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C.R., Jr., A Minor, and C.R., Sr. and E.R., Individually and As v. Board of Education of the City of

March 15, 2011


The opinion of the court was delivered by: Judge Edmond E. Chang


C.R., who is a minor,*fn1 and his parents filed this suit against Defendant Board of Education of the City of Chicago, District 299, pursuant to 20 U.S.C. § 1415(i)(3), seeking attorneys' fees and costs incurred by Plaintiffs as a result of a due-process hearing held under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq. The parties have filed cross-motions for summary judgment. R. 13, 17. As detailed below, Plaintiffs did alter the legal relationship between C.R. and the District, thus entitling them to some attorneys' fees and costs. But the aspects of the administrative order that were actually legally binding were not more favorable than the District's pre-hearing settlement offer, and the IDEA limits recoverable fees and costs in those situations. The cross-motions for summary judgment are thus granted in part and denied in part consistent with this opinion, and judgment will be entered for Plaintiffs in the amount of $8,069.25.



Although Plaintiffs seek to recover attorneys' fees arising from a June 2009 due-process hearing, that hearing was actually the second concerning C.R. in 2009. The first hearing (which was requested by the District) took place on March 9, 2009, and an explanation of the lead-up to the first hearing is necessary to understand the Court's decision. As detailed below, the overlap and quick turn-around time between the March 2009 hearing and the June 2009 hearing -- overlap in the sense that C.R. requested the second hearing even before the completion of various evaluations of C.R. conducted as a result of the first hearing -- will bear on the parties' cross-motions for summary judgment.

In 2009, C.R. was a fifteen-year-old who had just completed eighth grade at a Chicago middle school in District 299. R. 18, Pls.' Statement of Material Facts (Pls.' SMF) ¶ 1.*fn2 C.R. has been eligible for special education services since November 2004, based on his learning disability and speech language impairment. Id. ¶ 8. The District conducted a triennial evaluation of C.R. during the 2007-08 school year and C.R. underwent cognitive and academic testing. Id. ¶ 11. The District did not provide formal testing by a speech pathologist or an occupational therapist. Id. In April 2008, the District convened a meeting to consider the triennial evaluation reports and to prepare an individualized education plan (IEP) for C.R. Id. ¶ 12.

In November 2008, Plaintiffs, through their attorney, requested independent educational evaluations of C.R. in the areas of academic skills, cognitive skills, communication skills, occupational therapy, and assistive technology. Id. ¶ 15. Plaintiffs also requested a psychiatric assessment of C.R.'s emotional and behavioral deficits that impacted his learning experience. Id. In response, the District filed a request for an impartial due process hearing, requesting that an independent hearing officer from the Illinois State Board of Education sustain the adequacy of the District's evaluations. Id. ¶ 16. The first due process hearing was held in March 2009 ("C.R. I") and resulted in the following: (1) the District agreed to fund psychiatric, assistive technology, and speech and language independent educational evaluations; (2) the Hearing Officer ordered the District to fund an occupational therapy evaluation; and

(3) the Hearing Officer deemed the District's psychological evaluation to be adequate. Id. ¶¶ 17, 20. C.R. proceeded to obtain the agreed-upon and ordered evaluations at public expense and forwarded them to the District's attention. Id. ¶¶ 21-23.

Specifically, the speech and language evaluation was conducted on March 20 and forwarded to the District on May 8, 2009. R. 18-2 (Hearing Op.) at 3; R. 26, Pls.' Statement of Additional Material Facts (Pls.' SAMF) ¶ 2. The assistive technology evaluation took place on March 30 and was forwarded to the District on April 6, 2009. Hearing Op. at 3; Pls.' SAMF ¶ 1. C.R.'s psychiatric evaluation was conducted on April 10 and forwarded to the District on May 21, 2009. Hearing Op. at 3; Pls.' SAMF ¶ 3.

The psychological evaluation took place over the course of three days -- April 21, 29, and May 14 -- and was forwarded to the District on May 21, 2009. Hearing Op. at 3; Pls.' SAMF ¶ 3. Finally, C.R.'s occupational therapy evaluation was conducted on May 7 and forwarded to the District on May 8, 2009. Hearing Op. at 3; Pls.' SAMF ¶2.

