|RL 49| John m. by christine m. and michael m. v board of education of evanston township high school district no. 202

Special Ed Connection Case Report48 IDELR 177 applies to all special education services that a student107 LRP 53843 receives from a district. The court concluded that the terms of the IEP, and not the services provided to the JOHN M., by his parents and next student, govern the scope of a stay-put order. "Even iffriends, CHRISTINE M., and MICHAEL M., Plaintiffs-Appellees, v. BOARD OF a school has provided a particular service in the past, EDUCATION OF EVANSTON it need not be provided in a stay-put situation if it wasTOWNSHIP HIGH SCHOOL DISTRICT not within the governing IEP," U.S. Circuit Judge 202, EVANSTON TOWNSHIP HIGH Kenneth F. Ripple wrote. In most cases, the 7th SCHOOL DISTRICT 202, and Allan Circuit observed, District Courts will not need to go ALSON, Defendants-Appellants beyond the four corners of the IEP to decide which services are covered by the stay-put umbrella. If an U.S. Court of Appeals, Seventh Circuit IEP does not provide clear guidance, however, 06-3274 District Courts can consider extrinsic evidence to 06-3738 determine whether the IEP team regarded a particular September 17, 2007 methodology as being essential to the studentsRelated Index Numbers program.173.020 Other Methodologies Full Text265.005 Contents of IEP Appearances:390.027 Stay-Put RIPPLE, Circuit Judge. John M. ("John"), byJudge / Administrative Officer and through his parents and next friends, Christine M.KENNETH F. RIPPLE and Michael M., filed this action seeking relief underJudge / Administrative Officer the Individuals with Disabilities in Education ActDANIEL A. MANION ("IDEA"), as amended by the Individuals with Disabilities in Education Improvement ActJudge / Administrative Officer ("IDEIA"). He alleged that Evanston Township HighANN CLAIRE WILLIAMS School District 202, its Board of Education and itsAppeals from the United States District Court for the Superintendent (collectively "the School District")Northern District of Illinois, Eastern Division. No. 05 had denied John a free, appropriate public educationC 6720--James F. Holderman, Chief Judge. ("FAPE") as required by the legislation. In responseSee related decisions reported at 46 IDELR 95 and 46 to Johns motion for enforcement of the statutesIDELR 218 "stay-put" provision, which requires generally that aCase Summary child remain in the same educational placement pending any proceedings, see 20 U.S.C. # 1415(j), the An Illinois districts obligation to continue a district court entered a preliminary injunction.16-year-old students co-teaching services while hisFAPE dispute is pending will turn on whether those For the reasons set forth in this opinion, we haveservices were implicitly included in the students concluded that the injunction cannot stand in itseighth-grade IEP. Determining that the IDEAs present form because it addresses matters beyond thestay-put provision does not apply to services provided stay-put provision and does not apply the correctoutside of an IEP, the 7th Circuit reversed the District standards when it does address the stay-put provision.Courts grant of a stay-put injunction and remanded Accordingly, we reverse the judgment of the districtthe case for further proceedings. The 7th Circuit court and remand the case for further proceedingsrejected the notion that the IDEAs stay-put provision consistent with this opinion.1Copyright # 2007 LRP Publications 1

Special Ed Connection Case Report I proposed IEP fulfilled the School Districts statutory responsibility to their son, they requested an Background administrative hearing. The hearing officer A determined that the IEP complied with statutory John is a 16 year-old sophomore in high school requirements. He also concluded that ETHS hadwho has Downs Syndrome. He is enrolled in the complied fully with the requirements of the stay-putSchool District as a student at Evanston Township placement.3 John then filed an action in the districtHigh School ("ETHS"), a public school that receives court seeking review of the hearing officersfederal funding and that is subject, therefore, to the determination. While this action was pending, Johnrequirements of the IDEA and the IDEIA. Before filed a motion for a preliminary injunction to enforcebeginning his high school career at ETHS, John had the stay-put placement and a motion to supplementattended Haven Middle School, District 65 ("Haven"). the administrative record and present additionalStudents from Haven normally transition to ETHS to evidence.4continue their education. B While John was a student at Haven, he pursued In his motion for a preliminary injunction, Johnhis middle school education under the terms of an sought to maintain the status quo, the May 2004Individualized Education Program ("IEP"). This plan, middle school IEP, while the litigation over theoften referred to in this opinion as the "May 2004 proposed high school