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Casey K. v. St. Anne Community High School District No. 302

August 14, 2006

CASEY K., BY NORMAN AND MARI K., INDIVIDUALLY AND AS HIS PARENTS AND NEXT FRIENDS, PLAINTIFFS,
v.
ST. ANNE COMMUNITY HIGH SCHOOL DISTRICT NO. 302 AND ILLINOIS STATE BOARD OF EDUCATION, DEFENDANTS.



The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge

OPINION

Plaintiffs brought this action under the Individuals with Disabilities in Education Act (IDEA), 20 U.S.C. § 1401 et seq., against Defendants St. Anne Community High School District No. 302 (District) and the Illinois State Board of Education (ISBE). The parties have both filed motions for summary judgment. For the reasons that follow, Defendant District's Motion for Summary Judgment (#92) is GRANTED and Plaintiffs' Motion for Summary Judgment (#98) is DENIED.

PROCEDURAL BACKGROUND

Plaintiff Casey K. is eligible for special education services. During Casey's eighth grade year, his parents placed him in the Acacia Academy, a private school, because they did not believe the St. Anne Elementary School could provide him with the educational services he was entitled to under the IDEA. Plaintiffs then sought a due process hearing under the IDEA in an effort to make the elementary school district pay for the private school placement. The parties settled the dispute on March 4, 2004, and agreed that Casey could stay at Acacia at the expense of the elementary school district until May 12, 2004, when Casey would reach the age of 15 and become the responsibility of the high school. This agreement was incorporated into an Individualized Education Plan (IEP) on March 25, 2004.

When Casey turned 15, the District issued a new IEP for him as it was entitled to do because it is a separate school district from the elementary school. The IEP found that Casey could be educated at the local high school. Plaintiffs challenged the new IEP and again sought a due process hearing under the IDEA. Pursuant to 20 U.S.C. § 1415(j), Plaintiffs also invoked the IDEA's stay put provision to allow Casey to remain at Acacia during the pendency of the proceedings. Both parties filed motions for temporary restraining order seeking a determination as to the appropriate placement for Casey pending resolution of administrative and judicial proceedings. On August 13, 2004, Judge Joe Billy McDade entered an order (#11) finding that Acacia was the appropriate stay put placement pursuant to § 1415(j) of the IDEA. The District appealed this decision.

Subsequently, on October 19, 2004, following the due process hearing requested by Plaintiffs, Dr. Marie Bracki, an Impartial Hearing Officer (IHO), determined that Casey's appropriate educational placement was in the District, thus changing Casey's educational placement from Acacia School. On January 8, 2005, Plaintiffs filed an Amended Complaint (#22) seeking to overturn the IHO's decision. Plaintiffs then filed a motion for temporary restraining order (#33) to enforce the stay put order issued by Judge McDade which requires placement of Casey at Acacia at public expense during the pendency of this matter. This court granted the motion for temporary restraining order on February 17, 2005.*fn1 No appeal was taken from this order. Subsequently, the Seventh Circuit Court of Appeals affirmed Judge McDade's determination that Acacia was the appropriate stay put placement. See Casey K. v. St. Anne Comm. High Sch. Dist. No. 302, 400 F.3d 508 (7th Cir. 2005). Thus, Casey has remained at Acacia during the pendency of these proceedings. This matter is now before the court on review of the decision of the IHO finding the District to be the appropriate placement for Casey.

FACTS

Casey lives with his parents Norman and Mari in St. Anne, Illinois, within the boundaries of the District. Casey, now sixteen years of age, has dyslexia, dysgraphia, memory deficits, and other learning disabilities. In May 2003, Cindy Lee, Casey's private behavior therapist, found that Casey was experiencing serious anger and anxiety problems as a result of his lack of progress in learning to read at St. Anne Grade School. This situation lead to Casey making a verbal threat to blow up the St. Anne Grade School while attending there. During 2003, Casey's parents also had him tested by Dr. Rudy Lorber who determined that Casey was dyslexic, severely learning disabled, and required specialized reading instruction. Dr. Lorber further determined that Casey's academic, cognitive, and linguistic challenges affected his self esteem. On the first day of school for Casey's eighth grade year, Mari took Casey to the grade school, but he would not get out of the car. As a result, Casey's parents placed him at Acacia for his eighth grade year.*fn2 Casey's emotional state and overall demeanor improved after progressing in his reading ability at Acacia.

Acacia is located approximately 66 miles from St. Anne in LeGrange, Illinois.*fn3 Acacia is a private, therapeutic day school focusing on education for children with learning disabilities for grades K-12. At Acacia, Casey is instructed using the Wilson Reading Program, Lindamood-Bell, and Great Leaps methodologies. Under the Wilson Reading Program, a student starts at level one regardless of the student's reading level at the time the program is started. The program has twelve levels. The Wilson Reading Program focuses on spelling and decoding, or understanding the phonemes that make up words. Great Leaps is a program that works with reading fluency.

In September 2003 and again in February 2004, Casey was administered the Woodcock-Johnson III Achievement Tests at Acacia. The subtest results for the September 2003 test were as follows: (1) Spelling: Percentile - 1; RPI - 4/90; (2) Spelling of Sounds: Percentile - 35; RPI - 84/90; (3) Reading Fluency: Percentile - 2; RPI - 0/90.*fn4 The subtest results of the February 2004 test were as follows: (1) Spelling: Percentile - 1; RPI - 5/90; (2) Spelling of Sounds: Percentile - 32; RPI -82/90; (3) Reading Fluency: Percentile - 2; RPI - 0/90. Kathy Foucks, the principal of Acacia, testified that Casey should have theoretically scored much higher in February 2004 than when he started in September 2003. A letter from Acacia dated March 25, 2006, indicates Casey's overall reading comprehension scores improved from a 2.3 grade level to a 4.6 grade level as result of the Wilson Reading System.

