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James v. Board of Education of Aptakisic-Tripp Community Consolidated School District No. 102

July 22, 2009

JAMES AND LEE ANNE D., INDIVIDUALLY AND AS NEXT FRIENDS OF SARAH D., A MINOR, PLAINTIFFS
v.
BOARD OF EDUCATION OF APTAKISIC-TRIPP COMMUNITY CONSOLIDATED SCHOOL DISTRICT NO. 102, DEFENDANT.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

This matter is before the Court on Plaintiffs' motion for summary judgment [53] and Defendant's cross-motion for summary judgment [57]. Plaintiffs, James and Lee Anne D., individually and as next friends of their minor daughter, Sarah D., bring this Individuals with Disabilities Education Act ("IDEA") suit, 20 U.S.C. §§ 1400-1491, against the Board of Education of Aptakisic-Tripp Community Consolidated School District No. 102 ("District"). Plaintiffs are appealing an administrative decision, issued by an Impartial Hearing Officer ("IHO"), finding that the District complied with the IDEA, and denying Plaintiffs' request for reimbursement for the cost of tuition at a private special education school. The cross-motions have been fully briefed. For the reasons set forth below, the Court denies Plaintiffs' motion for summary judgment and grants the District's motion for summary judgment.

I. Factual Background*fn1

Sarah is ten year old girl who has severe developmental dyslexia, a learning disorder that makes it difficult for her to learn to read. Def. Resp. Pl. SOF ¶¶ 4, 5. She is eligible for special education as a student with a learning disability and a speech-language impairment. Id. ¶ 5. Sarah attended Pritchett Elementary School ("Pritchett"), which is operated by the Defendant District, from kindergarten through the third grade. Pl. Resp. Def. SOF ¶ 6.

Sarah began receiving special education instruction at Pritchett in the first grade (2004-2005), at which time she received 800 minutes of special education instruction per week. Def. Resp. Pl. SOF ¶ 15. At the end of Sarah's first grade year, the District recommended that Sarah enroll in extended school year services ("ESY") for the summer to prevent regression. Pl. Resp. Def. SOF ¶ 26. Sarah's parents declined to enroll her in ESY at the District; instead, Sarah had private tutoring during the summer between her first and second grade years. AR 2012-13; 2649-50.

In second grade (2005-2006), the amount of time that Sarah spent receiving special education instruction increased to 830 minutes per week, which is approximately 48.8% of the week. AR 393. On April 20, 2006, Sarah's parents and representatives from the District met to develop an Individualized Education Program ("IEP") for Sarah's third grade year.*fn2 AR 1293. At that meeting, the team agreed to increase Sarah's special education minutes to 900 minutes per week (or 53% of the time) for her third grade year. AR 393. At the end of Sarah's second grade year, Sarah's parents again declined the District's recommendation that Sarah enroll in ESY for the summer. Pl. Resp. Def. SOF ¶ 26. Instead, Sarah's special education teacher from the District tutored her once a week that summer. AR 2013, 2045.

On November 30, 2006, in the fall of Sarah's third grade year, Sarah's IEP team met to discuss the 3-year re-evaluation required by the IDEA. 20 U.S.C. § 1414(a)(2). As part of Sarah's 3-year re-evaluation, the school psychologist completed a comprehensive psychoeducational evaluation of Sarah to assess her cognitive abilities, processing skills, and emotional and behavioral functioning. AR 1008. At the November 30, 2006 meeting, Plaintiffs shared with the rest of the IEP team an independent evaluation of Sarah conducted by a dyslexia clinic. Def. Resp. to Pl. SOF ¶ 45. The IEP team decided to stop the meeting and reconvene on December 8, 2006 so that the District representatives could read the report. Id.; AR 468, AR 474. When the IEP team reconvened on December 8th, the District "rejected" the report. AR 474. Also on December 8, 2006, the IEP team decided to have Sarah evaluated by the District's assistive technology facilitator to determine whether she could benefit from additional assistive technology services. AR 471.

