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B.J. v. Homewood Flossmoor CHSD #233

United States District Court, N.D. Illinois, Eastern Division

November 26, 2013

B.J., and T.J. and J.J., Individually and as next friends of B.J., Plaintiffs,
v.
HOMEWOOD FLOSSMOOR CHSD #233, DR. VON MANSFIELD, in his Official Capacity as Superintendent; ILLINOIS STATE BOARD OF EDUCATION; CHRISTOPHER KOCH, in his Official Capacity as State Superintendent, Defendants

For B. J., J. J., Individually and as Next Friends of B.J, T. J., Plaintiffs: Olga Frances Pribyl, LEAD ATTORNEY, Lam Nguyen Ho, Margaret Mcauslan Wakelin, Equip for Equality, Chicago, IL.

For Von Mansfield, in his Official Capacity as Superintendent, Homewood-Flossmoor High School District 233, Defendants: Darcy L Kriha, LEAD ATTORNEY, Franczek Radelet PC, Chicago, IL; Julie Heuberger Yura, Franczek Radelet P.C., Chicago, IL; Kendra Elizabeth Berner, Franczek Radelet, Chicago, IL.

For Illinois State Board Of Education, Christopher Koch, in his Official Capacity as State Superintendent, Defendants: Michael D. Arnold, LEAD ATTORNEY, Illinois Attorney General's Office, Chicago, IL.

OPINION

Page 1094

MEMORANDUM OPINION & ORDER

JOAN B. GOTTSCHALL, United States District Judge.

Plaintiffs B.J., a student in Defendant Homewood Flossmoor Community High School District #233 (" the District" ), and T.J. and J.J., next friends of B.J., bring suit under the Individuals with Disabilities Education Act (" the IDEA" ), 20 U.S.C. § 1400 et seq. , which requires states to provide a " free appropriate public education" to disabled children in exchange for federal funding. In Count I of the complaint, the plaintiffs challenge the appropriateness of the residential treatment placement that the District proposed to further B.J.'s individual education plan (" IEP" ). In Count II, they bring a claim pursuant to Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), alleging discrimination by the Illinois State Board of Education (" ISBE" ) and State Superintendent Christopher Koch against students with severe obsessive compulsive disorder (" OCD" ). They claim that ISBE regulations do not allow reimbursement for placement of such students at any educational facility equipped to address their disability.

Now before the court is the motion of the ISBE and Superintendent Koch to dismiss Count II of the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6). The ISBE argues that the plaintiffs lack standing to bring their Rehabilitation Act claim, and that the claims against Superintendent Koch and the ISBE are redundant. The plaintiffs do not object to the dismissal of the claim against Superintendent Koch, and that claim is dismissed. For the reasons explained below, the court denies the motion as to the ISBE.

I. Background

The background of this case was summarized in the court's August 30, 2013,

Page 1095

opinion, addressing the scope of the evidence the plaintiffs may present in support of their IDEA claim. ( See Mem. Op. & Order, Aug. 30, 2013, ECF No. 45.) In brief, after attempts to provide B.J. with educational services at home failed, the plaintiffs and the District agreed that a residential placement would be necessary to implement B.J.'s individual education plan (" IEP" ). The plaintiffs proposed that B.J. attend a short-term residential program at a hospital in Wisconsin (" the OCD Center" ), which the plaintiffs contend is the only facility they have located that can treat students with OCD as severe as that from which B.J. suffers. The OCD Center provides Exposure Response Prevention (" ERP" ) therapy, a form of cognitive behavior therapy for OCD. The parties agree that ERP therapy is necessary to implement B.J.'s IEP.

The District refused the plaintiffs' proposed placement and proposed that B.J. be placed at a residential facility in Montana. The plaintiffs objected to this placement and requested a due process hearing before an impartial hearing officer (" IHO" ). After the hearing, the IHO concluded that the OCD Center was not an appropriate placement for B.J. because it was not a primarily educational facility. He further concluded that the Montana facility was an appropriate placement for B.J. The plaintiffs challenge those conclusions in their IDEA claim in Count I of the complaint. They argue that the Montana facility is not an appropriate or safe placement for B.J. because it lacks staff with sufficient training in ERP therapy and experience in working with youth with severe OCD. They further argue that the OCD Center will provide instruction appropriate to meet B.J.'s IEP goals and is the only placement that will enable B.J. to make progress toward those goals.

With respect to the Rehabilitation Act claim in Count II of the complaint, the plaintiffs allege that ISBE is the state agency which administers public education in the state of Illinois and that, because ISBE receives federal financial assistance, it is subject to the requirements of Section 504 of the Rehabilitation Act. Pursuant to the Illinois School Code, the ISBE " promulgate[s] the rules and regulations for determining when placement in a private special education facility is appropriate." 105 Ill. Comp. Stat. 5/14-7.02. The ISBE's rules bar school districts from placing students in nonpublic programs which the ISBE has not ...


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