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Shaw v. Dolton Riverdale School District 148

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

November 4, 2019

ANTOINE SHAW and CHERYL SHAW, on behalf of W.S. dob 7/16/2004, Minor Child, Plaintiffs,



         W.S. is a fifteen-year-old child who, until 2017, was a student in a school within Defendant Dolton Riverdale School District 148. During the 2016-2017 school year, then a seventh-grader at Roosevelt Junior High School, W.S. received special education services for an emotional disability and a learning disability. In September 2016, W.S.'s parents, dissatisfied with their child's classification, filed a due process complaint with the Illinois State Board of Education (“ISBE”); the complaint was withdrawn after the parents and the District entered into a mediation agreement on May 9, 2017. Among other conditions, that agreement required the District to place W.S. in a private therapeutic day school and change W.S.'s eligibility classification from emotional disability to autism. The parents allege that the District breached that agreement soon after it was made, so they filed a new complaint with an impartial hearing officer (“IHO”) appointed by the ISBE. The IHO dismissed their complaint and this appeal followed, in which Plaintiff parents challenged the IHO's decision as a violation of federal law and also assert state law claims for breach of the mediation agreement. They filed their complaint in state court, but Defendant removed the case to this court and has now moved to dismiss. As explained below, that motion is granted in part; the federal claims are dismissed, and Plaintiffs' state law claims are returned to the Circuit Court of Cook County.


         Plaintiffs' allegations, presumed true for purposes of this analysis, establish the following: W.S. was a special education student at a school in the Dalton Riverdale School District 148, a school district in Cook County, Illinois. (Verified Two Count Compl. for Breach of Mediation Agreement and Appeal (hereinafter Pls.' Compl.) ¶¶ 2-5, Ex. A to Mem. of Law in Supp. of Def.'s Rule 12(b)(6) Mot. to Dismiss Pls.' Compl. [11].) W.S. was in a special education program at one of Defendant's schools because of a diagnosis of an emotional disability with a secondary classification of a learning disability. (Psychological Report at 1, Ex. C to Mem. of Law in Supp. of Def.'s Mot. to Dismiss.) In particular, W.S. was said to have problems with “over activity, impulsiveness, and distractibility and in social interactions with peers”; for example, when interacting with children of W.S.'s own age, peers found W.S. “to be offensive or atypical.” (Id. at 2-3.) Plaintiffs, however, were skeptical that their child's classification as having an emotional disability was accurate. (Id. at 3.)

         To dispute this classification, in September 2016, Plaintiffs filed a due process complaint with the ISBE pursuant to 20 U.S.C. § 1415, which was enacted as part of the Individuals with Disabilities Education Act (hereinafter “IDEA” or “the Act”). (Pl.'s Compl. ¶ 10.) IDEA requires local education authorities, including Defendant, to provide a free appropriate public education (“FAPE”) to eligible children with disabilities specified in the Act. See 20 U.S.C. § 1401(3) (listing covered disabilities). To ensure a child gets a FAPE, parents and school officials are expected to work together to craft an individualized education program (“IEP”) for the student. See Fry v. Napoleon Cmty. Schs., 137 S.Ct. 743, 749 (2017); 20 U.S.C. § 1414(d). Should disputes arise in this process, IDEA sets forth a set of administrative procedures for resolving such conflicts. See 20 U.S.C. § 1415. One such procedure is the due process hearing, conducted by a state educational agency like the ISBE after a parent files a complaint. Id. § 1415(f). Parties may also engage in mediation to resolve a complaint before a formal hearing. Id. § 1415(e). That is what happened with respect to Plaintiffs' September 2016 complaint; Plaintiffs allege that they entered into two agreements with the District. First, Plaintiffs allege that in November 2016, Defendant agreed in writing to permit W.S. to be reevaluated through an independent educational evaluation (“IEE”) to be conducted by Rush University Medical Center. (Pls.' Compl. ¶ 25.) That IEE, Plaintiffs allege, concluded that W.S.'s diagnosis should be changed to mild autism. (Id. ¶ 46.) Second, following W.S.'s new diagnosis, the parties entered into a mediation agreement in May 2017, and Plaintiffs withdrew their complaint. (Id. ¶ 10.)

