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A.L., A Minor Student, By L.L., As Parent and Next of Friend, and Each Individually v. Chicago Public School District No. 299

November 18, 2011

A.L., A MINOR STUDENT, BY L.L., AS PARENT AND NEXT OF FRIEND, AND EACH INDIVIDUALLY, PLAINTIFFS,
v.
CHICAGO PUBLIC SCHOOL DISTRICT NO. 299, DEFENDANT.



The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge:

MEMORANDUM OPINION AND ORDER

On January 25, 2010, Plaintiffs A.L., a minor student, by L.L., as Parent and Next of Friend, and each individually (collectively, "Plaintiffs"), filed the present action against Defendant Chicago Public School District No. 299 (the "District"), and others, for deprivation of their federal and constitutional rights, see 42 U.S.C. § 1983, and violations of the Individuals with Disabilities in Education Act ("IDEA"), 20 U.S.C. §§ 1401 et seq. Plaintiffs also seek attorney's fees and costs pursuant to the IDEA, 20 U.S.C. § 1415(i)(3). Before the Court are the parties' cross-motions for summary judgment.

For the following reasons, the Court grants Defendant's motion, and denies Plaintiffs' motion, for summary judgment on Plaintiffs' § 1983 and IDEA claims.*fn1

BACKGROUND*fn2

This action arises out of Plaintiffs' attempt to enforce their right to a "free appropriate public education," or "FAPE," for A.L., a student with disabilities. (R. 56, Am. Compl. ¶ 21.) During the 2007-08 school year, A.L. was a freshman at Dunbar Academy High School in Chicago, Illinois. (R. 84, Def.'s Local Rule 56.1 Stmnt of Undisputed Material Facts ("Def.'s 56.1 Stmnt") ¶ 2.) Prior to that time, A.L. "had received special education services in a self-contained classroom pursuant to an Individualized Educational Plan ("IEP") that classified A.L. as having a "mild cognitive impairment.'" (Id. ¶ 5.)

At Dunbar Academy, an "IEP Team" initially placed A.L. in special educational classes for certain core curriculum courses. (R. 56, Am. Compl., Ex. A, 9/24/08 Dec. and Order of the Impartial Hearing Officer ("Hr'g Officer Dec.") at 5.) But following a triennial evaluation that occurred during her freshman year, the IEP Team "recommended that A.L.'s eligibility classification be changed from mild cognitive impairment to moderate cognitive impairment, and that her placement also be changed to a more restrictive self-contained class for moderately impaired students." (Def.'s 56.1 Stmnt ¶ 6.) A.L.'s Parent disagreed with these recommendations, and prepared a written dissent to the IEP Team recommendation. (Id. ¶ 7.)

On February 1, 2008, A.L.'s Parent formally requested an independent educational evaluation, or "IEE," of A.L., including a Neuropsychological Evaluation, a Speech and Language ("SL") Assessment, a Functional Vocational ("FV") Assessment, and an Assistive Technology ("AT") Evaluation. (Id. ¶¶ 7-8.) The District did not respond to the IEE requests "either by agreeing to fund the evaluations, or by filing a due process complaint." (R. 94, Pls.' Local Rule 56.1 Stmnt of Undisputed Material Facts ("Pls.' 56.1 Stmnt") ¶ 7.) The following week, on February 8, 2008, A.L.'s Parent filed a due process complaint against the District, seeking a finding that:

[1] the District did not comply with the stay-put requirement imposed for AL; [2] the District violated and continues to violate the procedural rights of AL and her parent by denying them participation in the formulation of FAPE; [3] the District denied and continues to deny AL a [FAPE] and her entitled educational opportunities including extended year services; [4] the District's IEPs were inappropriate and continue to be as to their lack of specially designed instruction responsive to the Student's unique needs & inappropriate as to their lack of related services required for the Student to benefit from her special education[.] (Hr'g Officer Dec. at 4-5.) Additionally, A.L.'s Parent sought an order that the District:

[1] provide AL with a FAPE as documented in an appropriate IEP that is reasonably calculated to confer an educational benefit as soon as allowed by law;

[2] provide Speech & Language and other appropriate related services for AL to address her speech and language, auditory processing deficits and other deficits so that AL will benefit from her education; [3] undertake the appropriate assistive technology for AL in order for AL to benefit from her education; [4] [pay] compensation for outside evaluations paid for by AL's family; [5] adopt an appropriate transition plan with services to meet the needs of AL in accordance with the functional vocational evaluations conducted; [6] provide an appropriate placement for AL and to provide transportation to and from the placement; [7] [provide] compensatory education to make AL whole for the period of deprivation of educational opportunity, and for the lack of specially designed instruction, at an appropriate educational facility selected by the Parent at times of their own choosing and convenience; [8] pay for reasonable transportation costs to and from these providers to obtain such compensatory education; and [9] provide monthly reports on implementation of the order for 12 months to the Parent, her counsel and [the Illinois State Board of Education ("ISBE")]. (Id.)

