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Illinois Special Education Law: Evaluating IEP Assessments, Challenging IEP Denials, and Determining Proper Placement

Illinois Special Education Law: Evaluating IEP Assessments, Challenging IEP Denials, and Determining Proper Placement

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  • 1.     Illinois Special Education Law:   Evaluating IEP Assessments,   Challenging IEP Denials, and   Determining Proper Placement              July 25, 2012                Neal E. Takiff, Esq.   Brooke R. Whitted, Esq.   Whitted, Cleary + Takiff, LLC 3000 Dundee Road, Suite 303   Northbrook, Illinois 60062   Phone: (847) 564-8662 Fax: (847) 564-8419                      
  • 2. Table of Contents Page No.1. Special Education Overview 1 a. Special Education in a Nutshell 3 b. School Time Lines 9 c. Rowley Memorandum 21II. Practical Application of the Special Education Law 33 a. Eligibility and Special Education Assessments 35 i. Special Education: Eligibility and Definitions 37 ii. Memo to Directors of Special Education re: RTI Process 41 Cannot be Used to Delay/Deny an Evaluation for Eligibility Under the IDEA iii. Form Letter Requesting a Case Study Evaluation 45 iv. ISBE Domain Review Form [Informed Consent] 47 v. ISBE Initial Evaluation Step by Step 51 vi. Additional Procedures for Students Suspected of or 59 Having a Specific Learning Disability vii. Age 22 Requirement 61 viii. Failure is Not a Requirement 63 ix. Due Process Hearing Request Form 65 x. OCR Complaint 67 b. Special Education Placement 75 i. Beth B. v. Van Clay 77 ii. Memo: L.R. v THSD 211 with Opinion 83 iii. Continuum of Placement Options 137 iv. Observation of Programs by Parents and Experts 139III. School Discipline 143 a. Suspension, Expulsion and Discipline Under the IDEA 145 b. School Discipline: Suspension and Expulsions of Non-Disabled 155 Students c. Special Education Discipline: New Case Law from Courts and 167 Administrative Hearings 2012
  • 3.        Special Education     Overview                  1
  • 4. SPECIAL EDUCATION IN A NUTSHELL: A BRIEF GUIDE TO THEPROCESS AND PROCEDURES Whitted, Cleary & Takiff LLC 3000 Dundee Road, Suite 303 Northbrook, IL 60062 (847) 564-8662 (847) 564-8419 (Facsimile) 12 3
  • 5. I. Referral for Initial Case Study Evaluation (“CSE”) Made A. A referral for a Case Study Evaluation may be made for any child suspected of having a disability. Every school district must develop and publicize procedures by which an evaluation may be made (“child find” procedures”) B. Referrals may be made by “any concerned person”, however, referrals are typically made by school district personnel, parents, other persons having primary care and custody of the child, other professional persons having knowledge of the childs problems, the Illinois State Board of Education ("ISBE"), and even the child them self. C. Parent is defined as a natural, adoptive, or foster parent; A guardian (but not the State if the child is a ward of the State.); An individual acting in the place of a natural or adoptive parent (including a grandparent, stepparent, or other relative) with whom the child lives), or an individual who is legally responsible for the child’s welfare; or an individual assigned by the State Board of Education as a “surrogate” parent. D. Parental safeguards notification should always be provided to parents upon initial referral.II. District Decides Whether to Conduct CSE A. The school district must decide whether or not to conduct the CSE. They may use screening data and conduct preliminary procedures to assist in making this determination. If they decide not to conduct a CSE, the district must notify the parents, in writing, and explain their reasoning. A parent may request a due process hearing to contest the district’s refusal to conduct the CSE. B. Parental consent for initial CSE required prior to CSE. The date consent is obtained starts the 60 day timeline in Illinois. The district may seek a due process hearing to override a parent’s lack of consent. The new federal statute reauthorizing the IDEA has changed this timeline from a previous 60 school days in Illinois to 60 calendar days. It appears that Illinois is likely to adopt the 60 calendar day timeline, therefore most Districts are already applying it, even though Illinois regulations have not been finalized. C. "Consent" is defined to acknowledge that parents can revoke consent, but such revocation is not retroactive. Revocation of consent can be done either verbally or in writing. If done verbally, the district must confirm the request in writing by letter to the parents within five days. 13 4
  • 6. D. If a child is a ward of the State and is not residing with the child’s parent, the school district shall make “reasonable efforts” to obtain the informed consent from the parent of the child for an initial evaluation. However, the district is not required to obtain consent from the parent if the district cannot discover the parent’s whereabouts, following “reasonable efforts,” the parent’s rights have been terminated or “the parental right to make educational decisions has been subrogated by a judge and given to an individual appointed by the judge to represent the child.”III. CSE Conducted and Conference Held To Determine Eligibility A. The 2000 IEP Regulations state that the “IEP Team” determines both which relevant “domains” must be evaluated and the actual assessments to be utilized. Existing data must be considered. All IEP meeting must be scheduled at