The District developed a proposed IEP for Casey on May 17, 2004. Prior to the IEP meeting, the Parents did not know all of the specifics regarding the programs proposed by the District and asked for an explanation of them. Prior to the IEP meeting, Mari met with Dr. Harris, then superintendent of the District. Mari provided Dr. Harris with a copy of the psychoeducational report of Dr. Lorber. Mari also called Sonnia Sovino, the District's guidance counselor, to insure no additional information was needed for the IEP meeting. The District never requested additional information prior to the IEP meeting.

The IEP contained goals and objectives in the areas of reading fluency and understanding, reading comprehension, math, organization, written expression, handwriting, visual motor skills, and receptive/expressive language skills. The goals were the same as those used by Acacia, but did not include those goals already met by Casey. The Parents did not object to the goals. The IEP set forth a self-contained special education placement for Casey with direct services in a special education classroom in reading, language arts, mathematics, social studies, science, and study hall, resulting in 89% of Casey's day being spent in a special education setting. Tricia Downs is the District's reading and language arts teacher. Downs received training in the Read 180 Program proposed by the District. Downs testified that the special education reading and language arts classes had between 4 and 13 students and had a full time instructional aide. The grade levels in Downs' classes ranged from Kindergarten to 6th grade. In September 2004, Casey was reading at a 5th grade level. Jeanne Harroun was to serve as Casey's social studies teacher in the District. Harroun is special education certified. Harroun testified before the IHO that her special education classes had between four and fourteen students and employed the use of a full time instructional aide. Harroun further testified she used one-to-one or small group instruction to meet the needs of students like Casey.

The math teacher under Casey's IEP was to be Bill Haveneer, who testified to teaching three special education classes with between 7 and 11 students. Each class also had an instructional aide. Havener further testified he could provide one-to-one assistance to Casey during his study hall period. The IEP proposed by the District further provided for 50 minutes per week of direct speech/language services, 15 minutes per week of indirect speech/language services, and 30 minutes per week of occupational therapy. Acacia offered 10 to 15 minutes per week of direct speech/ language services and ten minutes per week of occupational therapy. Dr. Rudy Lorber, retained by Casey's parents, testified that Casey should have more than 15 minutes per week of speech and language services.

At the IEP meeting, the District also proposed the Read 180 program for Casey. The District informed Casey's parents at the IEP meeting it would obtain more information for them regarding the program because it did not have written materials available at that time. The Read 180 program is designed to use small-group instruction, computer-assisted instruction, and individualized instruction for each student. Sharalyn Bone, a Read 180 teacher in a different school district, testified before the IHO that she trained St. Anne High School teachers in the Read 180 program. Bone testified she took the teachers through the procedures she would use in a normal day of teaching the Read 180 program. The training consisted of one 7.5 hour day and two other shorter visits to set up the computer system and make sure the teachers had the supplies they needed. Bone testified she could not "say enough good things about" the Read 180 program. Nancy Palmer, an assessment specialist for the Des Moines Independent Community School District testified regarding the Read 180 program that "some students did well with it, and some didn't do as well, but on the whole, we were seeing good scores." Documentation submitted by the District to the IHO indicated that a study of students at a North Carolina school and a Nevada school demonstrated improvement in students with learning disabilities through use of the Read 180 program. The Read 180 Program Guide sets forth a "90 Minute Instructional Model," stating that students should be taught for 90 minutes a day for five days each week for "best results." The IEP developed by the District stated that Casey would only have Read 180 for 250 minutes per week or 50 minutes per day.

The IEP further required extended school year services (ESY) for Casey, and the District offered Casey the 20th Century program to begin on May 24, 2004.*fn5 The 20th Century program offered general curricular instruction, plus social and cultural enrichment activities. The purpose of the program is to "provide expanded academic enrichment opportunities for children attending low performing schools." This program focused on language arts and math with experienced based activities, and offered a literary approach including vocabulary, comprehension and fluency. The District indicated related services consisting of 50 minutes per week of speech/language therapy and 30 minutes per week of occupational therapy could be offered on the fifth day of each week when the 20th Century program was not being used. Casey did not participate in the 20th Century program.

Casey's parents rejected the IEP proposed by the District and requested a due process hearing within three hours of the IEP meeting.

Jean Kulczyk, who holds a master's degree in education and has experience in teaching children with disabilities, reviewed the public relations kit for the Read 180 program. Kulczyk found the Read 180 program the District planned to implement was not individualized for Casey, was non-responsive to Casey's deficit in creative writings skills, was likely to frustrate Casey, and targets a less disabled population than Casey. Kulczyk also found that a portion of the students in studies of the Read 180 program did not progress and asserted this portion of students was likely the more severely learning disabled students. Kulczyk further determined the 21st Century Program was deficient for Casey. Kulczyk also found that Casey made substantial improvement in reading as a result of the Wilson Reading Program employed by Acacia, finding that Casey made two years of progress in reading. Kulczyk stated the Wilson program was targeted to severely disabled children like Casey and is designed to be individualized by teachers for students. Her report was presented at the due process hearing.

Following the hearing, the IHO determined that the District's IEP was appropriate and ordered Casey be transferred from Acacia to the District at the end of the semester. In her decision, the IHO indicated that the "transportation issue [between St. Anne and ...


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