IEP was under consideration byIEP," had been formulated in May 2004. While at the district court.Haven, John had received a service that the parties Although ostensibly ruling on the stay-putrefer to as "co-teaching." The phrase "co-teaching" request, the district court addressed extensively thedid not appear in the May 2004 IEP. merits of the proposed high school IEP and In Spring 2005, Johns parents and determined that the School District, as a practicalrepresentatives of ETHS met to formulate an IEP for matter, offered only two options to John: (1) aJohns coming freshman year at ETHS.2 mainstream class without a co-teacher or (2)Representatives from Haven also attended the first placement in a separate special education classroom.two sessions of these meetings. During this process, The district court then concluded that the SchoolETHS stated that it would not be able to provide the District essentially had defaulted John into the specialsame sort of co-teaching services that Haven had education class because his disability prevented himprovided to John during his middle school education. from participating in the mainstream classes. TheInstead, ETHS proposed to afford John 215 minutes district court held that this situation was a violation ofper week of special education services. The proposed the statute because it denied John an individualETHS IEP also provided that Johns special education assessment. The district court, therefore, vacated theteacher would observe him in his general education hearing officers decision to the extent that it wasclasses of English, History, Algebra and Biology for inconsistent with the district courts determination that43 to 86 additional minutes per week. ETHS IEP also the proposed high school IEP did not offer John aprovided for various speech therapy services, social FAPE. The district court then entered a preliminarywork services, physical therapy and occupational injunction that required the School District to providetherapy. It did not provide, however, for a "Circle of John with an education based on its proposed highFriends" type social and speech therapy that John had school IEP with additional features specified by thereceived at Haven and that his parents believed was court.5very beneficial to him during his time there. The School District then filed a motion to stay Because Johns parents did not believe that theCopyright # 2007 LRP Publications 2

Special Ed Connection Case Reportthe district courts judgment pending appeal. See Fed. district court planned to address, in its considerationR. Civ. P. 62(c). The district court granted the motion of that motion, the underlying merits. Consequently,in part and denied it in part. The district court agreed the School District did not have an adequatewith the School District that the part of its order that opportunity to submit evidence with respect to therequired the plaintiffs and defendants to work appropriateness of the proposed high school IEP. Thetogether to create a new IEP crossed the line from School District simply was not given an adequateenforcement of the stay-put placement to a opportunity to defend itself on the merits.merits-based preliminary injunction. It therefore Accordingly, we must conclude that it was error forstayed subsection 3 of its order, but denied the stay the district court to amend sua sponte the IEP and towith respect to the remainder of the order. vacate the hearing officers decision. II Our determination is simply an application of the general rule that sua sponte judgments are generally Discussion disfavored. See Southern Illinois Riverboat Casino A Cruises, Inc. v. Triangle Insulation & Sheet Metal John first submits that the district court erred Co., 302 F.3d 667, 677-78 (7th Cir. 2002). At awhen, while ruling on his motion for a preliminary minimum, sua sponte judgments are proper only wheninjunction to enforce the statutes stay-put provision, the litigants have proper notice that the district courtit vacated, sua sponte, the hearing officers decision is contemplating entering such a judgment and have aon the merits. fair opportunity to submit evidence prior to the entry of such a judgment. Sims-Madison v. Inland After John appealed the merits of the hearing Paperboard & Packaging, Inc., 379 F.3d 445, 449officers decision to the district court, he filed a (7th Cir. 2004).motion for a preliminary injunction to enforce thestay-put provision of the statute. In ruling on Johns Bmotion for preliminary injunction on the stay-put We now must examine whether the district courtplacement, the district court, sua sponte, vacated the erred when it held that co-teaching was required asdecision of the hearing officer and ordered the part of Johns stay-put placement.implementation of a regimen that employed the In enacting the stay-put provision, Congressproposed high school IEP as its base and added other intended "to strip schools of the unilateral authorityrequirements, including a