a mutually convenient time for both the school and the parents. B. The CSE and CSE review conference to determine eligibility must be completed within 60 days from the date of referral. C. The "date of referral" in order to start the 60-day timeline is the date on which the parent(s) sign consent for the CSE. D. According to current Illinois regulations, when a student is referred for an evaluation with less than 60 days left in the school year, eligibility must be determined and, if necessary, an IEP developed prior to the first day of the next school year. This requirement may be deleted when the new Illinois regulations are implemented. E. Parent shall be provided with a copy of the team’s report at the conclusion of the IEP meeting. A separate written statement may be provided by a team participant who wishes to be on record as disagreeing with the conclusions of the team. Within 10 days of the conference, parents shall receive written notice from the district as to the eligibility determination reached for the child.IV. Initial Special Education Eligibility Determined A. Eligibility is based on the federal and state definitions of a disability and is determined by a majority of team members. The existence of a DSM disability will not necessarily mean the child has a special education disability, unless the disability impacts the child’s education.V. Initial IEP Developed by IEP Team A. If the child is eligible for special education service under a disability category, then an IEP is drafted. The IDEA requires that specific individuals be present at the IEP team including the parent, a regular education teacher, a special education teacher an individual from the school district capable of 14 5
  • 7. making decisions and committing district resources. B. An IEP must be developed within 30 days of the eligibility determination. However, the eligibility determination and an IEP must be in place within 60 school days of the date of referral.VI. Initial Special Education Placement Decision Made A. Placement decision must be based on measurable IEP goals. The 2004 IDEA reauthorization no longer requires districts to draft objectives with goals, except for severe/profound students. District may choose to draft objectives with goals. B. Parental consent for initial placement must be obtained by the school district prior to placement. According to the new IDEA reauthorized statute, School Districts may not file for a due process hearing to override a parents’ lack of consent for an initial special education placement. Note: the new Illinois consent rules promulgated in 2003 are unclear whether a District may file for a due process hearing if a parent did provide consent for an initial placement and then revoked consent. C. The school district must wait 10 days before placement may occur, although parents may waive this waiting period. In no case should placement occur later than the beginning of the next school semester.VII. Annual Review of IEP A. A review of the IEP must be held at least annually. B. 10-day parental notification required for all IEP meetings, or a record of reasonable attempts to notify parent required by the district prior to any IEP meeting. Parents may waive 10-day notice. C. A parent may request an IEP meeting at anytime (within reason) if desired. The district has 10 days after receipt of such a request to either agree to convene the meeting or notify the parents in writing of its refusal.VIII. Three-Year Reevaluation A. A reevaluation of the student may be conducted at anytime, but must be conducted at least every three years. B. Parental consent for all reevaluations must be obtained. If a school district is unable to obtain parental consent for a reevaluation, it must file for a due process hearing in order to obtain consent. C. The IEP team is now authorized to review the child’s existing record in order to determine whether any new evaluations are unnecessary or whether 15 6
  • 8. the team may rely on existing data. D. The domain determinations completed for initial evaluations must also be done for reevaluations.IX. Transfer Students A. Same state: A transfer student enrolling in a school district with an IEP must be enrolled immediately. The new district must provide services comparable to those in the existing IEP, in consultation with the parents, until the new district adopts the existing IEP, or develops and adopts a new IEP. Presumably, the new IEP should be based on the student’s previous needs and evaluations. B. Out-of-state: As with in-sate transfers, transfer student enrolling in a school district with an out-of-state IEP must be enrolled immediately. The new district must provide services comparable to those in the existing IEP, in consultation with the parents, unless the new district conducts its own evaluation of the student and develops a new IEP.X. Miscellaneous A. The IDEA requires prior written notice to parents whenever a district proposes to change, or refuses to change, a child’s evaluation, identification, placement or the provision of the free and appropriate public education (“FAPE”) program. B. Parents are entitled to request a due process hearing whenever they have a complaint regarding the evaluation, identification, placement, or the provision of FAPE of the child. C. The new IDEA establishes a two-year statute of limitations for filing a due process hearing following the date the parent or district knew or should have known of a violation. N:Whitted & Cleary PresentationsUIC (Summer Classes)Special Ed in a Nutshell .doc 16 7