The parties participated in a resolution conference on April 11, 2008, resolving "some, but not all, of the issues in dispute." (Def.'s 56.1 Stmnt ¶ 11.) In addition to agreeing on placement, the District agreed to conduct an SL Assessment and an AT Evaluation for A.L. (Id.) Thereafter, on April 29, 2008, the Hearing Officer ordered the parties to convene an IEP meeting, and scheduled a pre-hearing conference. (Id. ¶ 12.)

On May 20, 2008, upon the Parent's motion, the Hearing Officer ordered an IEE and classroom observation (id. ¶ 13), and thereafter granted the Parent's request for a continuance "to allow the evaluations to be completed and to allow the parties an opportunity to consider the results." (Hr'g Officer Dec. at 2.) The parties met for an IEP meeting on December 11, 2008, but jointly requested an adjournment to allow additional IEEs. (Id.)

On January 19, 2009, the Parent filed another motion for an IEE, specifically an FV Assessment and an AT Evaluation. (Id.) At that time, the District represented that it was "ready and able" to complete both evaluations, and the Hearing Officer ordered the District to do so. (Id.) The District completed the AT Evaluation, but not the FV Assessment. In the interim, the Parent informed the Hearing Officer that they had "separately arranged an independent" vocational evaluation, which was "nearly complete." (Id.)

With most of the evaluations completed, the Hearing Officer conducted a four-day administrative hearing on July 21-23, 2009, and September 14, 2009. (Def.'s 56.1 Stmnt ¶ 17.)

The numerous witnesses who testified at the hearing included: L.L., the mother of A.L.; Ms. Mangrum, a teacher at Dunbar Academy; Ms. Chambers, A.L.'s case manager; Ms. Baker, Mr. Taylor, Mr. Purvis, and Ms. Rodriguez, all of whom were A.L.'s teachers; Ms. Janet Hack, a school psychologist who performed the psychological evaluation of A.L.; Dr. Michele Rosen, a neuropsychological expert retained by Plaintiffs; Mr. James Boyd, a vocational expert retained by Plaintiffs; Ms. Elizabeth Watson, a functional assessment expert retained by Plaintiffs; Ms. Holly Rouser, a speech and language pathologist for the District; Mr. Arnell Brady, a speech and language expert retained by Plaintiffs; Ms. Julie Monahan, the supervisor of the District's expert who performed the AT Evaluation; Mr. Don Dalton, an assistive technology expert retained by Plaintiffs; Ms. Linda Kramer, an occupational therapist retained by Plaintiffs; Ms. Barb Rezabek, an expert audiologist for the District; and Dr. Jeanne Ferre, an expert audiologist retained by Plaintiffs.

During the pendency of the hearing, the "parties agreed that A.L. should be placed at Southside Academy instead of Dunbar." (Def.'s 56.1 Stmnt ¶ 17.) On September 23, 2008, having found that the District's actions deprived A.L. of a free appropriate public education, the Hearing Officer entered a Final Order, which held, in relevant part, as follows:

1. The Student's educational placement shall remain Southside School for the remainder of the 2009-10 school year. Thereafter, she shall continue to attend Southside if the team agrees that Southside is an appropriate placement for AL.

2. AL shall be evaluated to more fully assess her occupational therapy needs. The evaluation shall not be limited to AL's classroom needs, but must assess AL's skills relevant to her vocational needs, as well. To ensure that the evaluation includes the appropriate focus, the Parent may obtain a private evaluation to be conducted at public expense. Since Linda Kramer has provided some initial assessment information and is familiar with AL, it is preferable that Ms. Kramer complete the OT evaluation if she is available.

