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Board of Education of Township High School District No. 211 v. Michael R.

August 15, 2005

BOARD OF EDUCATION OF TOWNSHIP HIGH SCHOOL DISTRICT NO. 211, PLAINTIFF,
v.
MICHAEL R. AND DIANE R., INDIVIDUALLY AND AS NEXT FRIENDS OF LINDSEY R., A MINOR, DEFENDANTS, ILLINOIS STATE BOARD OF EDUCATION, THIRD PARTY DEFENDANT.



The opinion of the court was delivered by: Matthew F. Kennelly, District Judge

MEMORANDUM OPINION AND ORDER

Michael R. and Diane R. are the parents of Lindsey, an eighteen year-old girl who has Rett Syndrome, a neurological and developmental disorder that is characterized by the absence of verbal ability, gait disturbances, and apraxia, an inconsistent ability to control the body and limbs. The Individuals with Disabilities Education Act, 20 U.S.C. § 1414, guarantees Lindsey the right to a free appropriate public education (FAPE) in the least restrictive environment. The IDEA obligates Lindsey's home school district, District 211, to assess her educational needs and address those needs through an individualized education program. Id. § 1414(a)-(d).

In November 2003, the District concluded that Lindsey was not receiving a FAPE in the District's mainstream high school, Conant High School, and it therefore determined that she should be placed in a highly structured, multi-needs environment in a different school. Lindsey, acting through her parents, appealed the District's placement decision to an independent hearing officer (IHO). The IHO decided that the District's placement determination was appropriate. Defendants, Lindsey's parents, now seek to have the Court overturn the IHO's decision.

Both the District and defendants have moved for summary judgment. There are many disputed material facts in this case, which ordinarily would preclude summary judgment. Fed. R. Civ. P. 56(c). In IDEA cases, however, motions for summary judgment are a procedural vehicle allowing the district court to rule on the case based on the administrative record. Thus, it is appropriate for the court to grant summary judgment even when facts are in dispute. Beth B. v. Van Clay, 282 F.3d at 493, 496 n. 2 (7th Cir. 2002).

For the reasons stated below, the Court grants summary judgment in favor of the District. Defendants' motion to strike the District's reply to defendants' response to the District's Rule 56.1(b)(3) statement of material facts is granted, because the local rules do not contemplate replies to responses of Rule 56.1(b)(3) statements. The Court did not consider that reply in addressing the present motions.

Standard of Review

In reviewing the findings made in an IDEA administrative hearing, courts are directed to give "due weight" to the decision of the IHO. Heather S. v. State of Wisconsin, 125 F.3d 1045, 1052 (7th Cir. 1997). "'Due weight necessarily implies some sort of deference to the agency's decision, and considering the officer's special expertise in education law, we think a sound basis exists for giving deference to the decision of the hearing officers.'" Id. (citing Board of Education of Murphysboro Community School Dist. No. 186 v. Illinois State Board of Education, 41 F.3d 1162, 1167 (7th Cir. 1994)). The testimony of witnesses and evidence submitted at the hearings, however, should be independently evaluated by the court. Id. at 1053; see also Patricia P. v. Board of Education of Oak Park, 203 F.3d 462, 466 (7th Cir. 2000) (the "due weight" standard does not imply an "abdication of all judicial function"). A court must, however, be mindful of the fact that hearing officers have much greater expertise in educational policies than district court judges, Heather S., 125 F.3d at 1053, and thus,the court may set aside the administrative order only if it is "strongly convinced the order is erroneous." Alex R. v. Forrestville Valley Community Unit School Dist. No. 221, 375 F.3d 603, 612 (7th Cir. 2004).

The court is required toexamine the administrative record, hear additional evidence at its discretion, and base its decision on the preponderance of the evidence. 20 U.S.C. § 1415 (i)(2)(B). In this case, the Court allowed Lindsey's parents to adduce some new evidence following the administrative ruling. When a court permits the introduction of new evidence, the more the court relies on this new evidence, "the less it should defer to the administrative decision." Alex R., 375 F.3d at 612. The new evidence in this case consisted of three depositions. The testimony contained in these depositions did not provide the Court with any new material information. Indeed, the information contained in the depositions was largely duplicative of information already in the administrative record. Thus, the new evidence did not warrant a more searching review of the IHO's decision.

