.) There were no goals on Kelly's IEP to address her truancy. (Defs.' 12(M) P 74.) Kelly was placed in two remedial reading classes, Essentials of English and Elements of Reading. (Pl.'s 12(M) P 8.) These classes were not special education classes. (Defs.' Local Rule 12(N) Response to Plaintiff's Rule 12(M) Statement of Material Undisputed Facts ("Defs.' 12(N)") P 8; A.R. at 150.) Kelly failed Essentials of English both semesters of the 1994/95 school year. (Defs.' 12(N) P 8; A.R. at 811.) Kelly received a D for the first semester of Elements of Reading and failed the second semester. (Defs.' 12(N) P 8; A.R. at 811.)

 Kelly's mother was in frequent contact with Kelly's dean at Oak Park, Sharon Moyer ("Moyer"), during the 1994/95 school year concerning Kelly's poor school attendance involvement with a negative peer group, her academic performance, and her reading difficulties. (Pl.'s 12(M) P 9.) On January 19, 1995, Kelly's mother called the School District's Behavior Development Program Chairperson, Theresa Brannock ("Brannock"), to request a program change. (Pl.'s 12(M) P 11.) Brannock and Kelly's mother agreed that Kelly's placement should be changed to self-contained for the second semester. (Pl.'s 12(M) P 12.) Although Kelly was moved to the self-contained placement, her IEP was not updated with new goals and objectives until April 5, 1995. (Defs.' 12(N) PP 12-13.)

 The April 5, 1995, IEP reflected Kelly's change to the more structured self-contained BD class. (Defs.' 12(N) P 13.) English, Algebra, World History, and Social Seminar classes were provided in the self-contained setting. (Pl.'s 12(M) P 14.) Kelly was also placed in a learning disability ("LD") Reading Strategies course and was slated to receive remedial reading services from the School District's reading specialist, Dr. Haywood. (Pl.'s 12(M) P 14.) Kelly refused to take advantage of Dr. Haywood's services. (Defs.' 12(N) P 14.) The IEP also provided for social work services and summer school. (Pl.'s 12(M) P 15.) Kelly's mother approved all changes. (Pl.'s 12(M) P 15.)

 As early as January 1995, Kelly's mother requested that Kelly be tested for a possible learning disability. (Defs.' 12(M) P 53.) At the April 5, 1995, MDC/IEP meeting, the MDC team requested that psychological testing be conducted to better assess Kelly's learning difficulties. (Defs.' 12(M) P 54; A.R. at 1221.) The School District's psychologist never conducted the requested psychological testing because she believed that an eighth grade evaluation, indicating the lack of a learning disability, was sufficient. (Defs.' 12(M) P 54; A.R. at 183-84, 1222, 1223-24.) She made this decision to not test Kelly without reconvening an additional MDC/IEP meeting and without written notice to Kelly's mother. (Defs.' 12(M) P 56; Pl.'s 12(N) P 56.)

 In her first semester at Oak Park, Kelly received three Ds and three Fs in academic courses and passed her two pass/fail non-academic classes. (Defs.' 12(M) P 86.) In the second semester of her freshman year, Kelly received one D, five Fs, one N (grade and credit withheld for excessive absences), and passed her one pass/fail non-academic class. (Defs.' 12(M) P 87.) She also received a number of detentions and suspensions. (Defs.' 12(M) P 76.)

 2. The 1995/96 School Year

 During the 1995/96 school year, Kelly's sophomore year, Kelly continued to exhibit significant behavioral and academic difficulties. (Pl.'s 12(M) P 16.) She was absent 28 days during the first semester and 46 days during the second semester. (Defs.' 12(M) P 73.) *fn5" She received numerous detentions and in-school suspensions. (Defs.' 12(M) P 84.) The School District employed regular education attendance and disciplinary policies with Kelly, even though a policy for addressing attendance problems of special education students existed. (Defs.' 12(M) PP 70, 83.) In the Fall 1995 semester, Kelly received one B (in Reading Strategies), three Fs, and two Is (incompletes) in academic classes, and she passed one of her two pass/fail non-academic classes. (Defs.' 12(M) PP 88-89.) In the Spring 1996 semester, Kelly either withdrew from or failed all her academic courses and passed three of her six pass/fail non-academic classes. (Defs.' 12(M) P 90; Pl.'s 12(N) P 90.) Thus, by the end of her second year in high school, Kelly had obtained only ten of the expected twenty credits. (Defs.' 12(M) PP 78-79.)

 On March 8, 1996, school personnel held an MDC/IEP conference to plan Kelly's return to school after a period of excessive truancy and a hospital stay. (Pl.'s 12(M) P 23.) Kelly had indicated that she wanted to return to school and participate in a work program. (Pl.'s 12(M) P 23.) Consequently, Kelly began participating in an off-campus work experience program in the mornings and attending self-contained classes in the afternoon. (Pl.'s 12(M) P 24.) Nevertheless, Kelly's attendance and tardiness were still problematic. The IEP also indicated that Kelly was to receive psychological and/or social work related services, but did not indicate the quantity of services to be provided nor whether the services were direct or consultative. (Defs.' 12(M) P 99.)

