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M.L. v. Bourbonnais School District 53

March 15, 2010

M.L., A MINOR STUDENT, BY K.M.L., AS MOTHER AND NEXT FRIEND, AND EACH INDIVIDUALLY, PLAINTIFFS,
v.
BOURBONNAIS SCHOOL DISTRICT 53, DEFENDANT.



The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge

OPINION

This case is before the court for ruling on the Motions for Summary Judgment (#37, #40) filed by Defendant Bourbonnais School District 53 (District) and Plaintiffs, M.L. and K.M.L. After careful consideration of all of the arguments and documents presented by the parties, this court rules as follows: (1) the District's Motion for Summary Judgment (#37) is GRANTED in part and DENIED in part; (2) Plaintiffs' Motion for Summary Judgment (#40) is GRANTED in part and DENIED in part; (3) the decision of the hearing officer is affirmed in all respects; and (4) Plaintiffs are entitled to attorney fees as prevailing parties in the total amount of $27,486.

FACTS

M.L. was a student in the third grade during the 2007-2008 school year and attended a school in the District. M.L. is non-verbal, mentally impaired, and has been diagnosed with autism. M.L. receives special education services. During the 2007-2008 school year, M.L. was in a cross-categorical classroom, which consisted of six students, one special education teacher and three teaching assistants. M.L. resides with his mother, K.M.L., and his maternal grandmother. M.L.'s mother and father are both mentally impaired. Because of K.M.L.'s mental impairment, M.L.'s grandmother is responsible for his care and education, with some assistance from M.L.'s father and paternal grandparents. At the time of the hearing held in April 2008, M.L.'s grandmother worked nights two or three times a week. M.L. had a history of leaving his grandmother's home during the early morning hours. Because of this problem, M.L.'s grandmother arranged for the installation of an electronic monitoring system and, in addition, M.L. began staying with his father and paternal grandparents on the nights his grandmother works. On those occasions, M.L.'s father drives M.L. to his bus stop or to school. M.L.'s father lives about 14 miles away from M.L.'s residence, outside the District's boundaries. Because of this, the District sent a letter to K.M.L. regarding M.L.'s residence in the District.

On July 23, 2007, Plaintiffs' attorney sent a due process hearing request to the District. The request stated that there were two disputes: (1) the District's determination that M.L. was not a resident; and (2) the District's denial of full special transportation to M.L. On July 24, 2007, the District's attorney sent a letter to Plaintiffs' attorney stating that, based upon a telephone conversation between the attorneys regarding M.L.'s residency status, M.L. was a resident of the District. Accordingly, the District promptly determined that M.L. was a resident of the District so that M.L.'s residency was not an issue at the due process hearing eventually held in April 2008. Regarding the transportation issue, Plaintiffs' attorney requested "full special transportation services, including door-to-door service and a bus aide." Plaintiffs' attorney also requested reimbursement for past transportation provided by family members. Plaintiffs' attorney also requested M.L.'s records. Plaintiffs' attorney subsequently complained that all records had not been provided, but the hearing officer assigned to the case, Carolyn Smaron, determined that the District had provided all the documents in its possession.

On August 23, 2007, Plaintiffs' attorney filed a Motion for Interim Educational Evaluation. This Motion was eventually withdrawn based upon the District's agreement to expedite M.L.'s three-year re-evaluation. On October 5, 2007, Plaintiffs' counsel filed a Motion for an Interim Safety Order, requesting that the hearing officer order door-to-door transportation for M.L. prior to the hearing. The hearing officer denied this request on October 8, 2007. The expedited reevaluation of M.L. was completed on October 29, 2007. A meeting regarding M.L.'s Individualized Education Program (IEP) was scheduled that day. Dr. Marrea Winnega, the District's outside autism consultant, was unable to attend the meeting. Plaintiffs' attorney objected, and the IEP meeting was rescheduled for December 14, 2007. At the December 14, 2007, meeting, each of the District's evaluators (the school psychologist, speech pathologist, occupational therapist, and social worker) provided oral and written reports of the evaluations, which included recommendations regarding M.L.'s educational program and related services. Dr. Winnega also provided a written and oral report and made recommendations regarding M.L.'s educational program. A written IEP was completed on that date.

