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

January 14, 2010

NICOLE M. AND VIRGINIA M., INDIVIDUALLY AND AS PARENT AND NEXT FRIEND OF NICOLE M., PLAINTIFFS,
v.
BOARD OF EDUCATION OF THE CITY OF CHICAGO, DISTRICT 299, DEFENDANT.



The opinion of the court was delivered by: Blanche M. Manning United States District Court Judge

MEMORANDUM AND ORDER

This case turns on a dispute about attorneys' fees incurred in connection with a special education due process hearing under the Individuals with Disabilities Education Act ("IDEA"). Defendant Board of Education of the City of Chicago, District 299, contends that plaintiff Nicole M. and her mother, Virginia M., were: (1) not prevailing parties as to all claims, so their fees should be reduced; (2) their requested fees are excessive; and (3) the plaintiffs are not entitled to any fees incurred after the Board provided an offer of judgment because the plaintiffs did not subsequently obtain more favorable relief. The plaintiffs' motion for summary judgment is before the court. For the following reasons, the plaintiffs' motion is granted in its entirety.

Background

The following facts are undisputed unless otherwise noted.

Parties

The plaintiffs are Nicole M., an 18 year-old woman who is in her senior year of high school, and her mother and next friend, Virginia M. Nicole's school district of residence is Chicago Public School District No. 299. Following a three day due process hearing, an Independent Hearing Officer issued an order which determined that CPS had denied Nicole a free and appropriate public education for more than two years, and ordered that CPS provide a private therapeutic day school placement and additional services and supports through the 2009-10 school year.

Defendant Board of Education of the City of Chicago, District 299, is the Local Education Agency as defined in 20 U.S.C. § 1402(15).

Hancock College Preparatory High School

During the 2008-2009 school year, Nicole was an 18 year-old senior at Hancock College Preparatory High School, part of the Chicago Public Schools. In November of 2001, when she was in the 5th grade, she was found to be eligible for special education services based on the category of learning disability, with weaknesses noted in word decoding, spelling and comprehension.*fn1

In October of 2006, Nicole enrolled in Hancock High School. CPS staff were aware that Nicole had previously been enrolled with an Individual Education Plan ("IEP"), and that a special evaluation was pending. Nevertheless, despite numerous complaints to Hancock staff from Nicole and her mother, CPS staff did not prepare an IEP for Nicole until December of 2007. During Nicole's junior year, she was absent 65.5 days.

In the fall of 2008, Plaintiff Virginia M. obtained an independent educational evaluation for Nicole by a clinical psychologist. The Board challenges the psychologist's findings but admits that the hearing officer found that Nicole's intelligence scores were in the average range, but her academic achievement scores showed little or no gains from the previous year. On September 15, 2008, Virginia submitted a pro-se request for a due process hearing. The following month, Nicole and Virginia retained counsel, who prepared an amended due process complaint seeking relief under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1401, et seq. The amended due process complaint raised the following issues:

1. Did the District create and implement an Individual Education Plan ("IEP") that provided a free appropriate public education ("FAPE") for Nicole during the 2006-2007, 2007-2008 and 2008-2009 school years so she could make adequate educational progress?

2. Were appropriate, adequate and timely assessments conducted to address Nicole's needs?

3. Were appropriate, adequate and timely related services provided to Nicole?

4. Was an adequate, appropriate and timely transition plan developed and implemented?

5. Should the district be ordered to pay for independent evaluations to determine if Nicole has potential unassessed disabilities?

6. Should the District pay to place Nicole at Acacia Academy, a private therapeutic day school, for the remainder of the 2008-2009 school year and for an additional compensatory fifth school year of high school without regard to how many credits the District has already awarded toward graduation?

7. Should the District provide additional tutoring and social work services during Nicole's time at Acacia Academy and then for an additional year (2010-2011) as compensatory services?

Settlement Offers Prior to the Due Process Hearing

Prior to the due process hearing, counsel for the District offered the following terms for settlement: (1) the District offered to revise Nicole's IEP by: (a) increasing the amount of special education instruction to between 600 and 800 minutes per week; and (b) adding social work or psychological services of 60 minutes per week; (2) the District offered to fund an independent educational evaluation to assess Nicole's needs; and (3) the District offered to conduct testing in the areas of auditory processing and attention and organizational needs. The District also offered to provide one of the following two options as compensatory services, and to implement the chosen option as part of the IEP Revision: (1) to attempt to obtain placement at Acacia School, a separate day school, through June 2010, and if Acacia is either unwilling or unable to accept Nicole, to identify a placement suitable for a student with learning disabilities; or (2) two hours tutoring per week after regular school hours by a certified special ...


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