 In March 1996, Kelly's mother again discussed evaluating Kelly for a possible learning disability and signed a consent form to allow the evaluation. (Defs.' 12(M) PP 57-58; Pl.'s 12(N) P 57.) No one performed the requested evaluation. (Defs.' 12(M) P 58.) The School District states that this was because of the concern over the test-retest effect which can cause inflated scores. (Pl.'s 12(N) P 110.)

 In February and March 1997, Kelly's mother obtained independent psychological and learning disabilities evaluations which indicated that Kelly had a specific learning disability that had not been identified by the School District. (Defs.' 12(M) P 61; Pl.'s 12(N) P 61.) Dr. Richard Guerra, a clinical psychologist, tested Kelly and recommended that "further testing be done to determine the nature and extent of a learning disability." (A.R. at 1223.) An educational diagnostician, Mary Ellen Gavin, M.A., found that Kelly had a non-verbal learning disability, a language processing disorder, and moderate to severe dyslexia. (Defs.' 12(M) PP 64-65.).

 D. Kelly's Out-of-School Behavioral Problems

 Kelly continued to demonstrate significant behavioral problems into her sophomore year. During the 1995 Christmas break, Kelly moved out of the house and for a few days her mother did not know her whereabouts. (Pl.'s 12(M) P 17-18.) After a period of time, she began staying with a friend but did not attend school. (Pl.'s 12(M) P 18.) Kelly returned home after becoming ill, but only for two weeks, after which she moved back in with her friend. While living with her friend, Kelly, with a number of older companions reputed to be gang members, was picked up by the Blue Island Police Department for violating a curfew ordinance. (Pl.'s 12(M) P 20.) The police told Kelly to move back home and go back to school. (Pl.'s 12(M) P 21.) Kelly returned home, but brought her problems with her. (Pl.'s 12(M) P 22.) After an upsetting phone call, she tried to take a large kitchen knife to her room. (Pl.'s 12(M) P 22.) Kelly's mother fought with Kelly over the knife and was able to take it away from her. (Pl.'s 12(M) P 22.)

 On February 24, 1996, Kelly's mother admitted her to the Hinsdale Hospital Adolescent Psychiatric Inpatient Program. (Pl.'s 12(M) P 23; A.R. at 1222.) Kelly was admitted for "'out-of-control' and runaway behavior, drug abuse, extreme oppositionality and defiance of home rules, low self-esteem and depression." (A.R. at 1222.) Kelly was diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD"), Oppositional Defiant Disorder, and Polysubstance Abuse. (Defs.' 12(M) P 97.) This medical diagnosis was provided to the School District at the March 8, 1996, MDC/IEP meeting. (Defs.' 12(M) P 98.) Dr. Bernadino, the psychiatrist who treated Kelly at Hinsdale, prescribed Ritalin to address Kelly's ADHD, but Kelly refused to cooperate in taking the medication until July 1996. (Pl.'s 12(M) P 27.) On May 13, 1996, Kelly was again admitted to Hinsdale Hospital because she had again run away from home. (Pl.'s 12(M) P 25.)

 E. Kelly's Move to Eagle Hill

 In September 1996, Kelly's mother unilaterally withdrew Kelly from attendance at Oak Park and placed her at Eagle Hill School, a residential school in Massachusetts, which serves students with learning disabilities, ADHD, and emotional and behavioral difficulties. (A.R. at 1-2.) Eagle Hill School is not an ISBE-approved residential facility. (A.R. at 1-2.) At least one of the Eagle Hill staff members is special education certified and some of the teaching staff are certified in the Orton-Gillingham method of instruction in reading. (Defs.' 12(N) P 30.) Eagle Hill uses an IEP format that includes specific goals, short term objectives, evaluation criteria, and a narrative that discusses the student's progress. (Defs.' 12(M) P 163.) The school day is highly structured. (Defs.' 12(M) P 153.) Class size is small; most classes have only three to seven students while some have a one-to-one student-to-teacher ratio. (Defs.' 12(M) P 158; Pl.'s 12(N) P 169.)

 Kelly has benefitted significantly from her placement at Eagle Hill during the 1996/97 school year, the 1997 summer term, and the 1997/98 school year. (Defs.' 12(M) P 143.) Eagle Hill is addressing her reading difficulties through one-to-one instruction following the Orton-Gillingham method of teaching reading and reading comprehension. (Defs.' 12(M) P 171.) While at Eagle Hill, Kelly has passed all of her courses and her attendance has dramatically improved. (Defs.' 12(M) PP 145, 148.) In a positive reinforcement program in which students earn privileges, she has been consistently earning full privileges. (Defs.' 12(M) P 150.)

 III. DUE PROCESS ...


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