  • 9. CONSOLIDATED GUIDE SCHOOL LAW TIMELINES The following are timelines that you are likely to encounter as you navigate through the Illinois School Code, the Illinois School Student RecordsAct, the federal Individuals with Disabilities Education Act, and their implementing regulations. These timelines are for your reference, but werecommend that you look at the entire section of the indicated statutory provisions or administrative regulation for more detailed information.Please note some timeframes are based strictly on Illinois law and are not applicable to other states. Items in ‘red’ are defined in the end notes. The following are common cites to statues and regulations found this document:  Illinois School Code – 105 ILCS 5/__  Illinois School Student Records Act – 105 ILCS 10/___  Illinois Administrative Code, Title 23 (Education), Part 226 (Special Education) – 23 IAC 226.___  U.S. Code of Federal Regulations, Title 34 (Education), Part 300 (Education of Students with Disabilities) – 34 CFR § 300.___  U.S. Code, Title 20 (Education), Chapter 13 (Education of Individuals with Disabilities) – 20 USC § 1400 et seq.STUDENT RECORDS STUDENT RECORDS Required Action TIMELINE Law/Regulation Notes Request for Transfer Student’s Records: Receiving school by the end of the 23 IAC 226.50(a)(2)(B) district shall request a transfer student’s school records from next business day sending school or district after date of enrollment School District Request: A school district must honor the within 105 ILCS 10/8.1(b); This timeline also applies request for a transfer student’s school record from a receiving 10 calendar days 105 ILCS 5/2-3.13a to requests made by DCFS. school district of receipt of request Parent/Student Request: A school district must honor a no later than 105 ILCS 10/5(c) Requests must be parent’s, student’s, or designated representative’s request to 15 school days after received by the official records custodian1. inspect and copy records within a reasonable time receipt of request 1 9
  • 10. SPECIAL EDUCATION EVALUATIONS & IEPS Required Action TIMELINE Law/Regulation Notes Request for Evaluation: School district’s response to parents’ within 23 IAC 226.110(c)(3) School is required to request for a case study evaluation or referral for evaluation and 14 school days provide written notice of their decision notification of decision: of receipt of request  If NO – must provide explanation2 of decision not to evaluate  If YES – must convene domain meeting, identify necessary assessments, inform parents of those assessments, and provide informed consent on a “domain review form3” consent to conduct assessments Case Study Evaluation (CSE): Upon receiving parental within 23 IAC 226.110(d) If fewer than 60 school informed consent for the evaluation, a school district must: 60 school days days remain in the school year, then prior to the  Conduct the initial evaluation of receiving parental first day of the next  Convene an IEP meeting to determine special education consent school year eligibility Eligibility Determination: Provide written notice to parents within 23 IAC 226.110(f) Parents are entitled to 4 concerning the eligibility determination reached with respect to 10 school days receive copies of any evaluation reports upon the child after the meeting request Initial IEP: Complete an initial IEP based on eligibility within 23 IAC 226.110(j) The initial IEP meeting is determination 30 calendar days often merged with the eligibility determination after the date of meeting. eligibility determination Copy of IEP: School district shall provide a copy of the IEP at the conclusion of 23 IAC 226.110(f) There is no need for an report to the parents the IEP meeting affirmative request for a copy of the IEP. Developed/Revised IEP: When IEP has been developed or Immediately 23 IAC 226.220(a) No request is required. revised, the district shall provide notice to the parents IEP Implementation: A newly developed or revised IEP shall no later than 23 IAC 226.220(a) Parent may waive the 10- be implemented by the school district 10 calendar days day notice period before the IEP is implemented. 23 after parental notice IAC 226.520. 2 10
  • 11. Notice of School District’s Proposal: A school district is at least 23 IAC 226.520required to provide written notice to a parent prior to a 10 calendar daysproposal or refusal to initiate or change the identification, prior to theevaluation or educational placement of a child, or the provision of implementation of theFAPE to a child change in IEPRequest for IEP Meeting: A child’s parent or teacher may at any time 23 IAC 226.220(b)request an IEP meetingResponse to Request for IEP Meeting: School district must within 23 IAC 226.220(b) A school district mustrespond to a parent’s or educational provider’s request for an IEP 10 calendar days respond in writing of its agreement ormeeting after request is made disagreement, and in conformance with the requirements of 34 C.F.R § 300.5035.Notice to Parent of IEP Meeting: School district must at least 23 IAC 226.530 A school district isprovide a written notice of an IEP meeting to parents 10 calendar days responsible for taking necessary action to prior to meeting facilitate the parent’s participation in and understand of the IEP meetings’ proceedings (including interpreter services)6New IEP for Transfer Student: School district must provide within 23 IAC 226.50(a)(1)(B) Until the new IEP iswritten notice to a parent of a transfer student regarding a 10 calendar days developed, the district shall implement servicesproposed IEP meeting date of enrollment comparable to those described in the IEP from the sending school districtAdopting Sending District’s IEP for Transfer Student: within 23 IAC 226.50(a)(2)(C); If records by sendingSchool district must provide written notice of an IEP meeting to a 10 calendar days See 105 ILCS 5/2-3.13a district are received before time elapses, thenparent of a transfer student after school records sending school district’s should have been IEP may be adopted. received During this time the receiving school district shall be served in the setting that it believes will meet the child’s needs. 3 11