The IEP team met again on February 8, 2007 to review the assistive technology evaluation and to discuss the new computer programs that they were using with Sarah. AR 577. At this time, Sarah's special education minutes again were increased to 990 minutes per week. At the February meeting, Plaintiffs expressed their view that a private placement might be most appropriate for Sarah. AR 580, 588. After reviewing the placement options, the team concluded that placement at Pritchett was appropriate, and that a private placement would be too restrictive. AR 588.

On May 3, 2007, the team met to formulate an IEP for Sarah's fourth grade year. AR 667. The team again discussed Sarah's placement, and her parents' view that Sarah should be placed at a private day school. AR 647. The team could not agree on an appropriate placement for Sarah. AR 648. Plaintiffs dissented from the District's recommendation that Sarah be placed at Pritchett. AR 679.

Between third and fourth grade, Sarah was enrolled in a reading program at Hyde Park Day School ("HPDS"), a state-approved private school for children with learning disabilities. Def. Resp. Pl. SOF at ¶ 53. Unhappy with what they perceived as Sarah's lack of progress after three years of special education at Pritchett, on June 18, 2007, Sarah's parents unilaterally enrolled her at HPDS for the 2007-08 school year. Def. Resp. Pl. SOF at ¶ 56.

II. Procedural Background

In July 2007, Sarah's parents requested a due process hearing, as provided for in the IDEA, 20 U.S.C. § 1415(b)(2), claiming that the District had denied Sarah access to a free appropriate public education ("FAPE"), as required by the IDEA, and seeking reimbursement for their unilateral placement of Sarah at HPDS. At issue in the IDEA administrative hearing was Sarah's education during the 2005-06 and 2006-07 school years -- her second and third grade years -- and the proposed IEP for the 2007-08 school year.AR 1845.

Prior to the due process hearing, Sarah's parents filed a number of motions with the IHO, including a motion for leave to observe the classroom in which the District proposed to place Sarah for her fourth grade year, a motion requesting that the IHO recuse himself based on what Plaintiffs perceived as evidence of his lack of impartiality, and a motion to move the due process hearing to a location other than Pritchett, all of which the IHO denied. AR 3.

At the outset of the due process hearing, the IHO summarized the issues for consideration at the hearing as follows:

(1) whether the school district failed to provide Sarah with a reading program that enabled her to make meaningful progress per 20 U.S.C. § 1414(d), 34 C.F.R. § 300.320;

(2) whether the school district failed to provide Sarah with an appropriate IEP per 20 U.S.C. § 1414(d), 34 C.F.R. § 300.320, 34 C.F.R. § 300.324, I.A.C. 226.230;

(3) whether the school district failed to provide Sarah with an appropriate placement pursuant to 20 U.S.C. § 1412(a)(5), 34 C.F.R. § 300.115;

(4) whether the school district failed to address all of Sarah's educational needs, which consists of language arts, math, executive functioning, and social/emotional needs, in addition to reading, pursuant to 20 U.S.C. § 1414(d), 34 C.F.R. § 300.320; and

(5) whether the school district failed to adequately consider private evaluation tendered by Sarah's parents pursuant to 34 C.F.R. § 300.324.

AR at 1759-1760; see also AR 4. Following a three-day hearing, the IHO decided all of the issues in favor of the District, and denied Plaintiffs' request for reimbursement. AR 12-15.

Plaintiffs filed a complaint in this case on December 13, 2007, appealing the IHO's decision and order.*fn3 On March 20, 2008, Plaintiffs filed a Motion to Supplement the Administrative Record [28], which the District opposed. On August 12, 2008, the Court granted Plaintiffs leave only to supplement the administrative record [36] with respect to (1) FACTS documentation, (2) a PowerPoint presentation related to "inclusion" prepared by the District and published on its website, and (3) a December 2007 occupational therapy evaluation and a January 2008 progress report.*fn4 On January 6, 2009, Plaintiffs' filed a motion for summary judgment. The District filed its cross motion for summary judgment on January 27, 2009.