On December 18, 2007, Plaintiffs' attorney filed an Amended Complaint for due process, reasserting the transportation claim and including claims that the evaluations of M.L. were insufficient, the IEPs were not reasonably calculated to provide educational benefit to M.L., and the parent was denied the opportunity to participate in the IEP process. On January 16, 2008, Plaintiffs' counsel filed a Renewed Motion for Interim Educational Evaluation. The hearing officer denied this request on the grounds that the sufficiency of the evaluation would be determined at the due process hearing. In February 2008, Plaintiffs' counsel requested an independent educational evaluation in a letter to the District's superintendent. The District denied this request in light of the hearing officer's prior order.

The due process hearing was held on April 8, 9, 10 and 16, 2008. The issues for ruling at the hearing were: (1) whether from July 23, 2005 to the present the District failed and refused to provide appropriate transportation for M.L.; (2) whether the District engaged in a pattern of intimidation, threats and coercion with the result that K.M.L. was effectively denied the ability to participate in the development of IEPs dated March 24, 2006, May 10, 2006, and May 10, 2007; (3) whether the IEPs developed on those dates were inappropriate in that the school district did not appropriately discuss M.L.'s progress on his goals, did not set appropriate goals and benchmarks, did not set the appropriate amount of related service and in general created a program which was incomplete and inadequate; and (4) whether the District did not complete a full and complete evaluation of M.L. in the fall of 2007 and, as a consequence, the IEP developed on December 14, 2007, is inappropriate and inadequate, specifically in the areas of assistive technology and handwriting.

At the hearing, Plaintiffs' attorney and the District's attorney presented documents and testimony of witnesses in support of their positions. This court notes that Plaintiffs' attorney presented absolutely no evidence to support the claim of "a pattern of intimidation, threats and coercion." This court additionally notes that its careful review of the transcript of the hearing reveals that Plaintiffs' counsel, on many occasions, asked argumentative questions and questions which had little or no relevance to the issues before the hearing officer. This court concludes that the hearing officer showed enormous patience and gave Plaintiffs' counsel great latitude in presenting Plaintiffs' case. In short, the hearing officer's fairness to both sides during the hearing was exemplary.

After both sides presented closing statements on May 19, 2008, the record was closed. The hearing officer issued a 19-page Decision and Order on May 24, 2008. The hearing officer summarized the procedural history and the testimony presented at the hearing. The hearing officer then addressed the issues raised in order. The hearing officer first found that M.L. requires door-to-door transportation. The hearing officer directed the District to provide M.L. with door-to-door transportation on the District's small bus and to assign an aide to accompany M.L. on the bus. The hearing officer stated:

The parties are in agreement that the current bus stop cannot be seen from the student's residence on Bethany Lane. Both the grandmother and the school district concur - this essentially non-verbal mentally impaired autistic student cannot be relied upon to safely navigate a path to and from his residence to the currently designated bus stop on Latham Road. The school district asserts that it is not safe for a school bus to back up and asserts that none of its current collection of school buses can enter and leave the student's subdivision unless that school bus backs up. However, no one from the school district has attempted such a maneuver with its smaller school bus and the grandmother of the student asserts that buses similar in size to the smaller school bus (FedEX, UPS) routinely enter and exit the subdivision, turning around in the parking area in front of her residence. It appears clear to this hearing officer that the school district has focused on the safe maneuvering of its school buses rather than the safe transportation of this special education student. It is clear that the student's safety requires door-to-door transportation.

There is ample evidence in the record that the student has run from his residence, presently wearing a wrist bracelet tied to a monitoring system within his home. Based on the foregoing, the school district's autism expert, Dr. Marrea Winnega, testified that she would never leave this student unattended. The evidence supports a finding that the student requires an aide who will escort the student on and off the bus, escorting him to the front door of his residence.