  • 12. Parent’s Request for IEE: A parent may make a written at any time 105 ILCS 5/14-8.02(b);request for an independent educational evaluation (IEE) at the after the evaluation by 34 CFR § 300.502(b)public’s expense if the parent disagrees with an evaluation the public agency 23 IAC 226.180obtained by the public agencyResponse to Request for IEE: School district may respond to within 105 ILCS 5/14-8.02(b); These are the onlya request for an IEE by either ensuring that an IEE is provided or 5 calendar days 34 CFR § 300.502(b) options available.filing a due process complaint to request a hearing to show that of receipt of writtenits evaluation is appropriate requestCompletion of IEE: Based upon a written request for an IEE by within 105 ILCS 5/14-8.02(b) This time period may bethe parents that a district agrees, or decision of a hearing officer if 30 calendar days extended if either the parent or school districtthe school district files for due process, an IEE must be of either the request offer reasonable groundscompleted at the public expense or IHO decision to show the 30-day time period should be extended.IEP Meeting to Discuss Results of an IEE: School district within 23 IAC 226.180(d)shall provide written notice convening the IEP Team’s meeting to 10 calendar daysconsider the results of an IEE at public expense of receipt of IEEIEP Meeting to Discuss Results of a Private Evaluation: within 23 IAC 226.180(d)Upon a parent’s request, the school district shall send notice of 10 calendar daysan IEP meeting to consider the results of a private evaluation of receipt of requestNotice of Unilateral Placements: Parents intending to at least 34 CFR § 300.148.(d) This protects the parent’sunilaterally place their child in a private program must provide the 10 business days right to retroactive reimbursement under theschool with written notice of their intent to remove their child (including any holidays Burlington7 and Carter8and place him/her in a program chosen by them that occur on a cases. business day) prior to the removal of the childRevocation of Parental Consent: Parent may revoke consent within 23 IAC 226.540(a) A parent’s revocation offor any action by the school district orally or in writing; if done 5 calendar days consent is effective immediately. 23 IACorally, school district must put a parent’s oral revocation of of revocation 226.540(b).consent in writing and provide a copy to the parent A district is not liable for no longer providing special education or related services to a child whose parent has revoked consent9. 4 12
  • 13. Early Intervention Program to School District: For a child on the child’s 23 IAC 226.260; Where child’s birthday is transitioning from an early intervention program into a special 3rd Birthday 34 CFR § 300.101 during the summer, the IEP Team shall determine education program of a school district, school district shall ensure when services will begin. that either an IEP or Individualized Family Service Plan (IFSP) is in effect Term of Special Education Eligibility: An eligible student until the 23 IAC 226.50(c)(1); must continue to receive special education services from his day before his/her 34 CFR § 300.101 public school district 22nd BirthdayDUE PROCESS DUE PROCESS HEARING REQUESTS & PROCEDURES Required Action TIMELINE Law/Regulation Notes Request for Due Process Hearing: A parent, guardian or not more than 34 CFR § 300.507(a); A due process hearing public agency may file a due process complaint regarding a 2 years 105 ILCS 5/14-8.02a(f) request must be made in writing to the violation related to the identification, evaluation or educational after the parent or superintendent of the placement of a child with a disability public agency knew or school district where the should have known of student resides. the violation Notification to ISBE of Due Process Request: School within 34 CFR § 300.508(a)(2); district Superintendent shall forward the due process request to 5 calendar days 105 ILCS 5/14-8.02a(f); the Illinois State Board of Education (ISBE) in Springfield, IL by of receipt of request 23 IAC 226.615; certified mail or other means that provides evidence of delivery Appointment of an Impartial Hearing Officer (IHO): ISBE within 23 IAC 226.635; This same timeline applies shall appoint a due process hearing officer, and notify the hearing 3 calendar days 105 ILCS 5/14-8.02a(f- when ISBE receives a request for a substitution of officer of his/her appointment of receipt of 5) an IHO (see below) or due process request receives notice that an IHO is ineligible to serve. Request for IHO Substitution: A request for a substitution of no later than 23 IAC 226.635; A party is permitted one the hearing officer shall be submitted to the Due Process 5 calendar days 105 ILCS 5/14-8.02a(f- substitution of an IHO as a matter of right. Coordinator at ISBE via letter or facsimile of notice of the IHO’s 5) appointment 5 13
