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John M. v. Board of Education of Evanston Township High School Dist. 202

August 18, 2006


The opinion of the court was delivered by: James F. Holderman, Chief Judge


John M., ("John") by his parents and next of friend Christine M. and Michael M. (collectively "John M.") filed a first amended complaint on March 17, 2006 seeking relief pursuant to the Individuals with Disabilities Education Act ("IDEA") and its amended form, the Individual with Disabilities Education Improvement Act of 2004, ("IDEIA") 20 U.S.C. § 1400 et seq, and the Illinois School Code alleging that defendants Evanston Township High School District 202, its Board of Education and its Superintendent (collectively "ETHS") have denied John M. a free, appropriate public education in the least restrictive environment. (Dkt. No. 17 at pg. 1). Pending before the court are John M's motion for preliminary injunction and to enforce the stay put placement (Dkt. No. 19), and motion to supplement the administrative record and present additional evidence. (Dkt. No. 21). For the reasons set forth below, this court grants John M's pending motions.


A. John M.

The following information is set forth in John M.'s first amended complaint of March 17, 2006. John is a 15-year-old boy with Down Syndrome living with his parents, older sister and younger brother in Evanston, Illinois. (Dkt. No. 17 at ¶ 4). He was a freshman at ETHS, the public high school in Evanston, during the 2005 - 2006 school year and presumably will be a sophomore in the Fall of 2006. (Id.) ETHS receives federal funds and is bound by the requirements of the IDEA and IDEIA. (Id. at ¶ 7).

John's Down Syndorme impairs his communication, learning, social-emotional education and growth, his relationship with classmates, and at times his behavior. (Id. at ¶ 15). John has motor-planning problems that affect his speech, frustrating his ability to express himself and impeded conversations with classmates. (Id.) Before attending ETHS, John attended sixth through eighth grade at a public middle school operated by Evanston Community Consolidated School District 65 ("District 65"). (Id. at ¶ 16). Students progress from District 65 to ETHS for high school. (Id.)

B. John's Middle School Education at District 65

While at District 65, John was primarily educated in a regular classroom through the assistance of a co-teacher devoted exclusively to John. (Id.) District 65, in compliance with IDEA and IDEIA, drafted an Individualized Education Program ("IEP") while John attended District 65. (Id.) John's District 65 IEP supplemented the regular classroom instruction with instruction through the co-teaching of a special education teacher who co-taught John in Reading, Language Arts and Math classes. (Id.) The use of a co-teacher provided inclusion for John by allowing him to participate in the regular classroom lesson with his peers where applicable, but also allowed him to receive individualized attention when needed while still remaining in the regular classroom setting. The District 65 IEP provided John 200 minutes of co-teaching per week by the special education teacher in each of the three regular classes totaling 600 minutes per week of instruction. (Id.) The IEP also provided 200 additional minutes per week of "resource-room" instruction by the special education teacher above and beyond the 600 minutes of instruction provided in the traditional classroom setting. (Id.)

Additionally, District 65 provided John with a "Circle of Friends" program. (Id.) The "Circle of Friends" program addressed the social and speech deficits resulting from John's disability. (Id. at ¶ 17). Under the program, a social worker and speech therapist assisted John in his social and conversational interactions with students that John interacted with over his lunch hour. (Id.) John socialized with these students on a regular basis and so it provided a comfortable environment for John in which the social worker and speech therapist could work on their goal of increasing his ability to converse with others. (Id.) John, his parents and his regular classroom teachers recognized that John's ability to converse and interact in social settings, including the ability to develop friendships, increased through the "Circle of Friends" program and this increased John's ability in other settings including in the classroom. (Id.)

While at District 65, John also developed appropriate interests for a boy of his age and progressed socially and emotionally outside of the traditional academic classroom setting. (Id. at ¶ 18). According to the complaint, "By the end of eighth grade, John was described by his physical education teacher as having a 'gung ho' attitude toward class, and that he was a 'much improved athlete' who was an excellent shooter in basketball and had a baseball swing that [the teacher] used as a model for class." (Id.) John interacted with his peers in impromptu games in the schoolyard, had a strong interest in sports, had a perfect or near perfect attendance record, participated in the band, and was described by District 65 staff as "charismatic." (Id.) John M. alleges that his academic and social development at District 65 was a direct result of the assistance he received under the District 65 IEP including the social and speech assistance through the "Circle of Friends," and the special education assistance he received both in the regular classroom and through supplemental instruction. (Id.)

C. John's Education at ETHS and Administrative Hearing

John's parents met with ETHS personnel in the Spring of 2005 to draft John's IEP for his freshman year at ETHS. (Id. at ¶ 20). District 65 representatives also attended the first two meetings describing John's education at District 65, their inclusive model of educating John and the perceived benefits to John's education and development. (Id.) John M. alleges that the ETHS special education director and staff immediately rejected the District 65 model and concluded that John should be placed in ETHS's special education program instead of a regular classroom. (Id.) John M. argues that ETHS reached this conclusion without individually evaluating him. (Id.) Instead, ETHS allegedly demanded information about John's IQ and stated that the District 65 model would not work at ETHS because the general classroom instruction would have to be drastically altered. (Id.) ETHS allegedly will not provide co-teaching within a regular classroom, will only teach John in a special education resource room that does not have the regular classroom curriculum nor regular classroom peers, and will not provide a "Circle of Friends" type social and speech therapy. ETHS proposed IEP places John in special education classes, a newly developed computer-led remedial reading class and places John in a special education physical education class. (Id. at ¶ 22). ETHS also proposed to reduce John's speech therapy from 160 minutes per week to 86 minutes per week and would not commit to the number of minutes per week that John would receive from a special education teacher.

John's parents objected to ETHS's proposed IEP and proceeded to an administrative hearing before James A. Wolter, EdD. ("Dr. Wolter" or "hearing officer"). (Id. at ΒΆ 24). John M. sought an IEP at ETHS comparable to the District 65 IEP including: (1) placement in regular History, English and Physical Education classes, (2) information on how he would be graded in his regular classes, (3) 43 additional minutes per week of consultation with a social worker, (4) a "Circle of Friends" type program, (5) designation of resources to facilitate John's participation in a regular class setting, and (6) 43 additional minutes a week in speech therapy. (Id.) Dr. Wolter sided with ETHS and John M. has filed his pending suit in this court seeking review of Dr. Wolter's decision. John seeks an order from this court: (1) reversing Dr. Wolter's decision, (2) finding that ETHS has violated John's right to a free, appropriate public education in the least restrictive environment, (3) ordering that John should be enrolled in regular English, History and Physical Education classes that include non-disabled students, (4) ordering ETHS to convene an IEP meeting to determine how John M. can properly attend regular classes, (5) ordering a co-teacher in John's regular classes, or in the alternative, a minimum of 215 minutes per week of consultation time between the special ...

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