In the administrative hearing, District 211 bore the burden of proving its proposed individualized education program (IEP) was adequate. 105 ILCS 5/14-8.02(h). In this proceeding, however, as the party challenging the IHO's decision, the defendants bear the burden of proving their case by a preponderance of the evidence. Heather S., 125 F.3d at 1052. The preponderance of the evidence standard "by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review." Rowley, 458 U.S. at 206.

Facts

Lindsey was diagnosed with Rett Syndrome when she was thirty-five months old. Rett Syndrome is a rare condition, affecting approximately one in every ten to fifteen thousand girls. Vol. 22 at 3701. It is classified by the American Psychiatric Association as one of several "pervasive developmental disorders," also referred to as the autism spectrum. Diagnostic and Statistical Manual of Mental Disorders 71 (4th ed. 1994). Rett Syndrome is caused by a genetic mutation which affects the overall rate of growth, including brain growth.

Lindsey is nonverbal and suffers from apraxia, an inconsistent ability to control the body and limbs. She has, however, a higher level of motor functioning than the majority of girls with Rett Syndrome; among other things, Lindsey can swim, ski, and ride a horse. Vol. 24 at 7338. Lindsey also has a higher level of cognitive functioning than most girls with Rett Syndrome. Though the average mental age of girls afflicted with Rett Syndrome is estimated to be eight to ten months, doctors estimate Lindsey's cognition to be between the seven and twelve year old equivalency. Vol. 21 at 2901 (one test showed that Lindsey had the cognitive abilities of at least a seven year old, and another showed she had the cognitive ability of an average twelve year old). It should be noted, however, that because girls with Rett Syndrome are nonverbal and have poor motor control, it is quite difficult to measure their cognitive ability accurately.

Among the many effects of Rett Syndrome are that Lindsey's hands get locked together, and she needs assistance in unlocking them. In addition, and perhaps significantly for purposes of this case, Lindsey engages in vocalizations, which can be loud and last for anywhere from a few seconds to over a minute. The cause and meaning of the vocalizations is not known with any certainty. Rett Syndrome also causes Lindsey to engage in self-injurious behaviors, which include hitting herself on the chin or head, the cause of which is also unknown. Lindsey also sometimes strikes others, usually by butting them with her head.

Lindsey is a resident of Schaumburg, Illinois. She was "mainstreamed," that is, placed in her regular neighborhood schools, throughout elementary and junior high school. After graduating from junior high, Lindsey started high school at Conant, her neighborhood high school. Conant is one of five District 211 high schools. It is a large, crowded high school, with a population of approximately 2,638 students. Conant does not have a self-contained multiple needs program. District 211 has a multiple needs classroom at another school, Hoffman Estates High School.

Lindsey entered Conant as a freshman in the fall of 2001. Her schedule included five regular education classes -- physical education, biology, English, life studies, and math -- and lunch. She had her own special education teacher and teacher's aide who accompanied her throughout the day. The teacher was responsible for modifying the curriculum to Lindsey's cognitive level and communication skills. The teacher and the aide were responsible for transitioning Lindsey to and from class and working with Lindsey during class. If Lindsey needed to be removed from class because of her behavior, the teacher and the aide would attempt to calm her using various techniques such as talking to her, rubbing her back, playing music, applying splints, and using a weighted vest and blanket. Lindsey had extensive toileting needs, to which her teacher and the aide attended. In addition, because she is nonverbal, Lindsey required numerous communication devices, such as yes/no cards, an alphabet board, and voice output devices, and the teacher and the aide had to help Lindsey use the devices.

Conant made a work room available for Lindsey's private use. The work room was a place where Lindsey could go to receive individualized instruction from her special education teacher, receive speech and physical therapy, or calm herself when her behaviors required removal from class.