co-teaching services they had traditionally employed to exclude disabledcomponent. The School District submits that the students ... from school." Honig v. Doe, 484 U.S. 305,district court exceeded the bounds of the motion and, 323 (1988) (emphasis in original). The statutesby addressing the underlying merits, deprived the stay-put provision requires that a child remain in "theSchool District of the right to be heard. same educational placement pending the outcome of The School District is correct. The motion for a any proceedings brought pursuant to section 1415,preliminary injunction to enforce the stay-put unless the parents and the school district otherwiseprovision had not placed the merits of the hearing agree." Bd. of Educ. of Cmty. High Sch. Dist. No. 218officers decision before the district court. In asking v. Illinois State Bd. of Educ., 103 F.3d 545, 548 (7thfor preliminary injunctive relief, John sought to Cir. 1996). The term "educational placement is notenforce only the stay-put placement provision of the statutorily defined, so that identifying a change in thisstatute while he litigated, in the district court, the placement is something of an inexact science." Id.correctness of the hearing officers decision. Upon the Indeed, we have admitted to a hesitancy to establishfiling of the motion for a preliminary injunction, the in any definitive and rigid way the meaning ofSchool District simply was not on notice that theCopyright # 2007 LRP Publications 3

Special Ed Connection Case Report"educational placement." Rather, we have seen Island School District, 337 F.3d 1115 (9th Cir. 2003)wisdom in, and therefore have adopted, the (superseded by statute on other grounds), the courtfact-driven approach employed by our sister circuits. spoke directly to the situation before us -- theId. at 549. In Board of Education of Community High progression of a child from one level of education toSchool District No. 218 v. Illinois State Board of another. When a child progresses from preschool toEducation, 103 F.3d 545 (7th Cir. 1996), we elementary school, from elementary school to middlerecognized that within the term there must be "enough school or from middle school to high school, theroom to encompass [the childs] experience." Id. We "status quo no longer exists." Id. at 1133. Under theserecognized that the educational status quo for a circumstances, the obligation of the new district is to"growing, learning" young person often makes rigid provide educational services that approximate theadherence to particular educational methodologies "an students old IEP as closely as possible. Id. at 1134.impossibility." Id. Under these circumstances, respect We believe that these cases recognize the needfor the purpose of the stay-put provision requires that for some degree of flexibility in interpreting the lastthe former IEP be read at a level of generality that agreed-upon IEP in a stay-put situation. In complyingfocuses on the childs "educational needs and goals." with the stay-put provision, we must interpretId. "educational placement" to incorporate enough As we pointed out in High School District No. flexibility to "encompass [the childs] experience."218, our colleagues in the Second Circuit have High Sch. Dist. No. 218, 103 F.3d at 549. A childsinterpreted "educational placement" along the same interim educational regime must produce as closely aslines. They have described it to refer to "the general possible the overall educational experience enjoyededucational program in which a child who is correctly by the child under his previous IEP. To achieve thatidentified as handicapped is enrolled, rather than mere result, we must recognize that educationalvariations in the program itself." Concerned Parents methodologies, appropriate and even necessary in one& Citizens for the Continuing Educ. at Malcolm X educational environment, are not always effective in(PS 79) v. New York City Bd. of Educ., 629 F.2d 751, another time and place in serving a childs continuing754 (2d Cir. 1980). In a similar vein, the court noted educational needs and goals.that, the regulations implementing the IDEA also Nevertheless, when asked to approve aninterpret the term "placement" to mean "only the alteration in educational methodology in a stay-putgeneral program of education." Id. By contrast, the order, we must give careful attention to the purpose ofjudges likened a change in "educational placement" to the stay-put provision. The recognized and definedinvolve moving a child from a "special class in a special needs of the child and the educational goalsregular school to a special school." Id. A more rigid originally set by the parents and by professionalinterpretation of "educational placement," the court educators must be respected. Protestations thatpointed out, would impede the school boards ability educational methodologies proven to be helpful to theto make "even minor discretionary changes within the child in the past are now