The record reflects that the student's mother is unable to make the student available for pick up or drop off on a timely basis. It is clear that the student's family have developed an alternative wherein the student is properly supervised at all times in the home setting -when the grandmother is home, the student sleeps at home; when the grandmother is at work, the student sleeps at the home of his father. This arrangement meets the needs of the student and recognizes the teamwork involved for this student to arrive at school on-time on a consistent basis.

The record reflects that until the student's grandmother arranged for the new sleeping arrangements, the student's education was severely compromised by the inability of the student's mother to understand the importance of on-time consistent attendance at school. It is apparent that the student's progress or lack thereof was affected by the mother's lack of support for school attendance. Even if the student had had door-to-door transportation, it seems obvious that the student's mother would not have made the student available for transport. Any loss of educational benefit while the mother was "in charge" of getting the student up and ready for the bus in the morning can be directly attributable to the student's mother. For that reason, it would be singularly inappropriate for this hearing officer to order the school district to reimburse the student's family for the costs associated with transporting the student prior to the current alternative arrangement established by the student's grandmother.

The hearing officer next found that there was "absolutely no evidence presented which would cause this hearing officer to conclude that the mother or any family member has been threatened, coerced or denied the right to participate in any IEP meetings."

The hearing officer also found that the IEPs prepared on March 24, 2006, May 10, 2006, and May 10, 2007, were appropriate. The hearing officer stated:

Other than statements by the student's grandmother that the student was capable of more, there was no evidence introduced which contradicted the testimony of the classroom teachers that the student made educational progress in 1st, 2nd and 3rd grade. There was no evidence introduced that the amount of related services was inadequate. The evidence and testimony support the conclusion that the goals for the 1st, 2nd, and 3rd grade were calculated to meet and did in fact meet the student's need at his present level of functioning. Even the grandmother conceded that the student had made really great progress in 1st and 2nd grade.

In addition, the hearing officer found the October 2007 evaluation and the current IEP prepared on December 14, 2007, to be appropriate. During her summary of the evidence presented, the hearing officer noted that Tamara Deschand, an occupational therapist, had testified that "a handwriting evaluation is designed to test if a child knows how to form letters, if they had appropriate sizing of letters, spacing in between letters" and words. The hearing officer further noted that Deschand testified that "she did not complete a handwriting evaluation of the student because of the standardized nature of the assessment - the student is not able to copy letters from dictation at this point and would be unable to follow directions for the standardized evaluation" so that "no relevant data would be obtained." The hearing officer stated:

The parent seems to be focused on the inability to definitively determine the student's IQ, the inability to definitively determine his academic status and the inability to definitively determine the student's status by the speech pathologist, occupational therapist and social worker. The parent seems particularly focused on a formal assistive technology assessment and handwriting analysis.

The mother and grandmother, with legal counsel and his legal assistant, participated in the domain meeting on October 3, 2007. Each domain area was reviewed and all were found relevant. In fact, a 9th domain was added - autism. There was no insistence at that domain meeting that assistive technology or handwriting should be investigated. At the IEP meeting on December 14, 2007, no further evaluations were recommended - the participants clearly concluded that there was enough information upon which they could conclude that the student required services and thereafter develop goals and objectives for the student.

The testimony of the school district's psychologist, speech pathologist, occupational therapist, social worker and autism expert was quite persuasive - the foregoing individuals explained the results of their assessments, explained the necessity for utilizing nonstandard administration of assessments, and explained that the student must be assessed based upon his current functioning level supported by data achieved in his classroom.

The testimony of the lone expert called by the parent - Dr. Zavodny - was singularly not helpful. She validated the testing completed by the psychologist (UNIT) and the testing completed by Dr. Winnega. She never observed the student, either at home or in the school setting, and had completed no evaluations of the student.

The parent asserts that the current IEP is deficient because it does not contain an explicit statement of teaching approach or methodology. In particular, they demand that the IEP developed on December 14, 2007 be amended to include a statement that the student be instructed with a "mix of structured teaching and ABA therapy." The parent introduced no authority ...


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