In May of Lindsey's freshman year, she head-butted two staff members, causing them to sustain nasal fractures, one of which required surgery. Following these incidents, Lindsey was taken out of Conant. Over the summer of 2002, Lindsey's parents took her to the Sparks Clinic in Alabama, a clinic run by Dr. Alan Percy, an expert in Rett Syndrome, for a medical evaluation to determine the cause of her "behavior and irritability." Vol. 24 at 7245. Dr. Percy could find no physical cause for Lindsey's behavior and recommended continued evaluation by her doctors in Chicago.

Also in the summer of 2002, the District completed its IDEA-required triennial evaluation of Lindsey. The multidisciplinary review was conducted by Dr. Bennett Leventhal and Dr. Marrea Winnega at the University of Chicago Developmental Disorders Clinic. After closely examining Lindsey, the Clinic concluded that Lindsey's behaviors were grossly interfering with her ability to make educational progress. Vol. 11 at 3788 (the report notes that it was difficult to assess Lindsey's cognitive potential during the review because her behavior interferes with her ability to respond and the ability of staff to work closely with her). At the conclusion of the multidisciplinary review, the University of Chicago doctors recommended that Lindsey be taken out of Conant and placed in a special education setting:

Regrettably but realistically, due to Lindsey's behavior and general lack of progress, it is not appropriate for Lindsey to continue in her current, so-called regular education setting. Not only does she not benefit, but she has also become a significant and serious safety problem for herself and others. She is not safe around her teachers or fellow students.

At this time, the least restrictive setting for Lindsey should be a self-contained special education program that has very strong behavioral training capabilities.

Vol. 11 at 3790.

The District held a meeting in August 2002 to create Lindsey's IEP for the 2002-03 school year. The District recommended a self-contained special education placement for Lindsey. Lindsey's parents refused to agree to that placement, as they believed Lindsey was best served in the regular education setting at Conant. They requested an administrative hearing to review the District's placement decision and made it clear that they would exercise the "stay put" provision of the IDEA. 20 U.S.C. § 1415(j). This provision permits a student who is eligible for special education services to remain in her current educational placement while a due process hearing is pending. The District filed suit, asking this Court to enjoin Lindsey's parents from invoking the stay put provision. The Court granted a temporary restraining order. Rather than put Lindsey in a special education placement after the injunction was granted, defendants elected to keep her at home.

The District and Lindsey's parents thereafter negotiated regarding Lindsey's placement. The parties reached a compromise and executed a settlement agreement on November 5, 2002. Vol. 5 at 1945. The agreement provided that Lindsey was to return to Conant as soon as possible. A panel of experts was established with the task of preparing Conant for Lindsey's return and reaching a consensus regarding if and when Lindsey should return to the school. Vol. 5 at 1959. If the panel could not reach a consensus regarding Lindsey's return to Conant, the agreement provided that the dispute could be resolved before a hearing officer or by this Court. Id.

The expert panel was composed of three members, Dr. Bennett Leventhal, Victor Morris, and Alice Belgrade. Dr. Leventhal, an adolescent psychiatrist and pediatrician, was the doctor at University of Chicago Clinic who had evaluated Lindsey for the triennial evaluation. Dr. Leventhal also relied on the services of Dr. Winnega, the director of the Clinic, who had also participated in the triennial evaluation. Victor Morris, a specialist in educational and behavioral programming for students with autism spectrum disorders, worked for the North DuPage Special Education Cooperative and owned his own consulting firm. He also consulted with Dr. Mark Lenz, another member of his consulting firm. Alice Belgrade was the only member of the panel with teaching experience. She founded Chicago Behavior Consultants and was a behavioral specialist retained by Lindsey's parents to work with Lindsey at home. Morris was chosen to lead and coordinate the panel. The panel members divided up tasks based on expertise. Dr. Leventhal would review medical records and provide medical consultative support; Vic Morris would review the Conant environment and develop strategies that would work in the environment; and Belgrade would continue to work with Lindsey at home to shape her behaviors and would develop a behavior intervention plan for use at school.

