Court of Appeals of Illinois, First District, Fifth Division
JENNA R. P. and E. SCOTT P., as her Guardian and Next Friend, Plaintiffs-Appellants,
THE CITY OF CHICAGO SCHOOL DISTRICT NO. 229 and THE ILLINOIS STATE BOARD OF EDUCATION, Defendants-Appellees.
Appeal from the Circuit Court of Cook County. No. 10 CH 22880, Honorable Mary L. Mikva, Judge Presiding.
Justice Lampkin concurred in the judgment and opinion.
Justice Reyes specially concurred in part and dissented, with opinion.
GORDON, PRESIDING JUSTICE
¶ 1 Plaintiffs, Jenna R. P. (Jenna) and E. Scott P. (Scott), as her guardian and next friend, appeal an order of the circuit court of Cook County which found in favor of defendants City of Chicago School District No. 229 (District) and the Illinois State Board of Education (Board), denying plaintiffs reimbursement of Jenna's tuition and expenses for her placement at a private boarding school. For the following reasons, we reverse.
¶ 2 BACKGROUND
¶ 3 Plaintiffs filed this lawsuit pursuant to the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400 et seq. (2006)) and the Illinois School Code (School Code) (105 ILCS 5/14-1.10 (West 2008)). A brief description of the statute will aid in understanding this litigation. The purpose of IDEA is to provide all children with disabilities with a free appropriate public education. 20 U.S.C. § 1400(d)(1)(A) (2006). One of the primary tools to further this objective is the individualized education program (IEP). The IEP is a "written statement for each child with a disability, " which describes the child's present levels of achievement and performance, the child's measurable annual goals, and the special education and related services to be provided to the child. 20 U.S.C. § 1414(d)(1)(A). The IEP is developed by an "IEP Team, " which ordinarily must include the child's parents, a regular education teacher, a special education teacher, and a representative of the local educational agency. 20 U.S.C. § 1414(d)(1)(B) (2006). IDEA provides parents challenging an IEP with comprehensive procedural safeguards, including the right to an impartial due process hearing. 20 U.S.C. §§ 1415(f), (g) (2006). Any party aggrieved by the findings and decision made by the state educational agency has the right to file a civil action with respect to the complaint presented pursuant to section 1415 in a federal district court or a state court of competent jurisdiction. 20 U.S.C. § 1415(i)(2) (2006). The complaint in this case was filed in the circuit court of Cook County pursuant to section 1415(i)(2).
¶ 4 I. Jenna's Childhood Education
¶ 5 The record on appeal here, consisting primarily of the testimony and other evidence adduced at the due process hearing before the Board, discloses the following facts. In 1989, Jenna was adopted at birth by Scott and Rona S. (Rona). According to Scott, he and Rona separated when Jenna was three or four years old. Jenna's toilet training at 3½ years old included behavior modification treatment.
¶ 6 Jenna attended kindergarten and first grade at a private school named North Shore. She transferred to start the second grade at Near North Montessori, another private school. Jenna initially had trouble making new friends at the new school.
¶ 7 According to Scott, Jenna was molested from ages six to eight by a neighbor approximately five years older. Jenna's parents divorced in 1997, when she was approximately nine years old. Scott testified the divorce became acrimonious in 2000 and Jenna suffered as a result. In October 2001, when Jenna was almost 12 years old, her parents retained Dr. Heidi Hamernik, a neuropsychologist, because Jenna was temperamental and had difficulty maintaining friendships and interpreting social cues. According to Dr. Hamernik, Jenna had a verbal IQ in the average range and an above average performance IQ. Dr. Hamernik opined that Jenna's greatest difficulties were "within the social-emotional arena." Dr. Hamernik did not diagnose Jenna with a major depressive disorder, but found her sad, anxious and despondent. Dr. Hamernik suggested Jenna's parents share her evaluation and recommendations for addressing Jenna's difficulties in organizing her thoughts, becoming caught up in details and forgetting to write down or turn in homework.
¶ 8 Jenna's grades deteriorated during her eighth grade year at Near North Montessori, which was the 2003-04 academic year. Jenna received counseling from psychologist Lori Buckenberger between the ages of 13 and 15 years old. In June 2004, Dr. Buckenberger discussed with Jenna's parents the need to closely monitor Jenna's transition to high school "due to her history of poor academic follow through, poor organizational skills, and nonverbal learning disability." In February 2005, Dr. Buckenberger reported there had been no followup on any monitoring program for Jenna.
¶ 9 II. Jenna at Lane Technical High School
¶ 10 In September 2004, Jenna began attending Lane Technical High School (Lane Tech). According to Scott, he and his ex-wife agreed that to assist the transition, Jenna would live with his ex-wife and visit him on alternate weekends. As the semester progressed, Jenna began failing some subjects and was teased by her basketball teammates. On one occasion, several girls pushed Jenna into the snow. Jenna's school attendance began to decline.