impossible must beeducational programs provided for its students." Id. at evaluated with a critical eye to ensure that755.6 motivations other than those compatible with the This perspective is shared as well by our statute, such as bureaucratic inertia, are not drivingcolleagues in the Ninth Circuit. They have stated, in the decision. Suggestions for methodological changeJohnson ex rel. Johnson v. Special Education Hearing that would dilute the statutes policy ofOffice, 287 F.3d 1176 (9th Cir. 2002), that all "mainstreaming" disabled children to the "maximum"educational placement" requires is "comparable extent appropriate," 20 U.S.C. # 1412(a)(5)(A),placement." Id. at 1182. In Ms. S. ex rel. G. Vashon deserve particular scrutiny. See Casey K. ex rel.Copyright # 2007 LRP Publications 4

Special Ed Connection Case ReportNorman K. v. St. Anne Comty. High Sch. Dist. No. the four corners of the IEP). A methodology not302, 400 F.3d 508, 512 (7th Cir. 2005). The "removal mentioned in the plan may well indicate that thoseof children with disabilities from the regular who formulated the plan did not consider thateducational environment occurs only when the nature particular methodology a necessary component to theor the severity of the disability of a child is such that plan -- although they well may have intended thateducation in regular classes with the use of some comparable methodology be implemented. Seesupplementary aid and service cannot be achieved Erickson v. Albuquerque Pub. Schs., 199 F.3d 1116,satisfactorily." Bd. of Educ. v. Rowley, 458 U.S. 176, 1121-22 (10th Cir. 1999) (holding that, when IEP202 n.24 (1982) (internal citations and quotation simply required occupational therapy, the substitutionmarks omitted). of one type of occupational therapy for another was permissible). Here, the term "co-teaching" is not C mentioned in the May 2004 IEP itself. Therefore, the On remand, the district court must revisit the district court ought to determine, after evaluating therequest for interim injunctive relief under the stay-put entire May 2004 IEP as a totality, whether the partiesprovision. Its starting point must be the May 2004 regarded this methodology as an essential part of theIEP that governed Johns middle school education. plan or as simply one of several ways by which theThis document, as the last educational plan agreed plan could be implemented. As we noted earlier, inupon by the parents and the professional educators, is answering this question, the court will need to explorethe appropriate basis for stay-put relief. Generally, the precisely how the plan was implemented at Haven.terms of this IEP should be enforced, without The exact method of implementation is not apparentexception, as the stay-put relief. on this record and the accounts of the parties are not In examining the May 2004 IEP, the district compatible.court must note with particular care the precise Knowledge of precisely how this feature of therequirements of the IEP. Even if a school has plan was implemented at Haven is important forprovided a particular service in the past, it need not be another reason. In examining the manner in which theprovided in a stay-put situation if it was not within the plan was implemented in the middle schoolgoverning IEP. See Cordrey v. Eukert, 917 F.2d 1460, environment, the district court will be able to gauge1468 (6th Cir. 1990); Gregory K. v. Longview Sch. far more accurately the School Districts claim thatDist., 811 F.2d 1307, 1313-14 (9th Cir. 1987). If the implementation of that methodology in theparties dispute what the IEP requires, as they do here institutional setting of a high school is not possible.with respect to co-teaching, the court must evaluate As we have said earlier, if the district court finds thatthe IEP as a whole and determine whether such a the methodology employed in the middle school ismethodology is required under the terms of the IEP. actually part of the May 2004 IEP, the court mustUnder usual circumstances, the court should find it require very compelling evidence from the Schoolunnecessary to go beyond the four corners of the District before permitting a deviation from the coursedocument in order to make that determination. already set. However, the court might determineHowever, vagueness in the instrument with respect to nevertheless that the high school setting makes thehow its goals are to be achieved may require that the use of such an approach counterproductive in terms ofcourt turn to extrinsic evidence to determine the intent the goals of the IEP or impossible to implement. Theof those who formulated the plan. See Doe v. court then may allow the parties to propose anDefendant I, 898 F.2d 1186, 1190 (6th Cir. 1990) alternative. This alternative should be as close as(noting that it would "exalt form over substance" to possible to the approach used in the middle school butignore information known to parents and nevertheless compatible with the goals of the IEP andadministrators simply because it was not contained inCopyright # 2007 LRP Publications 5

