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Miksis v. Evanston Township High School District # 202

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

February 2, 2017

Michael and Christine Miksis, on behalf of John Miksis, Plaintiffs,
Evanston Township High School District # 202, Defendant.


          Thomas M. Durkin United States District Judge.

         By minute order dated September 30, 2016 (R. 81), the Court denied the parties' pending cross-motions for summary judgment (R. 49, 51), stating that a written opinion would follow. The Court now sets forth the reasons for its September 30, 2016 order.



         A. Introduction

         B. The First Lawsuit

         C. Meetings To Establish John's Educational Program For Post-Senior Year And Subsequent Settlement Of The First Lawsuit

         D. Post-Settlement Disputes

         1. Orchard Academy Aides And Supports For John's Classes At Oakton Community College

         2. Defendant's Termination Of Orchard Placement And Disenrollment From School For Nonattendance

         3. PACE's Denial Of John's Application And His Enrollment In ELSA

         E. The Present Lawsuit


         I. Subject Matter Jurisdiction

         A. Jurisdiction Based On Breach Of An Agreement To Settle A Federal Claim

         B. Federal Question Jurisdiction Based On The IDEA

         C. Federal Question Jurisdiction Based On An Embedded Issue Of Federal Law

         D. Supplemental Jurisdiction

         II. Summary Judgment

         A. Standard of Review

         B. State Law Breach Of Contract Claims

         1. Whether Administrative Exhaustion Applies

         2. Whether Defendant Breached The Settlement Agreement

         a. Orchard Aides And Supports For Community College Classes

         b. PACE/ELSA Program

         (i) Anticipatory Breach Theory

         (ii) Material Breach Doctrine

         (iii) Supplying The Missing Contractual Term On Which The Parties Failed To Agree

         C. Federal IDEA Claims

         1. Whether Plaintiffs Were Required To Exhaust Their Administrative Remedies

         a. Waiver

         b. Futility Or Inadequacy Of Exhaustion

         2. Whether Defendant Denied John A FAPE

         D. Equitable Issues: Failure To Cooperate, Estoppel, and Unclean Hands



         A. Introduction

         This case concerns the high school education of John Miksis. John is currently twenty-six years old, but, when the events at issue began, he was a twelve-year old child with Down Syndrome who was about to enter the ninth grade. Defendant Evanston Township High School District #202 is a public educational agency that receives federal funding. As such, Defendant is subject to federal education laws and regulations, including the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq., as amended by the Individuals with Disabilities Education Improvement Act (“IDEIA”), P.L. 108-446, 118 Stat. 2647 (Dec. 3, 2004) (hereinafter (“the IDEA” or “the Act”).[2]

         The IDEA is a federal statutory scheme governing the education of disabled students like John, which seeks “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.” 20 U.S.C. § 1400(d)(1)(A). The term “free appropriate public education, ” or “FAPE, ” is defined in the Act as “special education and related services that-(A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of [the Act].” 20 U.S.C. § 1401(9).

         B. The First Lawsuit

         In the spring of 2004, John's parents, Michael and Christine Miksis, were in discussions with Defendant about the individualized education program, or “IEP, ”[3]for John's up-coming freshman year at Evanston Township High School (“ETHS”). The parties were unable to agree about what John's IEP should include. Therefore, John's parents filed an administrative complaint and requested an impartial due process hearing to resolve the issue.[4] The hearing was held over the course of several days in the fall of 2004. At the conclusion of the hearing, the hearing officer issued a written decision finding against John and his parents. Dissatisfied with that result, John's parents exercised their right to appeal the hearing officer's decision to a federal court in this district.[5] John's parents' lawsuit was assigned to Judge Holderman (05-cv-6720), who, shortly after the case was filed, issued an order granting Plaintiffs a preliminary injunction to require Defendant to provide on a temporary basis while the case was being litigated the educational supports and services that John's parents believed were necessary to comply with the IDEA. See John M. ex rel. Christine M. v. Bd. of Educ. of Evanston Twp. High Sch. Dist. 202, 450 F.Supp.2d 880 (N.D. Ill. Aug. 18, 2006).[6] Defendant, however, filed an interlocutory appeal from Judge Holderman's preliminary injunction order, and ultimately was successful in getting that order reversed for further consideration. See John M. v. Bd. of Educ. of Evanston Twp. High Sch. Dist. 202, 502 F.3d 708 (7th Cir. 2007). The Seventh Circuit issued a ruling in favor of Defendant on September 17, 2007, and a mandate remanding the case to Judge Holderman for further proceedings on October 9, 2007.

