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Brett K. v. Momence Community Unit School District No. 1

March 30, 2007


The opinion of the court was delivered by: Judge James B. Zagel



Plaintiffs Brett K., Jr. and his parents (collectively "Plaintiffs") live in Momence School District where Brett is enrolled. Brett was 9 at a the time of a hearing that determined that he was eligible for special education for the condition of "Autism, Mentally Impaired, Speech/Language Impaired." The child is essentially non-verbal and incontinent. There is a history of actions taken with respect to the child but this case concerns events beginning in 2005.

Brett's father is a carpenter. His mother remains in the home as parent to Brett and three younger children.

In April, 2005 the parents and the Momence School District ("District or "Defendant") completed an Individualized Education Program ("IEP") that placed Brett in the Blue Cap School, a private therapeutic day school in Blue Island, about 50 miles from Momence. The District thought this was the closest available appropriate program. The District was to provide transportation and an individual aide to be with Brett and assist the teacher through the day. The IEP team did not authorize the presence of an aide on the bus transporting the child. During the summer of 2005, Brett's mother drove him to school on most days and a school bus was used on other days. The travel time in the car was an hour or less; the bus took longer-an hour to an hour and fifteen or thirty minutes. The parents sought a due process hearing on the IEP.

The post-IEP events led to a settlement agreement in July, 2006, which adopted the results of the IEP. It did not refer to precise methods of transportation other than mileage for the mother during June and July when she drove to Blue Cap. It did say that the District would pay for the support of an individual aide to ride the bus with Brett and serve as the classroom assistant unless the parties otherwise agree.

The parties are satisfied with Blue Cap and agree that it is the appropriate placement and that there is no alternative and appropriate placement closer to Brett's home.

The dispute is over transportation, a dispute that started at the very beginning of the process. The District does not own or operate its own buses. It contracts out the service. I infer that Brett's transportation situation was not unique in comparison to the transportation needs of all other students. Indeed the District is geographically large and many students spend an hour or more on the bus.

For the 2005-06 school year, the District arranged for a school bus from a neighboring district to transport Brett to Blue Cap. That bus picked Brett up first, then three other children from another district, and dropped off all of the children at schools in Cook County with Brett coming last off the bus. Brett was delivered to Blue Cap before it opened and he was not allowed in the building even when his classroom aide was at the school. This meant that Brett remained on the bus in the parking lot an additional twenty to thirty minutes.

Transporting the child was complicated in other ways as well. The District did eventually provide an aide to be on the bus with Brett, but did not do so initially. The bus driver told the District that the aide was needed and thereafter it was provided. There was also a problem with the harness of the child on the bus: it chafed. The bus contractor advised the District what kind of harness would work and the district provided one to the bus driver. The driver did not use it because it was too small; the driver improvised methods to reduce chafing by using the heavier winter clothing.

The parents reinstated the due process hearing request which raised two issues concerning transportation: (1) putting the child on a bus that had route which could require up to two hours of travel in each direction; and (2) providing an inadequate restraint leading to a risk of self-injury and abrasions. They asked that both of these problems be eliminated and asked for compensatory services, to wit, behavioral consultant services.

Settlement talks started which led to the July 2006 settlement. The District offered, in writing, three options and the parents thought option 1 might be acceptable. The District proposed transporting Brett without having the delay engendered by picking up, as the bus did, other students in Manteno. This, the District noted, would require it to acquire its own vehicle and to hire a driver. A new better harness would be acquired as well.*fn1 The parents responded, in writing from their attorney, that Option 1 was acceptable with two additional items: (a) thirty hours of compensatory services in the form of behavioral therapy, at a cost of $3,000; and (b) payment of the reasonable attorneys' fees incurred by the parents.*fn2 But the parents noted their understanding that at least one of the additional terms was not acceptable to the District, and so the hearing would go forth.*fn3

At the hearing many facts were agreed to. Brett engages in difficult behaviors-head butting, biting his fingers, thrashing on the floor and crying. He does these things at both school and at home. What was disputed is whether the acting out was made worse by the transportation process. It was conduct in the morning that was most significant because it was assumed that if the bus ride made things worse for Brett, it would be manifested to his teachers earlier rather than later in the day. The teachers, of course, did not see Brett much after the ride home. The school kept a log which was put into evidence. The evidence can be read in more than one way.

The teachers say that, despite acting out, Brett got through his programs in the morning. The parents point out that the log shows many more incidents in the mornings. The classroom aide reported acting out and other difficulties as often or more often in the afternoons. There was testimony of Blue Cap staff that acting out might have become more intense as a result of extended travel times and that it took 15 to 20 minutes, sometimes longer, for Brett to settle down in the mornings. The Blue Cap director thought that the travel times probably did affect his behavior but had no way to determine whether it was a minor factor or a major one since she had no comparative data.

Brett's mother did see Brett at the end of the day and she found him so irritable and tired upon his return that she did not take him to private speech therapy or out ...

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