Though seemingly well organized, the panel's activities seemed "star-crossed" from the beginning, according to the hearing officer. IHO Decision at 48. The panel members had trouble communicating with each other quickly and reliably. Id. Furthermore, the panel members had fundamental disagreements over Rett Syndrome; whether there was a correlation between "precursory behaviors" and the occurrence of vocalizations, self-injurious behavior, and head-butting; whether Lindsey's environment caused or affected the severity of these behaviors; and whether a plan developed by a behavioralist to minimize their frequency and intensity could be effectively implemented at Conant. See IHO Decision at 48-50 (listing some of the disagreements between panel members).

Despite their differences of opinion, the panel members agreed that Lindsey should return to Conant in spring 2003. Lindsey returned to Conant on April 21, 2003 with a shortened schedule of three periods which included lunch, physical education, and English. Conant hired Jean Mansfield Link to be Lindsey's special education teacher and Donna Frascati to be the teacher's aide.

Lindsey attended school for thirty-five days in the spring of 2003. Link kept detailed daily and weekly logs of Lindsey's experiences at Conant. See IHO Decision at 24-27 (summarizing the weekly logs). The logs reflect that Lindsey spent most of her time in her work room, rather than in classroom, often because self-injurious behavior and vocalizations required her removal from class. Of the thirty-five days Lindsey was at school, she was able to stay in English class for the full fifty-minute period only twice. Id. at 24. Though her academic progress was limited, Lindsey made progress in functional skills such as using a spoon, improving her sorting skills, responding to personal greetings, and developing proper hygiene. Id. at 30.

Lindsey completed her sophomore year in June 2003. During summer 2003, Jean Link informed Conant that she was quitting her job to take a teaching position at a special education school. With Link leaving, Conant decided not to rehire Donna Frascati. In their place, Conant hired Bethany Powers as Lindsey's special education teacher and Nora Mulcrone as an aide.

Also in June 2003, the panel began to contemplate setting a time at which it would complete its work under the settlement agreement and thereafter dissolve. The panel discussed other placement options for Lindsey, such as the special education program at Hoffman Estate High School, but the panel members did not investigate these placements because they believed the settlement agreement limited them to working with Conant. IHO Decision at 33. The panel did not make a specific recommendation regarding what Lindsey should do during the summer or what her class schedule should be in the fall. Vol. 21 at 2262.

On August 7, 2003, the IEP team met to start working on Lindsey's IEP for her junior year of high school. The IEP team consisted of Lindsey's parents and their attorney, Jennifer Pearson, the assistant director of special education for the District, the District's attorney, Belgrade, Morris, Scott Altergott, Lindsey's English teacher, and Lindsey's physical therapist.*fn1

Vol. 1 at 142. At the meeting, Morris unexpectedly announced his resignation from the panel. He explained he was resigning because he was concerned with the continuing effectiveness of the panel and differences in perspective between himself and Belgrade regarding how best to support Lindsey. Vol. 21 at 2266. At the time of his resignation, Morris believed that Lindsey had participated successfully at Conant with her limited schedule. Belgrade essentially agreed with Morris and believed that Lindsey should begin taking more academic classes in the fall. Dr. Leventhal, however, was not convinced that Lindsey's time at Conant in the spring was appropriate. He was concerned about her vocalizations and behaviors and believed that if the behavioral disruptions could not be controlled, Lindsey should be removed from Conant. Vol. 22 at 3944.

The next IEP team meeting occurred on August 15, 2003. Conant's representatives on the team believed that Lindsey should be placed in a self-contained, special education setting; however, they did not recommend such a placement because they felt constrained by the settlement agreement. Lindsey's parents and Belgrade wanted Lindsey to return to Conant with a full day of classes in the fall. The IEP team acquiesced to the demands of Lindsey's parents, and Lindsey began school on August 27, 2003 with a six period day that included English, earth science, foods, physical education, lunch, and a resource period.

