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Board of Education of Homewood Lossmoor Community High School District No. 233 v. Illinois State Board of Education

May 1, 2008

BOARD OF EDUCATION OF HOMEWOOD FLOSSMOOR COMMUNITY HIGH SCHOOL DISTRICT NO. 233, PLAINTIFF,
v.
ILLINOIS STATE BOARD OF EDUCATION AND ALEX B., BY AND THROUGH HIS PARENTS AND NEXT FRIENDS ANNE AND TRACY S., DEFENDANT .



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

The Board of Education of Homewood Flossmoor Community High School District 233 ("Homewood Flossmoor") appeals a decision by an administrative hearing officer overturning its individual education plan ("IEP") for Alex B. ("Alex"). After Alex experienced problems at his local public school, especially during his seventh grade year, the elementary district sent Alex to a private school, Elim Christian School ("Elim") for his eighth grade year. Homewood Flossmoor became responsible for Alex's education as of his ninth grade year. At Alex's IEP review at the end of his eighth grade year, Homewood Flossmoor determined that he should attend the Fundamentals Program, a special education program at Homewood Flossmoor's community high school, the next year. Alex's mother appealed the decision to an administrative hearing officer, who reversed it and ordered that Alex instead be sent to Elim. In doing so, the officer found that the IEP did not provide Alex with a free and appropriate education as required under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1414 et seq. Homewood appealed the hearing officer's decision to this Court under 20 U.S.C. § 1415(i)(2).

The Parties each filed Motions for Summary Judgment. The Court initially found it unclear whether the hearing officer applied the correct standard as announced by the Supreme Court in Bd. of Educ. V. Rowley, 458 U.S. 176, 207 (1982) in reviewing the IEP and thus denied the Parties' motions and remanded the decision to the hearing officer for clarification. On remand, the hearing officer stated that he applied the Rowley standard and reiterated his conclusion that Alex's placement at Homewood Flossmoor was not reasonably calculated to provide him with an educational benefit. It is undisputed that this is the proper legal standard. The Motions for Summary Judgment are once again before the Court.

STATEMENT OF FACTS

Alex, who was fifteen at the time this litigation began, suffers from mental retardation, attention deficit hyperactivity disorder, pervasive developmental delay, and seizure disorder. Defendant Statement of Facts ("Def. 56.1") at ¶¶ 1-2; Plaintiff Statement of Facts ("Pl. 56.1") at ¶ 1. He is eligible to receive special education services under the IDEA. Pl. 56.1 at 1. Alex attended a public school at Homewood School District 153 from his early childhood years through seventh grade. Pl. 56.1 at ¶ 3.

While at public school, Alex was educated in a self-contained special education classroom but had lunch and physical education with regular education students. Def. 56.1 at ¶ 3. He exhibited behavioral problems that impeded his ability to learn in the classroom and he did not make significant academic progress. Id. at ¶¶ 4-5. Specifically, Alex is easily distracted, reacts to noises and requires rigid structure and routine in his daily activities. Id. at ¶¶ 9, 13. He exhibits immature and inappropriate behavior in group settings, especially with non-disabled peers, and has demonstrated destructive behaviors. Id. at ¶¶ 10-11. School staff became concerned with Alex's behavior. Pl. 56.1 at ¶ 5. These behavioral problems escalated during Alex's seventh grade year.

In August of 2004, Alex's IEP team met to review Alex's education program and determined that the elementary district was unable to meet his needs. Pl. 56.1 at ¶¶ 6-7. The team placed Alex at Elim Christian School ("Elim") for his eighth grade year. Id. at ¶ 7. Elim serves only special education students. Id. at ¶ 8. Classes contain approximately eight students and each class is staffed by a teacher and an aide. Id. The students in Alex's class ranged in age from 12 to 15. Id. In addition to academics, Elim offers pre-vocational and vocational programs. Def. 56.1 at ¶ 14. However, Alex did not participate in vocational activities during his eighth grade year. Pl. 56.1 at ¶ 32. While at Elim, Alex made significant educational gains and showed significant improvement in his behavior. Def. 56.1 at ¶¶ 7-8. Although he met all of his goals for the year, he was retained in eighth grade for the 2005-2006 school year. Pl. 56.1 at ¶ 31.

Defendant Homewood Flossmoor took responsibility for Alex's education as of his ninth grade year. At the annual review of Alex's IEP on May 18, 2005, near the end of his eighth grade year, the IEP team recommended that he be placed in the Fundamentals Program at Homewood Flossmoor Community High School District 233 for the following year. Id. at ¶ 10. The Fundamentals Program is a self-contained special education program. Id. at ¶¶ 11-13. The students in the program range in age from 14 to 18 years old. Id. at ¶ 15. Classes are staffed with a teacher and an aide, and class sizes do not exceed ten students. Id. at ¶ 17. The Fundamentals Program has a vocational component -- students are able to get jobs and are provided with a job coach. Id. at ¶¶ 12-13, 28. The program is offered at two levels: Fundamentals I for lower functioning students and Fundamentals II for higher functioning students. Id. at ¶ 14. Although Alex is a higher functioning student, his team recommended placing him in Fundamentals I to facilitate a smoother transition. Id. at ¶ 16.

Fundamentals students ride to school in a designated bus. An aide meets the bus when it arrives and walks the students to class. Id. at ¶ 19. The Fundamentals classes are located in close proximity to each other in a different section of the high school than regular education classes in order to limit distractions and minimize unstructured time in the hallways. Id. at ¶ 20. During transition periods when students are in the hallway, there is one aide present per two students. Id. at ¶ 21. Alex's IEP team recommended he have limited participation in unstructured activities. Id. at ¶ 26.

If placed in the Fundamentals Program, Alex would be mainstreamed for lunch and physical education. Def. 56.1 at ¶ 12; Pl.56.1 at ¶ 23. There are also opportunities for mainstreaming during other school activities and a co-curricular group that orchestrates fundraisers and activities with regular education peers. Pl. 56.1 at ¶¶ 23, 27. Fundamentals students are also mainstreamed into regular classes as appropriate. Id. at ¶ 25.

Alex's mother objected to his removal from Elim and his placement at Homewood Flossmoor and requested a due process hearing as provided for under the IDEA to review the placement. Def. 56.1 at ¶ 34. She also invoked his right to stay-put placement under the IDEA and as such, Alex remains at Elim pending the outcome of these proceedings. Id. at ¶¶ 35-36.

A hearing officer heard testimony and received exhibits from both parties in an administrative hearing before the Illinois State Board of Education. The officer noted that Alex is easily distracted, especially by noise and changes in his routine and has a history of annoying and alienating regular education peers when given the opportunity to interact with them. Administrative Record ("Admin. Rec.") at 12-13. He found that the Fundamentals Program is "very similar" to the program at the elementary district, which did not work for Alex. Id. Thus, the officer found that the Fundamentals Program was inappropriate for Alex and would likely fail for two main reasons:

(1) the large Homewood Flossmoor High School complex would likely expose Alex to too much noise and distraction; and (2) it would be a mistake to place Alex in mainstream settings for lunch and P.E., because in the past his interactions with ...


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