         The May 2017 mediation agreement provided that the parties would convene a new IEP meeting before the end of the school year, and that Defendant would change W.S.'s classification to autism. (Mediation Agreement ¶ 2, Ex. B to Mem. of Law in Supp. of Def.'s Mot. to Dismiss.) The District also agreed to provide Plaintiffs with a list of private therapeutic day schools that W.S. could attend. (Id. ¶ 1.) But Plaintiffs allege that Defendant breached both of these parts of the agreement. First, Plaintiffs allege that at the IEP meeting on May 22, 2017, they were presented with a psychological “reevaluation” of their child conducted by Dr. Victor Fuller, a psychologist employed by the school district. (Id. ¶ 24.) The District insisted that Plaintiffs sign forms allowing Dr. Fuller's report to be used and discussed at the meeting. (Id. ¶ 48.) Though the mediation agreement called for a change in W.S.'s classification at that IEP meeting, Plaintiffs allege that Defendant refused to make that agreed change until they signed-off on the use of Dr. Fuller's report. (Id. ¶¶ 26, 31-32.) Plaintiffs did not want to provide such consent because they had disagreed with previous reports from Dr. Fuller. (Pls.' Resp. in Opp'n to Def.'s Rule 12(b)(6) Mot. to Dismiss Pls.' Compl. at 4.) Moreover, Plaintiffs allege that Dr. Fuller's report was intended to replace the IEE conducted by Rush University. (Pls.' Compl. ¶ 48.) However, like the IHO (Order Granting Dist.'s Mot. to Dismiss Parents' Due Process Compl. at 5, Ex. D to Mem. of Law in Supp. of Def.'s Mot. to Dismiss), the court reads the report as being based only on the IEE's results. Indeed, the report concluded that the IEE was “appropriate” and provided “an accurate description of [W.S.'s] academic and behavioral functioning.” (Psychological Report at 1, 3.) It was not until August 9, 2017-three months after the school year had ended-that W.S.'s classification was changed, and that change occurred, according to Plaintiffs, only after they got lawyers involved, resulting in unnecessary delay and expense. (Pls.' Compl. ¶¶ 31-32.) With respect to the list of schools the District was expected to provide, Plaintiffs contend the schools listed were inappropriate for a child with a mild autism diagnosis like W.S. (Id. ¶ 18.) Instead, the list included “schools for minors who had been expelled or suffered severe psychiatric disorders.” (Id.) Consequently, Plaintiffs had to pay for additional legal assistance to find an appropriate placement for their child. (Id. ¶ 19.)

         Plaintiffs also take issue with how that May 22, 2017 IEP meeting was conducted. They assert that District employees would not confirm that the Rush University IEE had been included in W.S.'s educational records and refused to permit Plaintiffs to provide statements disputing certain information in their child's records. (Id. ¶ 39.) Plaintiffs claim that District employees instructed a notetaker at the meeting to disregard their statements so they would not appear on the record. (Id. ¶ 40.) They state, further, that District employees interrupted them at the meeting, interfering with their ability to advocate for their child. (Id. ¶ 42.) Ultimately, because Plaintiffs refused to sign-off on Dr. Fuller's report, the District ended the meeting without changing W.S.'s classification or otherwise making progress toward a new IEP. (Id. ¶ 42.)

         It was these alleged shortcomings in the process that led Plaintiffs to file a new due process complaint on May 17, 2018, with the ISBE. (Id. ¶ 13.) According to the IHO, Plaintiffs identified eight separate issues in their due process complaint:

The parent's May 17th complaint alleges that the district: 1) violated a November 2016 agreement between the parties that the district would provide an independent educational evaluation (IEE) at public expense by allowing the district psychologist to “enter the matter” after the IEE had been completed; 2) conducted its own evaluation of the student after the IEE without the parents' consent; 3) evaluated the student more than once in the prior school year without parental agreement; 4) breached the mediation agreement by not changing the student's eligibility classification from emotional disturbance to autism as agreed to during the May 22, 2017 IEP meeting; 5) did not respond to the parents' question “whether or not compensatory education is still provided to students who are forbidden to attend class due to disciplinary action”; 6) interrupted the parents during the May 22nd IEP meeting and thereby interfered with the parents' ability to advocate for the student; 7) failed to provide an appropriate list of possible therapeutic schools for the student's placement for the 2017-2018 school year; and, 8) changed the student's IDEA eligibility in August 2017, not on May 26, 2017 as the district asserts.

(Order Granting District's Mot. to Dismiss Parents' Due Process Compl. at 1-2.) The IHO granted Defendant's motion to dismiss this complaint, however, concluding that the complaint did not adequately allege breach of the November 2016 agreement; that Dr. Fuller's report was not a new evaluation that required parental consent under IDEA, see 20 U.S.C. § 1414(c)(3), but was merely a review of the Rush University IEE;[1] that the IHO had no authority to enforce the mediation agreement or to order the district to respond to the parents' question in allegation 5; and that the parents had not alleged denial of a FAPE, which is required for the IHO to provide relief under IDEA. (Id. at 5-8.)

         Plaintiffs filed a two-count complaint in the Circuit Court of Cook County on January 18, 2019. Count I states a breach of contract claim for Defendant's alleged violation of certain terms of the May 2017 mediation agreement, while Count II appeals the IHO's dismissal of their due process complaint. (Pls.' Compl. ¶ 1.) Defendant removed the case to this court and has moved to dismiss both counts.


         Subject Matter Jurisdiction

         Plaintiffs initially filed this suit in the Circuit Court of Cook County, but Defendant removed the case to federal court, invoking federal question jurisdiction pursuant to 28 U.S.C. § 1331. The court expressed concern about this issue early on, but is now satisfied that it has jurisdiction. A defendant is permitted to remove an action from state court to federal court if the suit could have been initiated in federal court. 28 U.S.C. § 1441(a). As the removing defendant, the School District has the burden of establishing that federal jurisdiction is proper. Dancel v. Groupon, Inc., __ F.3d __, 2019 WL 5057669, at *2 (7th Cir. Oct. 9, 2019). A federal court has jurisdiction under § 1331 only if “a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law.” Empire HealthChoice Assur., Inc. v. McVeigh, 547 U.S. 677, 690 (2006) (quoting Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Tr. for S. Cal., 463 U.S. 1, 27- 28 ...

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