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BETH B. v. VAN CLAY

September 10, 2001

BETH B. AND SUSAN AND TOM B., INDIVIDUALLY AND AS NEXT FRIENDS OF BETH B., PLAINTIFFS,
V.
MARK VAN CLAY, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS SUPERINTENDENT, AND LAKE BLUFF SCHOOL DISTRICT NO. 65, DEFENDANTS.



The opinion of the court was delivered by: Moran, Senior District Judge.

    MEMORANDUM OPINION AND ORDER

BACKGROUND

Beth is a thirteen year old girl with Rett Syndrome. This neurodevelopmental disorder affects only one in ten thousand girls, and does not affect boys. It is characterized in the American Psychological Association Diagnostic and Statistical Manual IV as a form of autism, resulting in severe to profound disabilities to motor functioning, communication and cognition. Beth's motor skills are estimated between five and seven months. She can only walk with one-on-one assistance and is largely wheelchair-bound. These limitations, combined with her inability to speak, make traditional communication and cognition tests inappropriate. Estimates of cognition based on observations by private and District experts range from one to six years. Beth primarily communicates through eye gaze, looking at or away from a person to indicate "Yes" or "No," respectively, or looking at one item or picture from among several choices. She can sometimes manipulate a switch with her hand, although her motor skills may deteriorate as the disorder progresses to its next stage.

Beth began receiving services from the North Suburban Special Education School District (the Co-op), a special educational cooperative to which Lake Bluff belongs, in 1990, at age two, and was diagnosed with Rett Syndrome in 1991. She participated in the Co-op's Early Childhood Program from 1991 through 1994. The Co-op provided Beth with a one-on-one aide, adaptive physical education, speech/language therapy, occupational therapy and physical therapy. To begin the 1994-95 school year, at her parents urging, Beth was placed in a regular kindergarten class, with a continuation of those services offered in the Early Childhood Program. The district convened a conference annually to review and update Beth's Individualized Education Program (IEP). In June 1997, at the IEP conference following Beth's second grade year, the District recommended Beth be placed in the Co-op's self-contained Educational Life Skills (ELS) program. For most of the school day Beth would be in a classroom with five to seven other students, many of whom also have forms of autism. The special education teachers are specifically trained and experienced in dealing with students with severe cognitive and communicative disabilities.

Beth's parents rejected this placement, demanded a due process review and invoked the IDEA's "stay put" provision. 20 U.S.C. § 1415(j). The impartial hearing officer (IHO), on May 26, 2000, ruled in favor of the district. Plaintiff sought review here. During the pendency of the due process hearing and these proceedings, Beth has continued in regular education, progressing with her peers through sixth grade.

DISCUSSION

I. Standard of Review

First, we have discretion whether to decide the matter solely on the administrative record or to accept additional evidence. The seminal case interpreting the "additional evidence" clause is Town of Burlington v. Department of Education for Massachusetts, 736 F.2d 773, 790-91 (1st Cir. 1984). The court recognized several reasons why a party may wish to present new evidence to the district court, including updates on the student's progress, and expert testimony which would have been unnecessary before a presumably expert hearing officer. But it warned us that

the trial court must be careful not to allow such evidence to change the character of the hearing from one of review to a trial de novo. . . . [A] court should weigh heavily the important concerns of not allowing a party to undercut the statutory role of the administrative expertise, the unfairness involved in one party's reserving its best evidence for trial, the reason the [evidence was not available] at the administrative hearing, and conservation of judicial resources.

Id. at 791, cited with approval by Monticello School Dist. No. 25 v. George L., 102 F.3d 895, 901-02 (7th Cir. 1996). We held a three-day evidentiary hearing, to supplement the record from a 19-day administrative hearing.

Second, we apply a unique standard of review. Our review here is more stringent than merely ensuring that the hearing officer's decision is supported by substantial evidence, but it is not completely de novo either. We are to give "due weight" to the hearing officer's findings. See Heather S. v. Wisconsin, 125 F.3d 1045, 1052 (7th Cir. 1997). But we must not "substitute [our] own notions of sound educational policy for those of the school authorities." Board of Educ. of Community Consol. Sch. Dist. 21 v. ISBE (Dist. 21), 938 F.2d 712, 715-16 (7th Cir. 1991). Hearing officers have much greater expertise in educational policies, and judges should not second-guess them. We independently evaluate the testimony and evidence, but defer to the hearing officer's determinations. See Heather S., 125 F.3d at 1053. Essentially this means we should not reverse the hearing officer's findings simply because we disagree with them. We also, of course, review purely legal questions de novo. See Morton Community Unit School Dist. No. 709 v. J.M., 152 F.3d 583, 588 (7th Cir. 1998).

Currently pending are the parties' cross-motions for summary judgment. There are many disputed facts and ordinarily this would preclude summary judgment. See Anderson v. Liberty Lobby, 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). But as we have described above, the standard for review in IDEA cases is unique. The district court independently reviews the administrative record and any additional evidence it chooses to receive, and decides the merits based on the preponderance of evidence, giving "due weight" to the IHO's determinations. See Dist. 21, 938 F.2d at 715. Although the parties still dispute many facts, we have a 30 volume administrative record and have supplemented it with our own evidentiary hearing. This case is ripe for adjudication. Permitting a full trial on matters already in the administrative record, even disputed facts, would render that hearing a nullity, contrary to the statutory direction to give the IHO's opinion "due weight." Capistrano Unified School Dist. v. Wartenberg, 59 F.3d 884, 891-92 (9th Cir. 1995); A.P. v. McGrew, 1998 WL 808879 at *3 (N.D.Ill. Nov. 16, 1998); but see Doe v. Metropolitan Nashville Public Schools, 133 F.3d 384, 387 (6th Cir. 1998) (holding summary judgment inappropriate if facts are disputed). "Because this appears to be what Congress intended under the Act, we conclude it is ...


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