  • 14. School District Response to Due Process Hearing within 34 CFR § 300.508(e)(1);Request: Unless a school district has previously provided prior 10 calendar days 105 ILCS 5/14-8.02a(g-written notice with regard to the subject matter of the hearing of receipt of the 5)request, a school district must provide a written response to the hearing requestparent(s) or student10Parent/Student Response to Due Process Hearing within 105 ILCS 5/14-8.02a(g- A parent/student responseRequest: When a hearing request is initiated by a school district, 10 calendar days 10) does not need to be in writing if the parent/studenta parent or student shall provide a written response that of receipt of the is illiterate or has a disabilityspecifically addresses the issues raised in the hearing request hearing request that prevents him/her from providing a written response. The response may also be in the parent/student’s native language.Sufficiency of Complaint: A party may challenge the sufficiency within 34 CFR § 300.508(d)(1); If the challenge is upheld,of the other party’s due process hearing request in writing to the 15 calendar days 105 ILCS 5/14-8.02a(g- the requesting party may file an amended complaintIHO of receipt of the 15) with the consent of the hearing request other party or IHO.Determination on Sufficiency Challenge: The IHO shall within 34 CFR § 300.508(d)(2);issue his/her determination in writing on the challenge to the 5 calendar days 105 ILCS 5/14-8.02a(g-hearing request’s sufficiency to both parties of receipt of the 15) challengeResolution Session: School district shall convene a resolution within 34 CFR § 300.510(a)(1); The resolution session maymeeting with the parent(s) and relevant members of the IEP team 15 calendar days 105 ILCS 5/14-8.02a(g- be waived by written agreement of the parties; orwho have specific knowledge of the facts contained in the hearing of receipt of the 20) in the alternative, by therequest for the purpose of resolving the problem parent/student’s parties’ written agreement hearing request or to utilize mediation instead. initiating the hearing request If not waived, both parties must cooperate in the scheduling of the resolution session or risk dismissal of the hearing request, or granting of all relief set forth in the hearing request, as appropriate. 6 14
  • 15. Resolution Period: Where the issues are not satisfactorily within 34 CFR § 300.510(b); This timeline is routinelyresolved, the due process hearing may occur after the resolution 30 calendar days 105 ILCS 5/14-8.02a(g- extended.period, which is of receipt of the 20) hearing requestRevocation of Resolution Agreement: If the resolution within 34 CFR § 300.510(e)session results in an executed written settlement agreement of 3 business daysthe parties, a party may void the agreement of executionPrehearing Conference: An IHO must convene a prehearing at least 105 ILCS 5/14-8.02a(g- The IHO must provideconference with both parties to aid in the fair and expeditious 14 calendar days 40) notice of the prehearing conference to the parties atconduct of the hearing Before the scheduled least 7 calendar days in date of the hearing advance.Due Process Hearing: A hearing must be conducted and a within 34 CFR § 300.515(a);decision must be made by the IHO and delivered to the parties 45 calendar days 105 ILCS 5/14-8.02a(h) after the expiration of the 30-day resolution period or the adjusted time period11IHO’s Decision: The IHO shall issue a written decision12, within 105 ILCS 5/14-8.02a(h); If necessary, the decisionincluding findings of fact and conclusions of law and send the 10 calendar days 23 IAC 226.670 must be translated into the parent/student’s nativedecision by certified mail to the parents or student (if the student after the conclusion of language. 23 IAC 226.67013requests the hearing), the school district, the director of special the hearingeducation, legal representatives of the parties, and the StateBoard of EducationRequest for Clarification: A party may request in writing from within 105 ILCS 5/14-8.02a(h); A copy of the request foran IHO for clarification of his/her due process hearing decision, 5 calendar days 23 IAC 226.670 clarification must be sent to all parties. The requestspecifying the portions of the decision for which clarification is of receipt of the must specify which portionssought and mailing a copy of the request to all parties of record decision of the decision requireand to the State Board of Education clarification, and why.Response to Request for Clarification: The IHO shall issue a within 105 ILCS 5/14-8.02a(h)clarification of the specified portion of the decision or issue a 10 calendar dayspartial or full denial of the request in writing and mail copies to all of receipt of thethe parties to whom the decision was mailed request 7 15