¶ 11 According to Scott, in February 2005, Jenna was cohabiting with a slightly older boy at her mother's house. Rona took Jenna to Children's Memorial Hospital to address the situation. While at the hospital, Jenna discussed a plan to hang herself. Jenna was then hospitalized in the psychiatric ward. Hospital clinicians were concerned Jenna was depressed and having adjustment problems. The clinicians also opined that Jenna was developing a cluster of borderline personality traits, but did not diagnose her with personality disorder due to her age.
¶ 12 After Jenna was discharged from the hospital, Rona requested that Lane Tech evaluate Jenna to determine whether she qualified for special education. In March 2005, a Chicago Public Schools psychologist found Jenna's achievement fell at or above the ninth grade level and her IQ was in the average to above average range. According to Scott, he and Rona participated in the development of an IEP for Jenna in April 2005. The IEP reflects that Jenna had a primary disability of "emotional disturbance, " but was also found to have a learning disability. The IEP contained strategies to reduce Jenna's academic stress by deceasing her course load and granting time in a special education resource room. Nevertheless, in her freshman year, Jenna accumulated 68 absences, failed five subjects and earned only 3½ academic credits of the 24 credits required for a diploma.
¶ 13 During Jenna's sophomore year, on December 8, 2005, Rona participated in an evaluation of Jenna's IEP. On that date, Jenna was receiving an "A" in world studies, a "C" in Italian, a "D" in music appreciation, and was failing geometry and American literature. The IEP was modified to include, among other items: extended time for tests, quizzes, projects, essays and research papers; a small group or resource room set for testing; test and homework modifications, as needed; allowance for calculator use; provision of class notes, as needed; and a modified grading scale. In addition, Jenna was assigned to a special education resource room for 450 minutes weekly, to assist her with time management, independent functioning and organizational skills. Further, a special education teacher was assigned to Jenna to provide accommodations for her in her general education geometry and earth science classes. Jenna was also scheduled for 60 minutes of social work weekly, to improve Jenna's self-esteem and help her develop positive attachments.
¶ 14 According to Scott, however, Jenna began receiving homebound tutoring based on her truancy problem. Jack Cox, a social worker at Lane Tech, testified Jenna received a minimal amount of homebound tutoring because she was not at home. Jenna accumulated 115 absences and received no academic credits. Her class ranking at the end of the 2005-06 academic year was 919 out of 926.
¶ 15 Jenna went missing in Spring 2006. According to Scott, Jenna had later informed him she was living with a woman and her pimp. Jenna also said the pimp wanted to prostitute her, but she refused. Jenna further admitted she had once smoked crack cocaine. On May 2, 2006, Rona met with Jenna's IEP Team by telephone to revise the IEP. The IEP does not note Jenna was missing from home.
¶ 16 In May 2006, Rona notified Scott that Jenna had been missing for over one month. Scott hired a private investigator to find Jenna. After locating Jenna, Scott placed her in an inpatient psychiatric hospital, where the staff told him Jenna was severely depressed, oppositional and defiant, with a cluster of borderline personality traits. The hospital recommended long-term residential care.
¶ 17 III. Jenna at the Aspen Achievement Academy
¶ 18 On May 26, 2006, Scott decided to send Jenna to the Aspen Achievement Academy in Utah. He retained individuals otherwise employed as prison guards or correctional officers to escort Jenna to Utah. The academy is a wilderness-therapy program, in which adolescents are dropped off in the Utah desert and taught to survive in groups.
¶ 19 Jenna was given a psychological evaluation by Dr. Jeffrey D. Rush during her time in Utah. Dr. Rush's report refers to a number of traumatic events in Jenna's life, including her mother's illness, an alleged gang rape and a recent abortion. Dr. Rush diagnosed Jenna with dysthemic disorder, oppositional defiant disorder, post-traumatic stress disorder, cannabis dependence and a nonspecified learning disorder with a nonverbal learning disability and features of attention deficit hyperactivity disorder. Jenna also displayed symptoms of borderline personality disorder, although she was not diagnosed with such due to her age. Dr. Rush recommended Jenna be placed in a highly-structured and supportive program to address her problems. Dr. Rush also recommended individual and family therapy for Jenna, as well as a substance abuse program.
¶ 20 Scott testified he reconciled with his daughter in Utah, but knew the academy was not a long-term solution. In early June 2006, Scott contacted Josephine Martinez, who was responsible for special education services at Lane Tech, for the purpose of arranging and financing long-term plans for Jenna when she left the academy in Utah. Martinez informed him the IEP Team could not be convened given the end of the school year, but to remain in contact to address these issues.
