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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,
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
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
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.
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
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
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 ...