         By the time the Seventh Circuit remanded the lawsuit to the district court, John was in his third year of high school. Thereafter, another year passed while the parties attempted to settle the case. In the fall of John's senior year, Defendant filed a motion to dismiss the federal lawsuit, arguing that, because John was about to finish his senior year, the lawsuit was moot. John's parents contested that motion, arguing that the case was not moot because John's rights under the IDEA did not terminate with the end of his senior year of high school. Instead, John was entitled to special educational services from Defendant until he graduated, or through the day before he turned twenty-two, whichever came first. See 20 U.S.C. § 1412(a)(1)(A); 34 C.F.R. § 300.101(a). As all parties to the lawsuit conceded, John would not actually be graduating at the end of his senior year of high school. John's parents argued that, because Defendant would still be required to provide John with educational services beyond his senior year of high school, [7] the substantive issues in the lawsuit regarding the special educational services and aides to which John was entitled were not moot. See John M., 05-cv-6720, Dkt. # 98 at 9.

         In a ruling issued on March 16, 2009, Judge Holderman rejected Plaintiffs' arguments that the underlying merits issues about the educational services to which John was entitled presented a live controversy. According to Judge Holderman, the question of what educational services John was entitled to during his first four years of high school was different than the same question asked about John's IDEA-eligible years after his senior year of high school. The federal lawsuit filed by John's parents, Judge Holderman concluded, dealt only with the former question, which all parties agreed no longer needed to be decided:

Plaintiffs do not articulate how or why John's transition program[8] should be considered analogous to John's academic program. It appears to the court that these programs are distinct, as there is no indication that either party intends the transition program to include enrollment within the general curriculum. The fact that Evanston School District will be providing these services is not enough by itself to demonstrate that John's past IEPs remain relevant at this point in John's education.

John M. v. Bd. of Educ. of Evanston Twp. High Sch. Dist. 202, 2009 WL 691276, at *4 (N.D. Ill. Mar. 16, 2009) (footnote omitted). Nevertheless, Judge Holderman agreed with Plaintiffs' additional arguments that the first lawsuit was not entirely moot, because, in addition to seeking a change in Defendant's proposed IEP for John, Plaintiffs also were seeking compensatory education[9] for Defendant's past violations of the “stay-put” IEP[10] and their attorneys' fees.[11] Plaintiffs' claims to recover both of these items of damages, Judge Holderman held, were still viable. Id. at *5-6.

         C. Meetings To Establish John's Educational Program For Post-Senior Year And Subsequent Settlement Of The First Lawsuit

         Around the time the parties were addressing the mootness issue in the first lawsuit, they also were meeting outside the litigation to discuss John's placement after the end of his senior year and during the final years of his IDEA eligibility. These discussions occurred during two meetings in the spring of 2009. The first meeting took place on March 27, and the second meeting took place on May 15. In both instances, the meeting was led by Bob Gottlieb, who at the time was Defendant's Director of Special Education. Believing they had reached an agreement regarding John's educational placement during these meetings, the parties subsequently entered into a settlement of the first lawsuit. The Settlement Agreement provided that Plaintiffs would release Defendant from their claims in the lawsuit, and, in return, Defendant agreed to provide certain special educational services during John's first post-senior year of IDEA-eligibility (2009-2010 academic year) as follows:

1. As discussed during John's Individual Education Plan (“IEP”) meeting held by the parties on May 15, 2009, the parties agree that John will attend Orchard Academy . . . in its intensive individualized transition program beginning August 25, 2009 at the District's expense. The parties further agree that Orchard Academy will make its own individualized assessments of John's educational, psychological, physical and life skills in order to recommend to the IEP team what John's educational goals are and to recommend to the IEP team the services, aids and therapies that John will require to accomplish those goals and move toward independent living. During the period of Orchard Academy's individual assessment of John, John will receive those aid[e]s, including but not limited to speech and occupational therapy, at the same level he received during the 2008-2009 school year (with the exception of Adapted Physical Education, which will not be provided). Within 30 days after Orchard Academy completes its assessment, the parties will meet in an IEP meeting to confirm that the assessment and educational and other goals established by Orchard Academy are consistent with John's transition goals discussed in the parties' May 15, 2009 IEP meeting and to finalize John's IEP for 2009-2010.

         R. 49-3 at 2 (Settlement Agreement, ¶ 1). The Agreement goes on to address John's final IDEA-eligible secondary school years (2010-2011 academic year; 2011-2012 academic year through October 14, 2012) as follows:

2. Beginning in the Fall of 2010, it is the parties' intent that John will be enrolled in the transition education program at the Professional Assistance Center for Education, referred to as the PACE program at National Louis University (the “PACE program”), . . . at the District's expense, with John continuing in the PACE program through the day before his 22nd birthday; however, it is agreed that John's enrollment in the PACE program is contingent upon the PACE program's acceptance of John into its program. If John is not accepted into the PACE program, if he is terminated from the PACE program, or if the PACE program is terminated, the parties agree to meet to discuss and consider other appropriate placement options for John's post-secondary transition education. However, all other provisions of this Agreement shall remain in effect regardless of John's acceptance, non-acceptance or termination from or of the Orchard Academy or PACE programs.