  • 16. Appeal - Civil Action: A party aggrieved by the findings and within 34 CFR § 300.516(a); decisions of the IHO in a due process hearing, may appeal the 120 calendar days 105 ILCS 5/14-8.02a(i) decision in a court of competent jurisdiction after a copy of the IHO’s decision is mailed to the partySCHOOL DISCIPLINE REGULAR EDUCATION STUDENTS Required Action TIMELINE Law/Regulation Notes Suspension: A non-disabled student may be suspended for a for 105 ILCS 5/10-22.6(b) The suspension may be serious act of misconduct 10 consecutive longer if for gross disobedience or school days misconduct on a school or less bus for safety reasons. (per suspension) There is no upward limit on the cumulative number of day a non-disabled student may be suspended during the school year. Notice of Suspension: A parent/guardian must receive a notice Immediately 105 ILCS 5/10-22.6(b) This notice may be oral or of the suspension which includes the reason for the suspension, written. the length of the suspension, and a notice of the parent/guardian’s right to review the school’s decision Review of Suspension Decision: A school board or its upon the request of 105 ILCS 5/10-22.6(b) If a hearing officer is appointed hearing officer shall review the action of the the parent/guardian appointed, he/she shall report to the school board superintendent, principal, assistant principal or dean of students to a written summary of the suspend, at a meeting where the parent/guardian may appear to evidence heard at the discuss the suspension with the board or its hearing officer meeting. Upon receiving the written report of the hearing officer or after conducting the meeting, the school board may take action as it finds appropriate. 8 16
  • 17. Expulsion: A non-disabled student may be removed from school from more than 105 ILCS 5/10-22.6(a); A student may be expelledfor gross disobedience or misconduct a period of time 10 school days 105 ILCS 5/10-22.6(d) only after the parent/guardian has been to a period of time requested to appear at a not to exceed meeting with the school 2 school years14 board or hearing officer. Notice of the hearing must be sent by registered or certified mail, and must state the time, place, and purposes of the hearing. SPECIAL EDUCATION STUDENTS Required Action TIMELINE Law/Regulation NotesSuspension: A special education student may be suspended for up to 34 CFR § 300.530(a); The same noticewithout the need for a manifestation determination review (MDR), 10 school days 20 U.S.C. § 1415(k); requirements apply as stated above for non-consent of parents, or provision of special education services in the school year 23 IAC 226.400 disabled students. A suspension of a disabled student for in excess of 10 school days (consecutive or non-consecutive) may be considered a “change of placement”.Manifestation Determination Review (MDR): If a disabled within 23 IAC 226.400; If the conduct was a resultstudent is expelled or there is a “change of placement”, the school 10 school days 34 CFR § 300.530 of the student’s disability or due to the failure of thedistrict shall convene a MDR meeting to determine whether the of the decision to school district to implementconduct in question was a caused by or had a substantial expel or “change the the IEP, a functionalrelationship to the student’s disability; and whether the conduct placement” of the behavioral assessmentwas the result of the school district’s failure to implement the IEP student (“FBA)” must be conducted and a behavioral intervention plan (BIP) must be implemented or revised if one already exists. 9 17
  • 18. Interim Alternative Educational Setting (IAES): A disabled for up to 34 CFR § 300.530(g) student may be placed in an IAES, without regard to the result of 45 school days an MDR, if he/she while at school, on school premises, or at a school function: (1) carries or possesses a weapon15; (2) knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance16, or (3) inflicts serious bodily injury17 upon another person IEP Meeting for an IAES: School district must convene an IEP within 34 CFR § 300.530(g) meeting after placing a student in an IAES 10 business days of the placement decision Expedited Due Process Hearing Requests: A due process within 20 U.S.C. § 1415(k)(1)- hearing must take place upon a parent/guardian’s request for a due 20 school days (4); process hearing to challenge any decision regarding the of the request 105 ILCS 5/14-8.02b manifestation determination, placement resulting from an MDR, or alternative 45-day placement, OR upon a school district’s request for a hearing to place a student in an alternative 45-day placement Expedited Due Process Decision: An IHO must issue a within 20 U.S.C. § 1415(k)(1) decision in a hearing regarding the above challenges 10 school days & (2) of the hearing1 Official Records Custodian - “(a) Each school shall designate an official records custodian who is responsible for the maintenance, care and security of all school student records,whether or not such records are in his personal custody or control. (b) The official records custodian shall take all reasonable measures to prevent unauthorized access to ordissemination of school student records.” 105 ILCS 10/4(a)-(b).2 Pursuant to 23 IAC 226.110, if the school district determines not to conduct an evaluation it must provide written notice to the parents in accordance with 34 CFR §300.503(b). Section 300.503(b) states as follows: “The noticed required . . . must include – (1) A description of the action proposed or refused by the agency; (2) An explanationof why the agency proposes or refuses to take the action; (3) A description of each evaluation procedure, assessment, record, or report the agency used as a basis for theproposed or refused action; (4) A statement that the parents of a child with a disability have protection under the procedural safeguards of this part and, if this notice is not aninitial referral for evaluation, the means by which a copy of a description of the procedural safeguards can be obtained; (5) Sources for parents to contact to obtain assistance inunderstanding the provisions of this part; (6) A description of other options that the IEP Team considered and the reasons why those options were rejected; and (7) Adescription of other factors that are relevant to the agency’s proposal or refusal. 34 CFR § 300.503(b). 10 18