III. Standard of Judicial Review

The traditional summary judgment standard set forth in Federal Rule of Civil Procedure 56 does not apply to cases arising under the IDEA. Evanston Cmty. Consol. Sch. Dist. No. 65 v. Michael M., 356 F.3d 798, 802 (7th Cir. 2004). The IDEA provides that a court reviewing the outcome of a due process hearing "(i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines appropriate." 20 U.S.C. § 1415(i)(2)(C). Therefore, despite being faced with cross motions for summary judgment, this Court's decision must be based on the preponderance of the evidence, and not on whether there are any genuine issues of material fact. Todd v. Duneland School Corp., 299 F.3d 899, 904 (7th Cir. 2002).

In IDEA cases, district courts are required to "give 'due weight' to the results of the administrative decisions and should not substitute 'their own notions of sound educational policy for those of the school authorities which they review.'" Bd. of Educ. of Murphysboro Community Unit Sch. Dist. No. 186 v. Illinois State Bd. of Educ., 41 F.3d 1162, 1166 (7th Cir. 1994) (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 206 (1982)). This measure of deference to the final administrative decision recognizes that "courts do not have special expertise in the area of educational policy," while hearing officers do. Id. at 1166-67. What constitutes "due weight" varies depending on the amount of new evidence considered by the district court. Alex R. ex rel. Beth R. v. Forrestville Valley Cmty. Unit Sch. Dist. No. 221, 375 F.3d 603, 612 (7th Cir. 2004).

Where the district court does not consider any additional evidence, "the fact that [it] disagrees with the [hearing] officer is not enough to justify setting aside the latter's order; [the court] must be strongly convinced that the order is erroneous." Dale M. ex rel. Alice M. v. Board of Educ. of Bradley-Bourbonnais High School Dist. No. 307, 237 F.3d 813, 815 (7th Cir. 2001). If the court does consider additional evidence, "[t]he more that [it] relies on new evidence, * * * the less it should defer to the administrative decision," but under no circumstances should the district court "go so far as to conduct a trial de novo." Alex R., 375 F.3d at 612. Here, although the Court has allowed Plaintiffs to supplement the record with fouradditional documents, their use and import are not extensive. Therefore, the Court generally gives considerable deference to the administrative decision.*fn5

The Seventh Circuit has explained that while district courts are require to give "due weight" to the decisions of the hearing officers, they must nevertheless "independently evaluate * * * the testimony of witnesses [and] the evidence." Heather S. v. State of Wis., 125 F.3d 1045, 1053 (7th Cir. 1997). Therefore, "in its independent evaluation of the evidence," this Court will "give due deference to the results of the administrative proceedings." Beth B. v. Van Clay, 282 F.3d 493 (7th Cir. 2002). This Court reviews the IHO's decisions of law de novo. Alex R., 375 F.3d at 611.

As the party challenging the IHO's decision, the Plaintiffs bear the burden of proving their claims by a preponderance of the evidence. See Patricia P. v. Bd. of Educ., 203 F.3d 462, 466-67 (7th Cir. 2000).*fn6

IV. The IDEA

The IDEA "requires States receiving federal funding to make a 'free appropriate public education' (FAPE) available to all children with disabilities residing in the State." Forest Grove School District v. T.A., 129 S.Ct. 2484, 2492 (2009) (citing §1412(a)(1)(A)). "A free appropriate public education is one 'specially designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child 'to benefit' from the instruction.'" Murphysboro, 41 F.3d at 1166 (quoting Rowley, 458 U.S. at 188-89). The IDEA aims to achieve the goal of making a FAPE available to all children with disabilities by requiring that States accepting federal funds for the education of disabled children adhere to two statutory obligations, Alex R., 375 F.3d at 611, one procedural and one substantive, Ross, 486 F.3d at 273-74. To comply with the IDEA's procedural component, a school district must follow the "guaranteed procedural safeguards" set forth in the Act. 20 U.S.C. § 1415(a). To comply with the statute's substantive component, a school district must "develop an [individualized educational program ("IEP")] through those procedures that is reasonably calculated to enable the child to receive educational benefits." Murphysboro, 41 F.3d at 1166.

