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Zachary M v. Board of Education of Evanston Township High

November 8, 2011


The opinion of the court was delivered by: Judge James B. Zagel


Plaintiff Zachary M.*fn1 sues the Board of Evanston Township High School District 202 for alleged violations of the Rehabilitation Act and the Americans with Disabilities Act. He challenges the same conduct under 42 U.S.C. § 1983. He also seeks review of a hearing officer's appellate decision regarding his request for accommodations under the common law writ of certiorari. Defendants have moved for summary judgment. For the following reasons, the motion is granted as to all claims.


Local Rule 56.1 governs parties' statement of facts on a motion for summary judgment. Local Rule 56.1 assists the court by organizing the evidence, identifying undisputed facts, and demonstrating precisely how each side proposes to prove a disputed fact with admissible evidence. Bordelon v. Chicago Sch. Reform Bd. of Trs., 233 F.3d 524, 527 (7th Cir. 2000). The movant is required to provide a statement of undisputed material facts, with appropriate record citations, that justify summary judgment. Local Rule 56.1(a)(3). Citing to the record, the nonmoving party must admit or deny each of the movant's statements, and may also submit a statement of additional facts that require denial of summary judgment. Local Rule 56.1(b)(3).

A district court is entitled to expect strict compliance with Local Rule 56.1. See, e.g., Ammons v. Aramark Uniform Servs., Inc., 368 F.3d 809, 817 (7th Cir. 2004); Bordelon, 233 F.3d at 527. In this case, Plaintiff and Plaintiff's counsel failed to cite to the record for a significant number of their disputes with Defendant's statement of facts, as is required by Local Rule

56.1(b)(3)(B). The problem is less pronounced, though still evident, in Plaintiff's supplemental statement of facts. See L.R. 56.1(b)(3)(C). It is within the court's discretion to decline to consider factual statements that fail to comply with Local Rule 56.1. See Cichon v. Exelon Generation Co., 401 F.3d 803, 809-10 (7th Cir. 2005) (court may penalize non-compliance with Local Rule 56.1 by ignoring proposed facts). While I am inclined to forgive minor transgressions in citing to the rules, in this case Plaintiff has failed to cite to the record in significant portions of his Local Rule 56.1 statements. A court is not obliged to scour the record for factual disputes, especially in cases, such as this one, that are fact-intensive by nature. See Cracco v. Vitran Express, Inc., 559 F.3d 625, 632 (7th Cir. 2009) .*fn2


Plaintiff Zachary M. ("Plaintiff" or "Zach") was a student at Evanston Township High School from the beginning of his freshman year, in fall 2006, through his graduation on June 10, 2010. The remaining Defendants are the Board of Evanston Township High School District 202 ("ETHS") and Dr. Bonita Simon, the hearing officer who conducted a § 504 appeal hearing. Plaintiff's Impairment

Zach was diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD") during the summer of 2007, though ETHS was not given a doctor's official diagnosis of the condition until on or about February 14, 2008. One of Plaintiff's junior and senior year teacher's described his concentration and attention in class as "poor."

Initial Request for a § 504 Plan

Michael and Christine M. requested that ETHS place Zach on a plan pursuant to § 504 to accommodate his ADHD in October, 2007. While ETHS's Pupil Personnel Services ("PPS") team reviewed Zach's parents' request that Zach be placed on a §504 Plan*fn3 , Zach's teachers and administrators offered Zach the following informal accommodations to Zach:

- On October 31, 2007, Karyn Reiber, Zach's counselor and a member of the PPS team, sent an e-mail to Letitia Hinkle, one of Zach's teachers, at Zach's mother's request indicating that Zach is a shy young man and gets nervous speaking in front of others.

- In November 2007, Joel Weiner, Zach's honors chemistry teacher, talked to Zach about his lack of progress and offered him additional academic support in the morning before school. Zach never attended such morning support sessions.

- Kari Jaeckel, Zach's Spanish teacher, offered to enroll Zach in "SOS." SOS is the "System of Support" program, which is a system of academic support offered to all students, and which includes AM support, departmental study centers, a Homework Center, media centers and one-on-one tutoring. AM support is assigned by teachers. This support period, held at the beginning of the school day, provides time outside of class for those students most in need of personalized time with their teachers to work directly on a particular issue or skill.

- Paulo Rocha, another one of Zach's teachers, proposed to Christine M. that they "work together to bring [Zach's] motivation back before it is too late."