  • 19. 3 The 60-school day time frame does not commence until the parents have signed the domain review form, providing consent to conduct the indicated assessments. 23 IAC226.110(c)(3); 34 CFR § 300.305.4 Pursuant to Section 300.306, “In interpreting evaluation data for the purpose of determining if a child is a child with a disability under [34 CFR §300.8], and the educationalneeds of the child, each public agency must – (i) Draw upon information from a variety of source, including aptitude and achievement tests, parent input, and teacherrecommendations, as well as information about the child’s physical condition, social or cultural background, and adaptive behavior; and (ii) Ensure that information obtained fromall of these sources is documented and carefully considered.” 34 CFR § 300.306(c). Further “Upon completion of the administration of assessment and other evaluationmeasures - . . . [t]he public agency provides a copy of the evaluation report and the documentation of determination of eligibility at no cost to the parent.” 34 CFR §300.306(a)(2).5 Section 300.503 states as follows: “(a) Notice. Written notice that meets the requirements of paragraph (b) of this section must be given to the parents of a child with adisability a reasonable time before the public agency – (1) Proposes to initiate or change the identification, evaluation, or educational placement of the child or the provision ofFAPE to the child; or (2) Refuses to initiate or change the identification, evaluation, or education placement of the child or the provision of FAPE to the child. (b) Content ofnotice. The notice required under paragraph (a) of this section must include – (1) A description of the action proposed or refused by the agency; (2) An explanation of why theagency proposes or refuses to take the action; (3) A description of each evaluation procedure, assessment, record, or report the agency used as a basis for the proposed orrefused action; (4) A statement that the parents of a child with a disability have protection under the procedural safeguards of this part and, if this notice is not an initial referralfor evaluation, the means by which a copy of a description of the procedural safeguards can be obtained; (5) Sources for parents to contact to obtain assistance in understandingthe provisions of this part; (6) A description of other options that the IEP Team considered and the reasons why those options were rejected; and (7) A description of otherfactors that are relevant to the agency’s proposal or refusal. (c) Notice in understandable language. (1) The notice required under paragraph (a) of this section must be – (i)Written in language understandable to the general public; and (ii) Provided in the native language of the parent or other mode of communication used by the parent, unless it isclearly not feasible to do so. (2) If the native language or other mode of communication of the parent is not a written language, the public agency must take steps to ensure – (i)That the notice is translated orally or by other means to the parent in his or her native language or other mode of communication; (ii) That the parent understands the contentof the notice; and (iii) That there is written evidence that the requirements in paragraphs (c)(2)(i) and (ii) of this section have been met.” 34 CFR § 300.503.6 Section 226.530 states as follows: “With respect to parents participation in meetings, school districts shall conform to the requirements of 34 CFR 300.322 and 300.501. Forpurposes of 34 CFR 300.322(a)(1), "notifying parents of the meeting early enough to ensure that they will have an opportunity to attend" means the district shall provide writtennotification no later than ten days prior to the proposed date of the meeting. In addition, the district shall take whatever action is necessary to facilitate the parentsunderstanding of and participation in the proceedings at a meeting, including arranging for and covering the expense of an interpreter for parents whose nativelanguage is other than English or for an interpreter licensed pursuant to the Interpreter for the Deaf Licensure Act of 2007 [225 ILCS 443] for parents who aredeaf.” 23 IAC 226.530 (Emphasis added.)7 School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985).8 Florence County School District Four v. Carter, 510 U.S. 7 (1993).9 If a parent fails to respond or refuses to consent to the initial provision of special education services for his/her child (34 CFR § 300.300(b)(3)), or revokes consent to servicesat any time subsequent to the initial provision of special education and related services (34 CFR § 300.300(b)(4)), the district may not continue to provide such services to thechild and will not be considered in violation of the requirement to make FAPE available to the child. 34 CFR § 300.300(b)(3)-(4).10 A student may file and respond to a due process hearing request if at least 18 years of age or emancipated. See 105 ILCS 14-8.02a et seq. 11 19