Therefore, courts engage in a two-part inquiry to determine whether a school district has complied with the IDEA. Rowley, 458 U.S. at 206. First, a court considers whether the district has complied with the procedures set forth in the statute. Id. A district's failure to comply with the procedural requirements does "'not automatically require a finding of a denial of a [FAPE].'" Ross, 486 F.3d at 276. Procedural violations can be held to deny a student a FAPE only if they "(I) impeded the child's right to a free appropriate public education; (II) significantly impeded Plaintiffs' opportunity to participate in the decisionmaking process regarding the provision of a free appropriate public education to Plaintiffs' child; or (III) caused a deprivation of educational benefits." 20 U.S.C. § 1415(f)(3)(E)(ii). Second, a court asks whether the IEP is reasonably calculated to enable the child to receive educational benefits.*fn7 Rowley, 458 U.S. at 207. An IEP is reasonably calculated to confer educational benefit when it is "'likely to produce progress, not regression or trivial educational advancement.'" Alex R., 375 F.3d at 615 (citation omitted). The Seventh Circuit has stated that the "requisite degree of reasonable, likely progress varies, depending on the student's abilities." Id. ("while one might demand only minimal results in the case of the most severely handicapped children, such results would be insufficient in the case of other children"). "Objective factors, such as regular advancement from grade to grade, and achievement of passing grades, usually show satisfactory progress." Id.

Once a school district has satisfied the procedural and substantive requirements of the IDEA, "the courts cannot require more; the purpose of the IDEA is to 'open the door of public education' to handicapped children, not to educate a handicapped child to her highest potential." Murphysboro, 41 F.3d at 1166 (citation omitted).

V. Analysis

A. Procedural Arguments

A number of Plaintiffs' claims relate to the first Rowley inquiry: whether the State has complied with the procedures set forth in the IDEA.*fn8 Plaintiffs have alleged the following procedural violations: (1) Sarah's IEPs lacked measurable goals; (2) the District denied Sarah's parents meaningful participation in the IEP process; (3) the IHO deprived Sarah's parents equal access to evidence by denying their motion to observe the District's proposed classroom; (4) the IHO failed to hold the administrative hearing in a neutral location; (5) the IHO engaged in improper ex parte communication with the District's attorney; and (6) the District violated the IDEA by only offering Sarah placement at Pritchett, and thereby failing to offer her a continuum of placements.

1. Lack of Measurable Goals*fn9

Plaintiffs first contend that the goals set forth in Sarah's IEPs were not measurable, as required by the IDEA and Illinois' special education regulations. 20 U.S.C. §1414(d)(1)(A)(i)(II) (IEP must contain "a statement of measurable annual goals, including academic and functional goals"); 23 Il. Adm. Code 226.230(a)(1).*fn10 The IEPs at issue each set forth broad annual goals for improvement, and listed a number of short term objectives under each broad goal. See AR 1259 (5/6/05 IEP); AR 1279 (4/20/06 IEP); AR 1383 (5/3/07 IEP). For example, the IEP dated 4/20/06 includes the following goal: "Sarah will improve reading skills and read with understanding from her current level by completing the following objectives." AR 1279. Under that goal, the first short term objective is "when reading independently, Sarah will decode a variety of reading materials at her current instructional level, 8 of 10 times that she is assessed." Id.

After each short term objective appears Sarah's present level of performance for the particular task. For example, for the short term objective stated above, the 4/20/06 IEP states that Sarah "currently knows short a, short i, short o, has been learning short u, short e patterned word books, A and B levels." Id. Beneath each short term objective there is space for comments regarding the student's progress toward meeting that objective. Id. Sarah's progress toward mastering her objectives was evaluated each grading period. AR 1279 (stating on 6/5/06 that Sarah "currently has averaged 71% mastery" and "vowels have improved").

The Court concludes that the short term objectives in Sarah's IEPs are specific and capable of measurement, and therefore the IEPs sufficiently comply with the requirements of the ...


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