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John M. v. Board of Education of the City of Chicago

May 4, 2009

JOHN M., A MINOR, AND LISA M., INDIVIDUALLY AND AS GUARDIAN AND NEXT FRIEND OF JOHN M., PLAINTIFFS,
v.
BOARD OF EDUCATION OF THE CITY OF CHICAGO, DISTRICT 299, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Morton Denlow

MEMORANDUM OPINION AND ORDER

John M. ("John"), a minor, through his mother, Lisa M., individually and as guardian and next friend (collectively, "Plaintiffs"), initiated this federal action to recover attorney's fees and costs under 20 U.S.C. § 1415(i)(3)(B) as a prevailing party arising out of an administrative proceeding brought against the Board of Education of the City of Chicago, District 299 ("Defendant") under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. This case is currently before the Court for decision as a trial on the papers. The Court held oral argument on April 23, 2009.

The parties present the issue of whether Plaintiffs are entitled to recover some or all of their attorney's fees and costs incurred in the administrative hearing, as well as in bringing this action. The Court has carefully considered the record, declarations, exhibits, and the briefs and arguments of counsel. The following constitute the Court's findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure ("Rule 52(a)").

I. BACKGROUND FACTS

A. The Three Individualized Education Programs

John is an eleven year-old boy who experiences problems in school and is eligible for services under the IDEA. Complaint, at ¶¶ 3, 6.*fn1 His school district of residence is Chicago Public School District Number 299 ("CPS"). Id. at ¶ 3. Between 2005 and 2008, John attended two CPS elementary schools, Wacker Elementary ("Wacker") and Evers Elementary School ("Evers"). Id. at ¶¶ 6, 7, 11; D&O, at 3. Based upon a determination that John had a mild cognitive impairment, he was eligible for special education services and attended second grade and most of third grade in a self-contained classroom, which is a small classroom exclusively for students with disabilities. Complaint, at ¶ 6. At the beginning of his 2005-2006 school year, John was transferred from his home school, Wacker, to Evers because Wacker did not have a self-contained classroom. Id. at ¶ 7.

The first individualized education program ("IEP") that is relevant to the time period at issue was created in April 2005 by Ellistene Lewis-Gordon ("Ms. Gordon"), who was John's teacher when he attended the self-contained classroom. D&O, at 4. According to this IEP, John's disabilities were mild cognitive impairment and speech and language impairment. Id. at 5. According to Ms. Gordon, John's greatest area of need was reading, and the IEP therefore allocated more than two hours each day to reading instruction; John was unable to read his textbooks in his science and social studies classes. Id. at 6. Ms. Gordon indicated John made acceptable academic progress during the 2005-2006 school year; however, she conceded his test scores showed limited progress in reading-only three months in a year's time. Id. at 7.

Subsequently, John received a triennial evaluation in April 2006, at which time a CPS psychologist determined John had cognitive skills in the "low average range" with individual subtest scores ranging from low average to average. Complaint,at ¶ 8; D&O, at 7-8. Based upon these scores, the psychologist concluded John was not cognitively impaired. Id. His eligibility was therefore changed to learning disabled. Id. Though the psychologist did not expressly diagnose John with attention deficit hyperactivity disorder ("ADHD"), she advised he would benefit from classroom modifications to address his "lack of focus." D&O, at 8. John's speech and language assessment revealed his receptive language skills were "moderately low" and his expressive language skills were "extremely low." Id.

After an IEP was created in April 2006 ("April 2006 IEP") based upon the triennial evaluation, CPS transferred John from a self-contained classroom to a regular classroom for most of his school day. Complaint, at ¶ 9; D&O, at 8. Under this new IEP, John's special education instruction time was "significantly decreased" from 1230 to 430 minutes per week. D&O,at 8. Specifically, his IEP provided for approximately 400 minutes per week-or approximately one hour and twenty minutes per day-of language arts instruction in a resource room with a special education teacher. Complaint, at ¶ 9; D&O, at 8.His IEP also allowed for thirty minutes of weekly speech and language instruction. D&O, at 8-9. The decision to transfer John was based in part on the results of the psychological evaluation, which showed John was not cognitively delayed, but in fact had low average intellectual ability. Id. at 8.

John therefore finished third grade at Evers in a regular classroom. D&O, at 3. He was transferred to Wacker, his home school, at the beginning of his fourth grade school year and has remained there in a regular classroom with resource room support. D&O, at 3; Answer, at ¶ 9. John's mother, Lisa M., disagreed with the IEP team decision to transfer her son from a self-contained classroom to a regular classroom with resource room support. Answer, at ¶ 10; D&O, at 4, 9-10. She also voiced concerns John was not making reasonable progress in the regular classroom. Answer,at ¶ 11; D&O, at 9-10. She repeated those concerns at IEP meetings in 2006, 2007 and 2008. Answer,at ¶ 11; D&O, at 4.

Lisa M. also wrote a series of letters to CPS expressing her concerns. D&O, at 4, 9-10. For example, in a May 2006 request for another IEP meeting, she stated "I would like [John] to be placed back into the special education class, because he was making a lot of progress in that class." Id. at 9-10. (emphasis added by IHO in D&O). During a June 2006 meeting, Lisa M. provided the IEP team with a letter listing seven ideas to help her son meet his IEP goals, including: using a paraprofessional to help John with reading; seating John in the front of the class, reducing homework assignments, and providing after school or Saturday tutoring. Id. at 10. She reiterated her belief that the self-contained classroom had satisfied John's needs, noting "[t]he teaching strategy and method needs to be similar to Mrs. Gordon's way of teaching." Id.