3. Within three weeks of this order, the parties shall convene an IEP meeting to develop an IEP for AL that takes this decision and order into account. Specifically, the IEP must include the following: [a] Appropriate, measurable goals for AL that are based on input from team members, including the Parent; [b] Speech and language therapy for at least 60 minutes per week. IEP goals shall take Mr. Brady's findings and recommendations into account; [c] Reading instruction presented through a multisensory approach; [d] A meaningful transition plan that takes into account the findings and recommendations of Mr. Boyd and Ms. Watson. To ensure that an appropriate transition plan is developed for AL, the Parent may invite either Mr. Boyd or Ms. Watson to attend the IEP meeting. The District shall reimburse the Parent's consultant for his or her time; [e] To the extent that the occupational therapy evaluation can be completed in time, the IEP team shall take the evaluator's recommendations into account. Otherwise, the team shall promptly reconvene.

4. The District is required to pay for Mr. Brady's speech and language assessment, Mr. Boyd's and Ms. Watson's functional vocational evaluations, Dr. Rosen's neuropsychological evaluation (including her time spent observing AL in the classroom), and for Ms. Kramer's initial OT assessment. The District shall also pay for Ms. Kulczyk's time spent observing Dunbar's classroom for moderate cognitively impaired students.

5. The District shall reimburse Mr. Boyd, Ms. Watson and Dr. Rosen for their time spent testifying at the hearing, and for Dr. Rosen's participation at the December 11, 2008 IEP meeting.

6. Because creating and implementing an appropriate transition plan for AL is of paramount importance to her education and future success outside of school, the Parent may invite either Mr. Boyd or Ms. Watson to participate in a year-end review for AL. The District shall pay for the consultant's time.

7. As a compensatory service for CPS' failure to adequately assess and provide AL with speech and language therapy, AL shall receive private speech and language therapy at District expense. The therapy shall be provided for one hour per week, before or after school, or on weekends, for a period of one calendar year. The Parent may obtain the services of Mr. Brady or another speech and language therapist included on ISBE's lists of approved therapists. The District shall reimburse the Parent for reasonable transportation costs to and from the provider.

(Hr'g Officer Dec. at 24-25.)

On January 25, 2010, Plaintiffs filed the present action against the District, the ISBE, and ISBE Superintendent Chris Koch, in his official capacity. Plaintiffs' Amended Complaint, filed on October 5, 2010, alleges various violations of 42 U.S.C. § 1983, and the IDEA, 20 U.S.C. § 1401, et seq., as well as requests attorney's fees and costs pursuant to the IDEA, 20 U.S.C. § 1415(i)(3)(B). (Am. Compl. ¶¶ 146-86.)Following Plaintiffs' voluntary dismissal of the ISBE Defendants, the District is the only remaining Defendant. (See R. 90.) The parties have filed cross-motions for summary judgment, which are fully briefed. The Court has jurisdiction pursuant to 20 U.S.C. § 1415(e)(2) and 28 U.S.C. § 1331.

ANALYSIS

Before reaching the merits of the parties' cross-motions, the Court notes that its review is complicated by Plaintiffs' failure to clearly define the nature of this civil action. As the District observes, "[t]he complaint is difficult to decipher, in terms of what is an alleged violation, what is simply recitation of record, and which violations are attributed to which defendnat(s)." (R. 83, Def.'s Mem. of Law in Support of Def.'s Mot. for Summ. J. ("Def.'s Mem.") at 7.) Plaintiffs' motion papers in connection with the present cross-motions offer little to clarify the confusion caused by their pleadings, and in many cases, add further confusion by failing to apply the correct legal standard and by pursing claims not pleaded in the Amended Complaint. These deficiencies notwithstanding, the Court now turns to the parties' cross-motions for summary judgment.

I. Count I: 42 U.S.C. § 1983

In Count I of the Amended Complaint, Plaintiffs allege that the District "deprived the Plaintiffs of their rights secured under the Fifth and Fourteenth Amendments to the U.S. Constitution, the related sections of the Illinois Constitution, the IDEA and 42 U.S.C. § 1983 by failing to comply fully with the Final Order." (Am. Compl. ¶ 151.) For the reasons explained below, the Court grants Defendant's motion, and denies Plaintiffs' motion, for summary judgment on the § 1983 claim.

A. Legal Standard and Standard of Review

Section 1983 of Title 42 of the U.S. Code provides a cause of action against any person who, acting under color of state law, "subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws[.]" 42 U.S.C. § 1983. Where, as here, the § 1983 defendant is a public entity, the plaintiff must demonstrate both an underlying deprivation of a federal right, and that the deprivation "was caused by an official policy or custom." Sow v. Fortville Police Dep't, ...


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