Id. at 7-8 (Settlement Agreement, ¶ 2).

         The Agreement concludes with an acknowledgement that it “is a release and settlement of disputed claims, as provided for herein[ ] . . . entered into solely as and for a compromise settlement of such disputed claims.” Id. at 5 (Settlement Agreement, ¶ 9). It was Dated: July 11, 2009 by each of John's parents and by John, and on July 17, 2009 by Eric Witherspoon, Superintendent of Evanston Township High School District #202. Id.

         D. Post-Settlement Disputes

         On July 1, 2009, Maria Smith replaced Gottlieb as Defendant's Director of Special Education. R. 52-5 at 2 (Smith Declaration). Smith did not participate in either of the two meetings held in the spring of 2009 or in the negotiation or execution of the Settlement Agreement. See R. 49-7 at 18-21 (Smith Deposition). Shortly after Smith took over and at the beginning of John's first post-senior secondary school year, disputes arose over the nature and scope of the educational support and services to which Defendant had agreed.

         1. Orchard Academy Aides And Supports For John's Classes At Oakton Community College

         The first dispute centered on John's enrollment in classes at Oakton Community College. John began his placement at Orchard Academy on August 31, 2009. A few weeks prior to that date, Christine Miksis had emailed Tim Bobrowski, Director of Orchard Academy, indicating that a settlement had been reached in the lawsuit and that she had enrolled John in classes at Oakton.[12] From approximately August 31 through September 9, John attended Orchard Academy and the community college classes in which his parents had enrolled him. Orchard provided John with transportation to and from his classes and a one-on-one aide to support them. Moreover, a special education assistant at Orchard, Sarissa Hahn, sent John's parents an email with an attached document titled “Orchard Academy Responsibilities with regard to John Miksis attending Oakton Community College.” R. 49-5.[13] The stated purpose of the document was “to provide] a clear set of our expectations for John, your family, and ourselves[ ] . . . to be sure we are all on the same page in terms of supports for John.” Id. at 1. The document states, among other things, that Orchard staff would “provide supports to John to access his classroom at Oakton College, ” would “attend class, if professor allows, ” and would “assist John to access approximately 4 hours of tutoring support at Oakton.” Id. at 2.

         On or about September 9, 2009, Smith had a telephone conversation with Bobrowski regarding John's program at Orchard. It was then that she first learned John had been attending community college classes since the start of the school year and Orchard had been providing aides and supports for those classes. According to Bobrowski, Smith notified him “that John's attendance at Oakton was a unilateral action by John's parents, that the District had not agreed to and did not authorize Orchard to provide services and transportation related to Oakton courses, and that Orchard should cease providing such services and transportation to John.” R. 52-4 at 8 (Bobrowski Decl. ¶ 29). “Based on Dr. Smith's direction, on or around September 9, 2009, Orchard discontinued providing John services related to his attendance at courses at Oakton.” Id. (Bobrowski Decl. ¶ 30). Also on September 9, Smith spoke with Christine Miksis by telephone. After the call, Christine wrote Smith an email stating the following:

I am sorry you are so upset. Clearly, you were not provided with complete information.
There were many people at the meeting on May 15, 2009. There was no IEP written.
John's goals for his future were presented at a meeting in March where several placement options were discussed. Orchard Academy did not come to that meeting; their representatives did attend the May meeting. The decisions made at the May meeting determined what was written in the settlement agreement. The settlement agreement clearly states that John's 2008-2009 program remains in effect until after Orchard Academy completes its assessment and an IEP meeting is held to write up a transition IEP. No one tried to pull anything over on anyone and I am sorry you feel that way.
I also do not understand why you are so adamantly opposed to John taking classes at Oakton; you have many students from ETHS who are taking classes there . . . and some receive many more services than John. The Orchard Academy representative brought up the issue of the aide and your own attorney agreed that this service would be continued, with a gradual taper.
The program was clearly described by the Orchard Academy representative and it is partly described on their website ( This is the individualized program.
Again, this was all decided in front of many people. (The program that was included in John's file may have come from another publication and I believe that program is their “standard” program).
I am sorry to hear that you have already decided what program is appropriate for John without ever having met him or us. However, we have paid for John to take the classes at Oakton and you cannot bar him from taking classes there. He will continue his classes as he is entitled to continue his education like any other student. The classes are necessary for him to meet his vocational and independence goals. At this time it is probably best to leave all further discussions to the attorneys as it seems that we are clearly at an impasse. I have informed Orchard Academy that we will continue sending John to his classes at Oakton. If you do not authorize them to continue the program as agreed to in the settlement plan, we cannot send John there until there is a definitive resolution. This will hold up the completion of the assessments.