A large portion of the evidence considered by the PPS team concerned Zach's academic performance. The backdrop to that performance is as follows: at ETHS, students receive semester marks, or grades (A, A-, B, B, B-, C, C, C-, D, D, F). The grades A and A- indicate "superior" work, the grades B, B, and B- indicate"excellent" work, the grades C, C, and C-indicate "average" work, the grades D and D indicate "below average work," the grade F indicates "failed," the grade I indicates "incomplete," and the grade IN indicates "incomplete in community service." The following grade points correspond to the letter grades used at ETHS: A, 4.0; A-, 3.7; B, 3.3; B, 3.0; B-, 2.7; C, 2.3; C, 2.0; C-, 1.7; D, 1.3; D, 1.0; F, 0.0; I, 0.0.

At ETHS, grade point average ("GPA") is calculated by averaging the grade points of semester marks in all ETHS courses carrying one or more credits. Grades received in honors courses are weighted by adding .5 points to the grade for the course for the semester. Grades received in advanced placement ("AP") courses are weighted by adding 1.0 points to the grade for the course for the semester.

Zach's transcript as of November 2, 2007, which provide grades that were relied upon by the PPS team indicate the following:

- During his freshman year (2006-2007 school year), Zach took almost all honors courses, which are among the most challenging of ETHS courses. Zach took the following courses: English (honors), Spanish (honors), history (honors), trigonometry (honors), string orchestra (honors), and biology (honors). Zach took only one non-honors course during his Freshman year.

- During the first semester of his freshman year, Zach received the following grades: A, A-, A-, A-, B, B, B-, and C. During the second semester of his freshman year, Zach had received the following grades: A, A-, A-, A-, B, B. Zach's cumulative gradepoint average ("GPA") for his freshman year was a 3.8250 out of 4.0.

- During his sophomore year (2007-2008 school year), Zach took almost all honors and advanced placement ("AP") courses, including: AB Calculus (AP); BC Calculus (AP); English (honors),Spanish (honors), history (honors), Latin American Studies (honors), chemistry/physics (honors), and symphony orchestra (honors). Zach took only one non-honors or -AP course during his sophomore year.

- At the end of the first quarter of Zach's sophomore year, Zach had received the following grades: A, A, B, B, B, B, and C in all honors and AP classes, indicating above average performance in reading, science, and math. At the time of the Section 504 request for Zach, Zach had never received a below-average grade at ETHS.

On November 2, 2007, the PPS team met and determined that Zach was not eligible for a § 504 plan for the following reasons: (1) Zach's psychological report did not clearly state what his disability was; and (2) even if Zach did have ADHD, it did not substantially limit the life activity of learning because Zach was performing well above average in school. In a letter to Zach's parents on November 9, 2007, the PPS team explained that Zach was "doing great in his classes," with grades in the "average to above average range" in "all honors level courses." The team explained that "[a]lthough the psychological testing data indicated some learning weaknesses, the PPS Team does not find any evidence that Zach[ary]'s academic performance and learning are substantially limited. [His] scores are commensurate with his above average abilities in the areas of Reading, Science, English, and Math (as indicated by academic records)." The PPS team explained that its decision was based on Zach's most recent classroom profile information, transcripts, psychological evaluation provided by the parents, and Explore scores.

Accommodations In Lieu of Formal § 504 Plan

Even though the PPS found Zach was not disabled under § 504 or eligible for a § 504 Plan, Zach was provided accommodations, including the following:

- On November 2, 2007, Karyn Reiber sent an email to Zach's teachers notifying them that Zach has some anxiety approaching adults with questions and/or concerns and that he is shy. The stated purpose for informing Zach's teachers was so they "may be a little more proactive with Zach when something is needed of him or you may believe he may need help in your course."

- On November 9, 2007, Aracely Canchola, a member of Zach's PPS team, sent a letter to Zach's parents memorializing an offer to meet with Zach and Breeda McGrath, School Psychologist, to assess Zach's level of anxiety, work on coping strategies, and discuss organizational strategies.

- On February 27, 2008, Ms. Canchola sent a memo to Zach's teachers informing them that Zach should be granted the following informal accommodations: (1) opportunities to ask for clarification and if needed, have directions repeated; (2) extended time on in-class test and exams; (3) copies of syllabi or assignment sheets with due dates; (4) contact to Mrs. M. at ...

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