¶ 21 IV. Jenna at the Elan School
¶ 22 On July 14, 2006, Scott sent a 10-day notice to Arne Duncan, then superintendent of Chicago Public Schools, advising of his intent to place Jenna at the Elan School in Portland, Maine (Elan) and to seek reimbursement from the District. Scott explained this decision was based on his desire to keep Jenna safe and sober, the inclusion of Elan on a list of Board-approved schools, cost, and Jenna's intelligence relative to the children at other institutions. On July 25, 2006, Louis Rodriguez, the director for due process and mediation for the Chicago Public Schools, wrote to Scott, notifying him the Chicago Public Schools would not fund Jenna's unilateral placement at Elan.
¶ 23 Jenna attended Elan from July 2006 through April 2009. Kate Hawkins, a social worker for Elan, testified the school provides a highly structured program for emotional and transitional problems. Elan students attend academic classes at night (with small class sizes) and participate in a life skills program during the day. According to Hawkins, Elan students also perform jobs at the school and are promoted to more interesting jobs if they are cooperative and diligent. Hawkins testified she conducted sessions with Jenna in which she learned Jenna put herself into various dangerous situations. However, Hawkins never conducted a formal evaluation or assessment of Jenna. According to Hawkins, Jenna left Elan on a positive note, but did not reach the highest job level at the school. Hawkins also testified Jenna did not complete the program at Elan, but obtained a high school diploma from the state of Maine. The record further contains a May 8, 2008, letter from Hawkins to Lane Tech, noting prior interventions proved unsuccessful until Jenna was placed at Elan. Hawkins opined Jenna could not have been educated outside a very structured and supervised residential program like Elan.
¶ 24 Scott testified he was in family therapy with Jenna during her time at Elan, usually weekly. According to Scott, Jenna made academic progress at Elan and was accepted to attend college at Western Illinois University, Southern Illinois University, and Lewis University. Being accepted at Western Illinois University was significant because Jenna expressed an interest in forensic science. Elan's records for July 2007 show Jenna received high honors for all subjects, earning 100 in algebra, 98 in geometry, 98 in reading the classics, 98 in Spanish, 95 in United States history I and 94 in English III. Jenna had a "B" average when she left Elan.
¶ 25 V. Scott's Efforts to Return Jenna to Lane Technical High School
¶ 26 Meanwhile, on November 17, 2006, Scott contacted Lane Tech's case manager to request an evaluation of Jenna's placement at Elan. At a November 26, 2006, meeting of the IEP Team, representatives told Scott that Jenna would have to be evaluated by a psychologist chosen by the District. During the meeting, Scott also voiced his concerns about being able to afford Jenna's placement at Elan. Meeting notes indicate: "[d]ue to his decision being unilateral, likelihood of CPS reimbursement for [Jenna's] residential school in Maine is not predicted to be granted (team discussed post-meeting with father)."
¶ 27 On February 28, 2007, after a dispute regarding whether Jenna should return to Chicago for a psychological evaluation, Scott provided the District with the names of two psychologists in Maine, including Dr. Greggus Yahr. On April 27, 2007, the District agreed to pay Dr. Yahr to evaluate Jenna. Notes from the April 27 meeting indicate a 90-day observational period was required to assist the District in assessing the least restrictive environment for educating Jenna. On May 17, 2007, Scott signed the consent forms for Dr. Yahr's evaluation.
¶ 28 On January 17, 2008, Lane Tech's then-case manager and special education teacher Lauren Osada contacted Dr. Yahr, who promised to contact Osada after visiting Elan the following week. Dr. Yahr, however, did not place a followup telephone call. Osada telephoned Dr. Yahr again on February 11, 2008, but Dr. Yahr did not return the call. On April 8, 2008, Dr. Yahr informed a District psychologist his computer crashed in November 2007 and he also believed he had transmitted his report on Jenna by facsimile long ago. On April 31, 2008, Dr. Yahr sent the District a summary report, noting Jenna's difficulties were emotionally based, not cognitively based. Dr. Yahr diagnosed Jenna as meeting the criteria for a student with an emotional disability, due to her inability to self-regulate, depression in situational remission, and characteristics of borderline personality disorder. Dr. Yahr opined the appropriate setting for Jenna would be one where she is unable to avoid her emotions or the situation and remains accountable for her behavior.
¶ 29 On February 11, 2009, the District notified Jenna and Scott of a March 6, 2009, conference at Lane Tech to review and revise Jenna's IEP and to consider transition services. Lane Tech case notes suggest the conference was delayed because Cox (Lane Tech's social worker) had difficulty speaking to Jenna at Elan and the IEP Team needed Jenna's updated medical records. On March 11, 2009, Scott left a voicemail at Lane Tech, stating he was running out of money and demanding a decision regarding Jenna's placement. On March 12, 2009, Jenna completed a transition planning questionnaire about her grades and activities at Elan, as well as her plan to live with Scott until she attended Western Illinois University in September 2009.
