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March 27, 2003


The opinion of the court was delivered by: Robert W. Gettleman, United States District Judge.


On March 11, 2002, plaintiff filed an eight-count amended complaint on behalf of her son, Darius, seeking administrative review of an impartial due process hearing officer's decision regarding Darius' special education eligibility pursuant to the Individuals with Disabilities in Education Act, 20 U.S.C. § 1400, et seq. ("IDEA"), and alleging numerous violations of Darius' constitutional and statutory rights. In her amended complaint, plaintiff seeks, (1) a reversal of the decision of the hearing officer who presided over Darius' due process hearing, (2) appropriate compensatory education, (3) a change in Darius' educational placement, (4) a declaratory judgment that 23 Ill. Admin. Code § 226.540(a)(3) violates the IDEA, and (5) damages under 42 U.S.C. § 1983.

Defendants have moved for summary judgment with respect to Counts I through VIII of the amended complaint, and plaintiff cross-moved for partial summary judgment with respect to Counts I through VI. For the reasons stated herein, both sides' motions for summary judgment with respect to Counts I through VI are denied as moot in light of the parties' settlement of prospective educational issues. Moreover, defendants' motion for summary judgment on Counts VII and VIII is granted in part and denied in part.


During the 1998-1999 school year, Darius attended third grade at Donoghue School in Chicago, where he served eighteen days of suspension and an in-school suspension, for yelling profanities and refusing to work. On his report card, Darius received Ds and Fs in effort, his fourth quarter grades were all Ds and his teacher reported problems with self-control, accepting responsibility, practicing courtesy, and completing assignments. Darius repeated the third grade at Carnegie School during the 1999-2000 school year, during which he served an additional eleven days of suspension for fighting with classmates and swearing at his teacher. During this time, he received failing grades in English, proofreading, reading and math.

During the 2000-2001 school year, while he was in fourth grade at Carnegie School, Darius was suspended for a total of fifty days, distributed over six separate occasions. Specifically, he was suspended for ten days on September 13, 2000, October 18, 2000, November 11, 2000, and February 1, 2001, and for five days on February 23, 2001, and March 7, 2001. The incidents giving rise to the suspensions involved fighting with other students, yelling profanities and verbally confronting school personnel. Further, in fall 2000, Darius' progress report stated that his school work was unsatisfactory in all academic subjects.

On twenty-four other days during the 2000-2001 school year, Darius was verbally reprimanded, a discipline report was completed, and Darius' mother was called. Moreover, school officials called the Chicago police department regarding Darius on at least five occasions between January 31, 2001, and January 8, 2002.*fn1

On November 8, 2000, Mr. Avery, principal of Carnegie School, moved Darius from his regular education classroom to a self-contained, cross-categorical special education classroom. This placement was made without conducting an evaluation to determine if Darius had a disability, without determining his eligibility for special education, and without developing an individualized education program (IEP). Moreover, the school did not seek plaintiff's consent before placing Darius in the special education classroom.

On February 2, 2001, plaintiff attended a meeting with employees of School District 299 to discuss conducting a case study evaluation to determine Darius' eligibility for special education. Although plaintiffs signature appears on the bottom of the form entitled, "Parent/Guardian Consent for Case Study Evaluation/Reevaluation," plaintiff disputes that she signed the form. Moreover, neither the box indicating consent nor the box indicating refusal to consent is checked on the consent form.

On February 27, 2001, March 1, 2001, and March 26, 2001, plaintiff sent letters to School District 299 (the Chicago Public Schools, or "CPS") indicating that she did not want Darius to be evaluated. On March 7, 2001, plaintiff sent a letter to Eunice Gilbert, Darius' case manager, requesting that Darius remain in Mr. McShan's classroom. Plaintiff was not aware, however, that Mr. McShan's class was a special education class.

In a March 9, 2001, letter, Gilbert informed plaintiff that, pursuant to Illinois law, she had to file for a due process hearing in order to revoke her consent to the case study evaluation. Gilbert attached a copy of the pertinent sections of the Illinois Administrative Code that explained how to proceed. In a letter dated March 14, 2001, Jay Kraning of the Due Process and Mediation Office of Specialized Services for the CPS instructed Gilbert to continue with the case study evaluation and conduct an IEP meeting. According to Kraning's letter, "As of today's date, my Department has not received a request for due process from the parent of this student. Your staff must continue the case study process and conduct the IEP team meeting until such time that they are ordered by a hearing officer to stop. It is expected that your staff will comply with their legal obligation." Plaintiff filed a request for an impartial due process hearing on March 26, 2001.

Darius' special education evaluation was completed on March 29, 2001. A case study evaluation and IEP team meeting were held on April 6, 2001. At the meeting, CPS staff determined that Darius has an emotional/behavior disorder and learning disability, and thus qualifies for special education services. Plaintiff consented to Darius being placed in Mr. McShan's classroom, but contested Darius' eligibility for special education services.

The due process hearing was conducted on June 7, 2001, before impartial hearing officer Francis J. Nowik (the "IHO"). In the pre-hearing conference report, dated May 19, 2001, and incorporated into the record of the due process hearing, the IHO summarized plaintiffs position as follows:

The District did not have authority to evaluate her son since she did not give consent to do a case study evaluation, or in the alternative, if she did give consent she revoked that consent by giving the District notice that she was revoking her consent. She feels that the District did not consult with her on her son's placement. She objects to the fact that the District placed her son in self contained special education room prior to the case study being completed and that her son has been suspended for more that [sic] 50 days during the current school year. She feels that her son is not eligible for special education and should not be labeled as a special education student.
After summarizing the District's position, which did not mention Darius' suspensions, the IHO identified the issues for the due process hearing as follows: (1) did the parent give her consent for the case study evaluation; (2) if consent was given, was that ...

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