         R. 49-8 at 1.

         That same day, Defendant's attorney, Patricia Whitten, sent Plaintiffs' then-attorney, Michael Graham, a letter setting forth Defendant's position regarding the community college issue:

Mrs. Miksis informed OA [Orchard Academy] that John would be attending these classes shortly before John began attending the program at OA. She told them that the District was aware of this and that they must provide transportation and support in accordance with the “stay put” IEP from 8th grade, which she said was still in effect. As you and I have already agreed, said IEP is no longer in effect. Due to your client's misrepresentations to OA staff, OA mistakenly began providing transportation and a 1:1 aide for John for two Oakton classes which started last week (John's first week attending the OA program). . . . The settlement agreement between the parties does not contain any agreement regarding John's attendance at courses at Oakton Community College, nor does the current transition program IEP provide for this. No one on the IEP team other than the parents thought that it would be appropriate for John to take courses at Oakton at this point . . . and you stated at the March 27, 2009 IEP meeting that the parents had decided that attending Oakton was not appropriate for John at this time. The parents unilaterally registered John at Oakton without consulting anyone from the District or OA, which we feel is an attempt to usurp the OA transition program. OA's completion of John's assessments has been delayed due to his attendance at Oakton and resulting unavailability.

         R. 52-6 at 14.

         Thereafter, it appears the parties reached a truce of sorts, with John's parents providing transportation and tutoring for John's community college classes at their own expense while John also continued to participate in Orchard's program when he was not attending academic classes at the community college. John's parents sought to preserve their rights under the IDEA and the Settlement Agreement by sending Smith a letter, stating, among other things, that they “may seek reimbursement” for the costs they incur to provide the aides and supports terminated by Smith.[14] Meanwhile, Smith tolerated John's attendance at Oakton classes and consequent absences from the Orchard program in deference to his parents' preferences.[15] In addition, the parties continued to meet and communicate with each other over Orchard's on-going assessments of John and proposed adjustments to be made to his 2009-2010 IEP based on those assessments, as both parties acknowledged had been agreed upon at the May 15, 2009 meeting.

         2. Defendant's Termination Of Orchard Placement And Disenrollment From School For NonAttendance

         In the early part of 2010, John's attendance at Orchard declined even further and Smith apparently came to the decision that this was not acceptable. Rather than call a meeting to communicate her decision and discuss whether mutual resolution of the problem was possible, Smith sent John's parents a letter. The letter was sent by regular mail on or about March 5, 2010, and stated that John's placement at Orchard would be terminated effective March 15 based on his nonattendance:

[S]ince the meeting [on January 15], John's attendance at the Orchard Academy program has declined even more, and as you know this semester he is attending only once a week, on Fridays ..... Under these circumstances, you are preventing District 202 from providing a transition program to John this year, and the District has no choice but to terminate the placement based on your non-cooperation. Clearly John is not able to gain benefit from this or any program by attending once a week. Please be advised that John's program at Orchard Academy will end at the end of the day on March 15, 2010. The enclosed IEP, developed over three IEP meetings, is being offered to John based on his full time attendance in a transition program. If you choose to accept the placement at Orchard Academy and want to send John to the program full-time, please contact me, and I will then reinstate his program at OA. If you prefer, we could have another IEP meeting as soon as possible to review the program and facility options yet again. Please let me or your attorney know how you wish to proceed. In any event, we should schedule a meeting in the near future to discuss John's placement for 2010-11 pursuant to the settlement agreement.

         R. 52-6 at 19.

         An identical letter also was sent by Whitten to Plaintiffs' new attorney, Stephen Glick. See R. 52-6 at 22. Glick responded to a telephone voice message conveying the same information, apparently left by another of Defendant's attorneys (John Relias), with an email dated March 15, 2010 (the effective date of John's termination per the March 5 letter):

I received your voice message (left Friday) today[ ] . . . that the district is going to terminate John's current placement because he is not attending except on Friday and that the district does not want to continue to pay for a placement that is not being used. My position on that is that this would be an illegal act. Under the law, the district is obligated to offer a FAPE. This placement is in place via a written settlement agreement. I am not aware of any authority, either via the settlement agreement or via federal law that authorizes the district to unilaterally terminate this placement (or any placement) without a properly noticed IEP meeting. Also, I think this needs to be discussed/considered by the IEP team. I am certain that Patti [Whitten] has ...

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