¶ 30 On March 13, 2009, the IEP Team held a meeting regarding Jenna's placement, which Jenna attended via conference call. The IEP Team noted Jenna had 22.75 credits from Elan and had been on the Elan's honor roll for the prior two years. The IEP Team listed necessary accommodations for Jenna and steps to assist Jenna's transition to college. Jenna's revised IEP called for Jenna to boost her word processing and computer skills to prepare for her goal of becoming a forensic scientist. Jenna was also sceduled to receive 30 minutes of weekly social work consultation to address her distractability, cognitive distortions and coping mechanisms.
¶ 31 The revised IEP also called for Jenna to take biology, social science, Spanish II, driver's education, music, art, and computer informational technology courses in general education classrooms at Lane Tech for 80% of the school day. The IEP Team rejected Scott's request for residential placement for Jenna. The team concluded supportive services in a special education room for 20% of the school day would meet Jenna's needs.
¶ 32 V. The Due Process Hearing
¶ 33 On March 27, 2009, Scott requested a due process hearing before the Board, which was not held until January 19, 2010. At the hearing, the Board's hearing officer received the aforementioned testimony and evidence. In addition, Scott testified Jenna returned to Chicago on April 6, 2009, and regressed to her prior high-risk behaviors within three weeks of her return. Cox opined Jenna's educational needs could be met at Lane Tech with related services provided 20% of the school day. Cox also recommended 275 minutes of social work monthly, which was more than most students he saw were provided. Osada testified Lane Tech offered special education classes across the spectrum, including self-contained instructional classes for more severe cases. Both Cox and Osada concurred with the March 2009 IEP. David Yaffe, a special education teacher and Lane Tech's then-current case manager, also concurred with the March 2009 IEP.
¶ 34 On January 29, 2010, the Board's hearing officer entered an order denying reimbursement for Jenna's placement at Elan. The hearing officer ruled the District had denied Jenna a free appropriate public education. The hearing officer also ruled the District failed to carry its burden of proving Jenna's IEP was appropriate, given the overwhelming testimony that Jenna needed a small teacher- pupil ratio in a highly-structured setting. Yet the hearing officer further ruled Scott failed to carry his burden of showing his placement of Jenna with Elan was appropriate. The hearing officer observed Jenna's problems stemmed from parental management issues and it was not necessarily the school's duty to provide residential placement for a chronic runaway based on psychological reasons unrelated to the school.
¶ 35 In the hearing officer's view, however, Scott's chief problem was in failing to demonstrate he placed Jenna in the least restrictive environment, given IDEA's mandate that disabled students be educated alongside nondisabled students to the maximum extent appropriate. The hearing officer found Cox and Osada seemed to suffer from selective memory regarding questions to which they might be expected to know the answers. Nevertheless, giving due weight to the opinions of District staff that they could have provided a free appropriate public education to Jenna, the hearing officer opined that providing Jenna with a free appropriate public education in the least restrictive environment would have meant placing Jenna in a self-contained, instructional classroom at Lane Tech, to benefit from a lower teacher-to-pupil ratio, with more structure and certified staff, or a private day school if that program failed. Given these conclusions, the hearing officer declined to rule on the District's claim that Scott made his request for a due process hearing beyond the relevant limitations period in IDEA.
¶ 36 VI. The Circuit Court Proceedings
¶ 37 On May 27, 2010, plaintiffs filed a complaint in the circuit court of Cook County to contest the findings and decision of the Board. On August 6, 2010, the District and the Board filed their answer, along with the administrative record. In January 2011, plaintiffs moved for summary judgment. In February 2011, defendants filed a cross-motion for summary judgment.
¶ 38 On May 27, 2011, the circuit court entered a memorandum opinion and order in favor of the District and the Board. The circuit court agreed with the Board that the District denied Jenna a free appropriate public education. The circuit court also agreed with plaintiffs that the Board's hearing officer misapplied the requirement of educating Jenna in the least restrictive environment in this case. The circuit court nevertheless concluded when it "focused more broadly on whether this was an appropriate placement under the IDEA, and whether [Scott]'s actions were 'reasonable' under the statute, reimbursement is not required." The circuit court ruled Scott's unilateral placement of Jenna with Elan "was certainly a 'reasonable' response to Jenna's myriad of issues, [but] went beyond concerns relating to her education." The circuit court noted Scott testified he placed Jenna at Elan mainly out of concern for her safety and security. The circuit court ...