The third IEP that is relevant to the time period at issue was created in March 2007 ("March 2007 IEP"), during John's fourth grade year. D&O, at 10, 12-13. Like the April 2006 IEP, this IEP provided 400 minutes per week of specialized instruction in reading and language arts, and thirty minutes per week of speech and language therapy. D&O, at 13. Although the April 2006 IEP included two reading and language arts goals, the March 2007 IEP featured only one such goal, which did not provide a specific present level of performance but instead stated John "functions below his current grade level." D&O, at 13.

During the summer and fall of 2007, Lisa M. enrolled John in a tutoring program at the Star Learning Center at Xavier University. Complaint,at ¶ 12. By the end of the summer and fall sessions, John's reading comprehension increased from a first to second grade level and his word recognition increased from a second to third grade level. Complaint,at ¶ 12; D&O, at 18. During the fall of 2007, John attended the fifth grade at Wacker and continued to receive resource room support. Complaint,at ¶ 12; D&O, at 13. He currently attends the sixth grade at Wacker. Complaint, at ¶ 3.

B. Request for Due Process Hearing

In the fall of 2007, Lisa M. retained counsel to represent her and her son. Id. at ¶ 13. Counsel requested a due process hearing on November 1, 2007 to redress violations of the IDEA. Id. The due process hearing request alleged CPS did not provide a free and appropriate public education ("FAPE") during the period beginning November 1, 2005. D&O, at 2. The parties held an IEP meeting in December 2007. Id. at 1. The parties resolved some of the issues at this meeting, including revising John's IEP by increasing his resource room instruction to 540 minutes per week. Id. at 1, 13. The parties convened a second IEP meeting in February 2008 to consider an independent speech and language and an assistive technology ("AT") evaluation. Id. Although the parties again revised John's IEP during this meeting, by increasing John's speech and language therapy to sixty minutes per week and updating and clarifying AT accommodations, they still did not resolve all of the issues. Id. Lisa M. requested various independent educational evaluations from educational professionals outside CPS; the results of these reports are summarized in the decision issued by the independent hearing officer ("IHO"). See D&O, at 14-18.

On February 15, 2008, Defendant made an offer of settlement pursuant to 20 U.S.C. § 1415(i)(3)(D)(i). See Dkt. 16, at Ex. A. Specifically, Defendant offered the following:

(1) one hour per week of after school tutoring by a certified special education provider or qualified tutor for one school year (i.e. forty weeks); (2) sixty minutes per week of direct speech and language services; (3) payment of the independent speech and language evaluation by Dr. Janet Marsden-Johnson; and (4) an IEP meeting to consider the results of the independent evaluation and to implement the previous terms of settlement. See id. Plaintiffs did not accept this offer. PM, at 5. The five-day administrative hearing ultimately commenced on February 25, 2008 and continued on various dates in February, March and April of 2008. D&O, at 1.

C. Issues Raised Before The Independent Hearing Officer

Plaintiffs raised five issues before the IHO, principally alleging that CPS denied John a FAPE beginning in November 2005 for five reasons: (1) by failing to conduct adequate or timely assessments of all areas of potential disabilities including speech and language, occupational therapy ("OT"), learning disabilities and social/emotional; as a result, the IEP for the relevant period did not address, or addressed inadequately, John's learning impediments and attentional difficulties; (2) by failing to provide essential related services, with adequate levels of intensity, in speech and language, OT, AT and social work services; (3) by failing to identify and use effective teaching methodologies at a sufficiently intensive level to enable John to make progress commensurate with his cognitive skills; (4) by failing to offer a complete curricula in reading, language arts, math, social studies and science; as a result, John did not make academic progress; and (5) because John's IEP for the two years prior to the hearing featured numerous flaws in that it:

1) included present levels of performance that did not accurately and objectively state John's skills and functional levels;

2) provided goal statements that were vague and not measurable or that set an increase in skill level as a goal that was not commensurate with John's potential for development;

3) failed to address John's attentional and organizational limitations;

4) failed to identify the type of methodology to be used to remediate John's reading and math skills;

5) provided for an inadequate level of related services in that: (a) speech and language services were authorized at only thirty minutes per week, even though such services should be offered for at least sixty minutes for a student with significantly depressed expressive and receptive language skills; (b) social work services were not offered prior to January 2008, despite evidence of John's poor social interaction; and (c) AT resources were not implemented in accordance with recommendations;

6) offered OT only on a consultative basis, despite evidence that direct services were required; and

7) failed to authorize extended school year services, despite substantial evidence that John had experienced a total lack of educational progress over the prior two years.

Id. at 2.

D. Relief Requested From Independent Hearing Officer

Plaintiffs requested six items of relief. First, Plaintiffs requested private therapeutic day school placement at public expense. Second, they requested an order directing CPS to pay for independent educational evaluations in areas of identified need, including OT, social/emotional, speech/language, and AT. Third, they requested an order requiring CPS to offer related services in sufficient intensity to allow John access to educational opportunity. Fourth, they requested an order for CPS to administer compensatory education services for loss of FAPE during the prior two years, including after school tutoring by a certified special education teacher for one hour per week for two years. Fifth, they requested an order for CPS to convene an IEP meeting to ...


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