United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge.
Dr. Debra Ann Foster has filed a pro se lawsuit on behalf of herself and her minor daughter, Brittany Shanne Jeffries, against the Chicago Board of Education (identified in the complaint as Chicago School District 299), Amandla Charter School, and the Illinois State Board of Education. Foster asserts claims under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1415(i)(2)(A); 42 U.S.C. § 1983; section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; and Title II of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12132. Foster is seeking: 1) reimbursement for that she alleges she incurred in securing for her daughter educational services that were unavailable to her at the Amandla School; 2) compensatory damages for her daughter's loss of a free and appropriate public education at the Amandla School from about January to June 2010 and June 2011 to October 2012; 3) court costs; and 4) an order allowing her to "choose a school which will provide adequate training." Am. Compl., unnumbered page entitled "Relief." Foster is also seeking other compensatory and, possibly, punitive damages when she requests "remedies [sic] damages, in the amount of $250, 000." Id.
Amandla and the Chicago Board of Education have moved to dismiss Foster's amended complaint under Federal Rule of Civil Procedure 12(b)(6), with the Board also adopting Amandla's motion to dismiss. The Board has also moved to step in for the School District 299 as a defendant. The Court grants the Board's motion to adopt Amandla's motion to dismiss as well as the Board's motion to substitute for the District as a defendant. See 105 ILCS 5/34-2.
For the reasons stated below, the Court grants the defendants' motions to dismiss.
A. Events leading up to impartial due process hearing
The following facts are taken from Foster's amended complaint and from the decision by the hearing officer, which Foster references in her complaint. "[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers...." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks omitted).
On January 29, 2010, while Jeffries was attending the Amandla School, Foster asked the school to evaluate Jeffries for disabilities, with the aim of formulating an individual education program (IEP) for her. The IDEA defines an IEP as a "written statement for each child with a disability that is developed, reviewed, and revised, " and which must include, among other things, "a statement of the child's present levels of academic achievement and functional performance, " "[a] statement of measurable annual goals, including academic and functional goals, " "[a]n explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class." 20 U.S.C. § 1414(d)(1)(A)(i)(l), (ll) & (V). Foster alleges that the school did not respond to her request for an evaluation.
On June 11, 2010, a district representative helped Foster obtain an education plan for Jeffries under section 504 of the Rehabilitation Act. Section 504 plans are typically similar to IEPs. A little over a year later, on June 23, 2011, a special education case manager at the Amandla School informed Foster that Jeffries's section 504 plan was going to expire shortly unless Foster provided the school a current medical report for Jeffries. Foster alleges that "[t]he parents did not receive a 10 day notice of this decision nor were the parents given an opportunity to attend this decision meeting. The report was falsified stating the parents were in attendance and handed a copy of the report." Am. Compl. at 1. (It is unclear what report Foster is referencing.) Foster also alleges that the Amandla School failed to provide her information about her procedural rights.
In September 2011, Foster provided the Amandla School a current medical report for Jeffries. The report recommended an evaluation and an IEP to address Jeffries's "difficulty with working memory, and underlying language processing disability so that the Clinic can further evaluate her ADHD-Inattentive type." Id. at 2. The school evidently misplaced the medical report, so Foster provided a second copy in mid-September 2011.
In October 2011,  Foster again asked the school to evaluate Jeffries, with the aim of formulating an IEP for her. On November 10, 2011, the school gave Foster a notification stating that "[s]ince an evaluation was deemed appropriate or a re-evaluation is necessary to determine if your child continues to be a child with a disability, the process will begin upon the receipt of your written informed consent from the parent guardian." Id. at 3. Foster alleges, however, that the school failed to provide her the form by which a parent or guardian grants written informed consent, thereby preventing Jeffries from being evaluated. In lieu of the form, Foster sent the school on November 15, 2011 a "written request notice" found in a Parents' Handbook. Pl.'s Resp. Br. at 30.
On February 16, 2012, Foster attended a section 504 meeting with school officials, including a special education case manager, but they failed to finalize a section 504 plan for Jeffries. Foster also appears to allege that she attended another similar meeting, with the same outcome, on February 20, 2012.
B. Administrative due process hearing
Foster alleges that she requested an impartial due process hearing before the Illinois State Board of Education on March 20, 2012 and that she filed an amended due process complaint on October 21, 2012. The hearing decision and order states that Foster made the initial request on October 9, 2012, the amended request on October 12, 2012, and a second amended request on November 13, 2012.
Foster asked the hearing officer to find that the school district had neglected to provide Jeffries a free an appropriate public education as required by law by, among other things: failing to evaluate her; failing to develop an IEP to address her needs; failing to provide related services to address those needs; failing to fund an independent educational evaluation procured by Foster when the school did not conduct one; failing to provide adequate written notice of certain events relevant to the IEP process; and failing to conduct a "resolution meeting."
The due process hearing occurred on December 20-21, 2012. At the hearing, Foster requested the following relief:
- a ruling that the school district had failed to appropriately evaluate Jeffries;
- an order for speech and language evaluations;
- reimbursement for an evaluation for which Foster had paid;
- placement of Jeffries at an educational facility of Foster's choosing;
- compensatory education, with various particulars.
See Due Process Hrg. Decision at 3.
The hearing officer issued his decision on January 7, 2013. He found that the report that Foster provided to the school in September 2011, compiled by Dr. Jean Aschkenasy, a clinical psychologist, "recommended a full case study including a full speech and language evaluation particularly in the areas of language processing as well as working memory." Id. at 5. The officer concluded that based on Dr. Aschkenasy's report, along with teacher assessments and student progress reports, the school had sufficient evidence as of November 2011 "to suspect that the student was a child with a disability in need of special education services." Id. at 14. The hearing officer further found that although it was disputed whether the school district had obtained informed consent to conduct an evaluation, it was apparent that the paperwork had "[fallen] through the cracks, " and as a result, the district had not conducted an initial eligibility determination. Id. Thus Jeffries was "without an IEP and without services and related services relative to her significant deficits." Id. The officer concluded that the district's failure to show it made reasonable efforts to obtain informed consent constituted a procedural violation of the IDEA "which has substantially impeded the students [sic] right to a Free and Appropriate Public Education (FAPE) and caused a deprivation of educational benefit to the student for over a year's period." Id. at 15.
The hearing officer further concluded that although it was clear that Jeffries had a diagnosis of "ADHD, inattentive type, " there was insufficient evidence to show that this was impairing her academic progress. Id. He stated that "[t]his will be an issue for the IEP team to consider and make such a determination, if appropriate." Id. The officer also determined that Jeffries should have been found eligible to receive speech/language services based on Dr. Aschkenasy's evaluation. He concluded that it would be appropriate to require compensatory education as to speech and language for a twelve month period, as well as twenty-five intensive sessions devoted to her working memory and related deficits. Id. at 16. The purpose of this, the hearing officer stated, was to "bring [Jeffries] up to the level [where] she potentially would have been" had the district acted appropriately. Id.
The hearing officer also ordered an evaluation of Jeffries to determine whether she had a disability and was in need of special education and other services (aside from her demonstrated need for speech/language services), to be followed by development of an IEP if she was found to be in need of special education. Id. at 16-17. To this end, the officer set out a detailed schedule by which this was to be accomplished. Specifically, he ordered the school district to provide Foster with appropriate written notice and consent forms by January 18, 2013 and instructed Foster to sign and return the forms by January 23, 2013. The hearing officer stated that "[if]f [Foster] fails or declines to sign the appropriate consent for the initial ...