From the beginning of the 2003-04 school year, Lindsey behaved differently than she had in the spring. IHO Decision at 40. She took progressively longer to get to class, sometimes taking as much as twenty minutes to walk from her work room to classroom. As a result, Lindsey was generally late to class. In addition, Lindsey often had to be removed from class due to her vocalizations and other behaviors. Furthermore, Lindsey suffered from medical problems including an impacted bowel and a yeast infection. She also seemed fatigued and unsteady on her feet, and her motor skills appeared to have deteriorated. Because of medical and behavioral problems, Lindsey was in school for the full six periods on only five days during September and October 2003.

Concerned by Lindsey's behavior, the District sought help from the panel members. By this point, however, the panel was no longer actively involved in Lindsey's case, though it had not formally dissolved. Morris, Belgrade, and Dr. Winnega agreed to observe Lindsey in school. Morris and Belgrade observed on October 16, and Dr. Winnega observed on October 31. The IEP team held a meeting on November 5, 2003, which Morris, Belgrade, and Dr. Winnega attended in order to share their observations. Morris told the team that he believed Conant was not the appropriate placement for Lindsey and that she should be placed in a self-contained special education setting. Vol. 21 at 2274-77. Dr. Winnega agreed; she felt Lindsey needed to be removed from Conant as soon as possible. Vol. 6 at 2229. Belgrade continued to recommend that Lindsey remain in her current placement at Conant. Id. at 2228. Lindsey's regular education teachers, speech therapist, special education consultant, and the Conant administrators present at the IEP meeting all agreed with Morris and Dr. Winnega that Lindsey's needs were not being met at Conant. Id. at 2226-30.

At the end of the meeting, the District decided that Lindsey was not benefitting from Conant and changed her placement to a "multiple needs program" for disabled students that would provide "a safe environment and protective strategies"; would have the capacity "to conduct sophisticated behavior analysis and create behavioral inventions"; and would provide opportunities for Lindsey to interact with nondisabled peers. Vol. 6 at 2239. Though the District did not specify which school contained a multiple needs program appropriate for Lindsey, it recommended Lake Park High School, a multiple needs program run by the North DuPage Special Education Cooperative. Id. at 2240. Lindsey's parents disagreed with the placement and sought review of the District's decision in a due process hearing.

The IDEA provides for review of a school's placement decision in a hearing before an IHO. 20 U.S.C. § 1415(b)(6); 105 ILCS 5/14-8.02. Carolyn Smaron was appointed as IHO for Lindsey's case. The IHO heard forty-two days of testimony, the longest special education due process hearing in Illinois history. Following the hearing, the IHO issued a sixty-one page decision in which she concluded that the District's placement decision was appropriate. Lindsey's parents, the defendants in this action, have appealed the IHO's decision to the Court, as is their right. 20 U.S.C. § 1415(i)(2)(a). In addition to asking the Court to overturn the IHO's decision and order for Lindsey to again be placed at Conant, defendants ask the Court to direct the District to hire an independent behavior specialist, chosen by defendants and approved by the Court, to develop a functional behavioral analysis and behavior intervention plan; pay the behavior specialist to provide ongoing training and consultation to District staff and Lindsey's parents and have ongoing authority over the implementation of Lindsey's program at Conant; and award Lindsey two years of compensatory education following her graduation from or "aging out" of Conant.

The parents have also filed a cross-claim against the Illinois State Board of Education in which they allege that the ISBE violated the IDEA, Americans with Disabilities Act, and section 504 of the Rehabilitation Act by failing to ensure that the District educate Lindsey at Conant. In the cross-claim, Lindsey's parents ask the Court to direct the ISBE to implement targeted monitoring of the District for IDEA compliance and to oversee Lindsey's placement to ensure compliance with the IDEA and Lindsey's IEP.

Rowley Requirements

The IDEA guarantees children with disabilities the right to a FAPE. 20 U.S.C. § 1412(a)(1). The Supreme Court has articulated a two-part test to determine whether a school has fulfilled its duty to provide a FAPE: (1) has the school district complied with the procedures provided by the IDEA; and (2) is the student's IEP reasonably calculated to provide educational benefits. Hendrick Hudson Dist. Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 (1982). If the school district fails either part of the Rowley test, the student's right to a FAPE has been denied.

For ease of analysis, the Court will address defendants' Rowley claims according to the time ...


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