Special Ed Connection Case Reportthe institutional demands of the high school setting. district court is reversed and the case is remanded forOn the other hand, if the court determines that the proceedings consistent with this opinion. The Schoolmethodology is not part of the IEP but simply a District may recover its costs on this appeal.methodology chosen by the middle school educational REVERSED and REMANDEDprofessionals, that particular methodology need not beincluded in the stay-put order. The district court Appendixshould then permit the high school authorities to Plaintiff John M.s motion of March 28, 2006 tochoose the approach that they believe will be most supplement to administrative record and presenteffective in the implementation of the IEP. additional evidence (Dkt. No. 21) is granted. John M.s motion of March 28, 2006 for preliminary The district court must address another matter. injunction and to enforce the stay put placement (Dkt.The district court took the view that the School No. 19) is granted to extent that this court orders theDistrict had waived the argument that it would be vacating of the hearing officers decision.impossible to implement, in the new high schoolenvironment, the concept of co-teaching. The district Until the parties can agree to a proper IEP forcourt found that the School District had waived any John in compliance with the IDEA, the court ordersimpossibility argument when it agreed, before the the following preliminary injunction:hearing officer, to implement the May 2004 IEP. We (1) ETHS is ordered to provide education to Johndo not believe that the record can support that finding. that it previously promised to provide under the priorIn its briefs before the district court, the School IEP as proposed by ETHS, if so desired by JohnsDistrict did state explicitly that it would be parents. The prior IEP shall serve as a baseline with"impossible" to provide co-teaching services to John the following additions as set forth below in sectiondue to the differing course and curriculum (2).arrangements at the high school. It is also true that the (2) ETHS is ordered to provide the followingSchool District agreed to implement Johns May 2004 additions to the baseline IEP, if Johns parents somiddle school IEP during the stay-put period. We desire:believe, however, that given the School Districts (a) ETHS shall create a proposed schedule forexplicit statement about co-teaching services, which John that will be used should John be placed inare not mentioned explicitly in the document, we regular non-special education classes including themust interpret its willingness to implement the May classes of English, History, Mathematics and Science.2004 middle school IEP as a statement that it is ETHS shall also designate responsible teachers inwilling to read the IEP as the School District these regular education classes who shallmaintains that it should be read -- without the communicate their lesson plans and other relevantco-teaching service. The School District had agreed to material to Johns special education teachers so thatimplement the four corners of the last agreed-upon John shall receive as much regular class education asIEP as required under the IDEA, but also had possible until the issue of Johns placement intomentioned explicitly the impossibility of providing regular classes can be determined by the parties andco-teaching services, a service it maintains is not part this court. Johns special education teachers shallof the May 2004 middle school IEP. Under these attempt to utilize, where possible, all availablecircumstances, we cannot sustain a finding that the textbooks, equipment and other applicable materialsSchool District has waived any impossibility that are used in the instruction of non-disabledargument. students in regular classes. ETHS shall provide Johns Conclusion parents written copies of the materials provided by the For the foregoing reasons, the judgment of the regular class teachers to the special education teacherCopyright # 2007 LRP Publications 6

Special Ed Connection Case Reportand the lesson plans used by the special education ETHS, including teachers, therapists, computers,teachers. These written reports to Johns parents shall textbooks and equipment. ETHS must state thebe made on weekly basis unless another schedule is number of minutes that each resource will be devotedagreed to by ETHS and Johns parents. to Johns education. (b) ETHS shall provide John with a minimum of (c) The parties positions on a "Circle of Friends"800 minutes per week of special education instruction type program for John.in compliance with the instructions in subsection (a) (d) Processes in place to integrate John, to theunless a lesser amount of time is otherwise agreed to extent desired by John and within the limitations ofby Johns parents. the circumstances, into the community