But earlier -- on March 16, 2009 before any of those evaluations took place, Plaintiffs filed a request for an impartial due process hearing, alleging that the District had not provided C.R. with a free and appropriate education (FAPE) from September 2004 to the present. Pls.' SMF at ¶ 24. In their hearing request, Plaintiffs complained that C.R. was denied a FAPE due to the District's failure to conduct adequate assessments of all areas of potential disabilities, provide essential related services, identify and utilize effective teaching methodologies, offer adequately designed instruction, educate C.R. with native language support and English Language Learner Services, provide assistive technology equipment, and develop an adequate and effective functional behavior analysis. Id. ¶ 25. Plaintiffs' due process complaint also specified several ways in which C.R.'s individualized education plans were allegedly inadequate and inaccurate. Id. Finally, C.R.'s parents claimed that, since 2004, the District improperly limited their ability to participate in C.R.'s educational planning by failing to provide IEPs and other reports and evaluations in their native Spanish language. Id. As a result of these alleged violations, Plaintiffs requested that C.R. be placed in a private therapeutic day school at public expense. Id. ¶ 26. They also sought specific relief in the form of related and compensatory services for C.R., and in the form of an order that the District convene an IEP meeting to consider both the requested relief and the evaluation results. Id. Finally, Plaintiffs asked the Hearing Officer to order that the District provide all school records to C.R.'s parents, including all email and other correspondence that identifies C.R., and to order any "other relief" to be determined after the due process hearing. Id.

In response, as summarized by the Hearing Officer's eventual written opinion, the District argued that "it has provided the student with FAPE [a free and appropriate education], utilizing the appropriate teaching methodologies and providing for the appropriate level of related services to the student to make marked progress," including "tremendous" social and academic progress in the past three years. R. 18, Exh. A-5. The District argued that C.R.'s parents were at all times provided with a translator at individualized education planning meetings, as well as at meetings with school personnel. Id. The District also objected to the opening of the second due-process hearing because the first one had only just recently concluded. Id. Most importantly, the District argued "that it has provided the student with FAPE in the least restrictive environment, and request[ed] that the Hearing Officer find no denial of FAPE and deny all relief being requested by the Parents." Id.

C.R.'s second administrative due process hearing was scheduled for June 2, 2009. Id. at 1. As detailed more below, on May 22, 2009, the District made a settlement offer, which incorporated several of Plaintiffs' demands. Def.'s Statement of Material Facts (Def.'s SMF) ¶ 6; see R. 18-4. Plaintiffs did not respond to this offer. Def.'s SMF ¶7.

The second due process hearing began on June 2, 2009 and concluded on June 5. Hearing Op. at 1. Both of C.R.'s parents testified at the hearing through the services of a Spanish speaking interpreter. Id. at 12. The Hearing Officer also heard testimony from CPS teachers and staff, independent evaluators, and Kathy Fouks, the Director of Acacia, the private day therapeutic school where C.R.'s parents wanted to place him. Id. Before the hearing, the parties submitted briefs on the issue of whether evidence of the District's failure to provide written information and notices in Spanish to C.R.'s parents should be allowed beyond the two-year statute of limitations period. Id. at 14. The Hearing Officer deferred his ruling on this issue until after the hearing. Id.

On July 27, 2009, the Hearing Officer issued a decision. Id. at 1. The Officer concluded that the District failed to provide C.R. with a free and appropriate education due to an insufficient amount of "related" services. Id. In the decision, the Hearing Officer evaluated the recommendations provided by each of the independent evaluators in the areas of psychiatry, psychology, bilingual speech-language pathology, occupational therapy, and assistive technology. Id. at 6-10. The Hearing Officer found that C.R.'s "academic performance deteriorated for what can only be explained as the District not making the necessary adjustments needed in meeting the student's academic needs." Id. at 16.

The Hearing Officer also admonished the District for its failure to convene a timely IEP meeting after it received C.R.'s evaluations. Id. at 16. The District claimed that they had to stay the IEP meeting pending the resolution of C.R. I. Id. at 6. The Hearing Officer disagreed and found that the District should have taken immediate action to set the IEP process in motion once the evaluations were completed and tendered to the District. Id. at 16. He found that the District's decision to wait was not in C.R.'s best interest. Id.

Upon concluding his discussion of the issues, the Hearing Officer ordered the District to convene an IEP meeting to consider its evaluations and assessments, as well as the evaluations conducted on behalf of C.R., "as soon as reasonably practicable, preferably within the first week when District staff are required to report to school, but no later than the first week of the beginning of the 2009-10 school year for student attendance purposes and no later than Friday, September 11, 2009." Pls.' SMF at ΒΆ 28. The Hearing Officer instructed the District to give "careful consideration" to C.R.'s "total needs as outlined in the IEE assessments and recommendations, especially the student's needs identified in the area of English Language Learner Services, Occupational Therapy, Social Work, and Assistive Technology and the amount of time recommended for each service to be provided on a daily/weekly/monthly basis to formulate an 'appropriate' educational placement for the student transitioning from elementary to high school." Id. "The respective time allotments for the related services recommended by the IEE's appear reasonable and necessary." Id. The Hearing Officer also directed the IEP team to give "careful consideration" to C.R.'s educational placement, focusing on his success in a small class and whether placement in a private day therapeutic school would be necessary to meet his specific identified needs. Id. Since C.R. had suffered academic deterioration, the Hearing Officer instructed the IEP team to consider compensating him with specific additional services, including tutoring, speech therapy, and a laptop ...

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