of both (c) ETHS shall provide John with 120 minutes disabled and non-disabled students at ETHS.per week of social work services and 120 minutes per (4) ETHS and Johns parents shall confer in goodweek of speech therapy unless a lesser amount of time faith as to the exchange of information and otheris otherwise agreed to by Johns parents. The social discovery as to Johns progress. ETHS shall make itsworker and speech therapist shall strive to work with educators, staff and other appropriate materialJohn in social settings and otherwise attempt to available to Johns parents, and Johns parentsintegrate John into the non-disabled community in representatives, during the discussion of the proposedETHS in the spirit of the "Circle of Friends" program. IEP. Additionally, Johns parents, their attorney, and (d) ETHS shall allow John to participate in any their proposed expert Dr. Schwarz, shall be permittedETHS activity, intramural sports, club or to observe Johns treatment at ETHS.extra-curricular program available to non-disabled The parties are to complete their proposed IEPstudents unless ETHS can articulate a valid, by no later than September 15, 2006. The proposednon-discriminatory reasoning for Johns exclusion. IEP and supporting evidence shall be submitted to this (e) ETHS is ordered to place John in a regular court, with accompanying briefs by no later thanphysical education class if Johns parents so desire September 29, 2006 Cross responses are due byunless ETHS as able to articulate a valid, October 13, 2006. This case is set for a report onnon-discriminatory reason for Johns exclusion. status on October 24, 2006 at 9:00 a.m. (f) ETHS cannot exclude John from any R.34 at 11-14.resource, such as the resource room, that is available 1 At the invitation of the court, the United Statesto any other ETHS student, both disabled and Secretary of Education submitted a brief as amicusnon-disabled. curiae. We express our appreciation to the Secretary (3) ETHS is ordered to meet with Johns parents, for her helpful assistance.and any other individual that Johns parents designate, 2 The IDEA requires a cooperative process into work in good faith to create a new IEP for John in which a family and a school agree upon a childsorder to determine the free, appropriate public educational placement. See, e.g., Patricia P. v. Bd. ofeducation in the least restrictive environment for John Educ. of Oak Park, 203 F.3d 462, 469 (7th Cir. 2000)at ETHS. This IEP shall be based on an individual ("[A] school district is ... bound by the IDEAsassessment of John in accordance with the preference for a cooperative placement process: thisrequirements of IDEA. The IEP shall determine, at a Court will look harshly upon any partys failure tominimum: reasonably cooperate with anothers diligent execution (a) Johns placement in either special education of their rights and obligations under the IDEA.").or regular education classes. Indeed, the IDEA requires an "IEP Team," composed (b) Resources to be made available to John at of the parents of the child with the disability, notCopyright # 2007 LRP Publications 7

Special Ed Connection Case Reportfewer than one of the childs regular educationteachers if the child is or may be participating in theregular educational environment, not fewer than onespecial education teacher, a representative of the localeducational agency, an individual qualified tointerpret the instructional implications of evaluationresults, others who, at the discretion of the parents orthe agency, may be determined to have specialexpertise and, whenever appropriate, the child with adisability. 20 U.S.C. # 1414(d). 3 John has appealed to the district court thehearing officers conclusions as to whether the SchoolDistricts proposed IEP affords John a free,appropriate public education ("FAPE"). That appeal isstill pending before the district court. 4 The motion to supplement the administrativerecord is not before us on this appeal. 5 The district courts order is set out as anappendix to this decision. 6 Similarly, in Casey K. ex rel. Norman K. v. St.Anne Community High School Dist. No. 302, 400F.3d 508 (7th Cir. 2005), we held that removing achild from a private school and enrolling him in apublic school with "completely different teachers,curriculum, and classmates" did not comply with theautomatic statutory injunction established by thestay-put provision. Id. at 513.Statutes Cited20 USC 1415(j)20 USC 1414(d)20 USC 1412(a)(5)(A)Cases Cited203 F.3d 462484 U.S. 305103 F.3d 545629 F.2d 751287 F.3d 1176337 F.3d 1115400 F.3d 508458 U.S. 176917 F.2d 1460811 F.2d 1307898 F.2d 1186199 F.3d 1116Copyright # 2007 LRP Publications 8

|RL 49| John m. by christine m. and michael m. v board of education of evanston township high school district no. 202

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|RL 49| John m. by christine m. and michael m. v board of education of evanston township high school district no. 202 Document Transcript