  • 20. 11 The 45-day timeline for the due process hearing may start after one of the following events: (1) both parties agree in writing to waive the resolution session; (2) after eitherthe mediation or resolution meeting starts but before the end of the 30-day period, parties agree in writing that no agreement is possible; or (3) both parties agree in writing tocontinue the medication at the end of the 30-day resolution period, but later, a party withdraws from the mediation process. 34 CFR § 300.510(c).12 Pursuant to the Illinois School Code, “[t]he decision shall specify the education and related services that shall be provided to the student in accordance with the student’sneeds and the timeline for which the school district shall submit evidence to the State Board of Education to demonstrate compliance with the hearing officer’s decision in theevent that the decision orders the school district to undertake corrective action.”13 “The bases and timelines for decisions of hearing officers shall conform to the requirements of 34 CFR 300.513 and Section 14-8.02a(h) of the School Code [105 ILCS 5/14-8.02a(h)]. In addition, the hearing officers decision shall be sent by certified mail to the parties enumerated in Section 14-8.02a(h) of the School Code. The [hearing] decisionshall be translated into the native language of the parents if their primary language is other than English .” 23 IAC 226.670 (Emphasis added.)14 “A student who is determined to have brought one of the following objects to school, any school-sponsored activity or event, or any activity or event that bears a reasonablerelationship to school shall be expelled for a period of not less than one year: (1) A firearm. For the purposes of this Section, ‘firearm’ means any gun, rifle, shotgun, or weaponas defined by Section 921 of Title 18 of the United States Code, firearm as defined in Section 1.1 of the Firearm Owners Identification Card Act (430 ILCS 65/1.1), or firearm asdefined by Section 24-1 of the Criminal Code of 1961. The expulsion period under this subdivision (1) may be modified by the superintendent, and the superintendent’sdetermination may be modified by the board on a case-by-case basis. (2) A knife, brass knuckles or other knuckle weapon regardless of its composition, a billy club, or any otherobject if used or attempted to be used to cause bodily harm, including “look alikes” of any firearm as defined in subdivision (1) of this subsection (d). The expulsion requirementunder this subdivision (2) may be modified by the superintendent, and the superintendent’s determination may be modified by the board on a case-by-case basis.” 105 ILCS 5/10-22.6(d)(1)-(2).15 Pursuant to Section 300.530(i)(4), “weapon” for the purposes of the IDEA has the meaning given to the term “dangerous weapon” under paragraph (2) of the first subsection(g) of Section 930 of title 18, United States Code. 34 CFR § 300.530(i)(4). Pursuant to that section, “[t]he term ‘dangerous weapon’ means a weapon, device, instrumentmaterial, or substance, animate or inanimate, that is used for or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocketknife with a blade less than 2½ inches in length.” 18 U.S.C. § 930(g)(2).16 Pursuant to Section 300.530(i)(1), “controlled substance” means “a drug or other substance identified under schedules I, II, III, IV, or V in section 202(c) of the ControlledSubstances Act (21 U.S.C. 812(c)).” 34 CFR § 300.530(i)(1). Further, this same section defines “illegal drug” as “a controlled substance; but does not include a controlledsubstance that is legally possessed or used under the supervision of a licensed health-care professional or that is legally possessed or used under any other authority under thatAct or under any other provision of Federal law.” 34 CFR § 300.530(i)(2). Please note, that the above definition does not include alcohol.17 Section 300.530(i)(4) refers to the definition of “serious bodily injury” under 18 U.S.C. § 1365. That statute states, “the term “serious bodily injury’ means bodily injury whichinvolves – (A) a substantial risk of death; (B) extreme physical pain; (C) protracted and obvious disfigurement; or (D) protracted loss or impairment of the function of a bodilymember organ, or mental facility.” 18 U.S.C. § 1365(h)(3).N:General OfficeMemorandumsSchool Law Timelines.doc 12 20
  • 21. THE ROWLEY CASE: WHAT DOES IT REALLY MEAN? Prepared by: Whitted, Cleary & Takiff LLC 3000 W. Dundee Road, Suite 303 Northbrook, IL 60062 (847) 564-8662 (847) 564-8419 FAX Email: 21
  • 22. THE ROWLEY CASE: WHAT DOES IT REALLY MEAN? By Brooke R. Whitted Whitted & Cleary, LLC INTRODUCTION The case of Rowley v. Hendrick Hudson School District1 was the U.S. SupremeCourts first interpretation of what was then called the Education for All HandicappedChildren Act (now the Individuals with Disabilities Education Act, “IDEA”). Thisimportant decision is required reading for anyone working in special education. The caseconcerned a hearing impaired girl named Amy Rowley, who was a student at the FurnaceWoods School in Hendrick Hudson Central School District, Peekskill, N.Y. Amy hadminimal residual hearing and was an excellent lip reader. During the year before shebegan attending school, a meeting between her parents and the school administratorresulted in a decision to place her in a regular kindergarten class. Several administratorsprepared for Amys arrival by attending a course in sign language interpretation, and ateletype machine was installed in the principals office to facilitate communication withher parents, who were also deaf. At the end of the trial placement it was determined thatAmy should remain in the kindergarten class, but that she should be provided with an FMtransmitter. Amy successfully completed her kindergarten year. As required by the Act, an IEP was prepared for Amy during the fall of her firstgrade year. The IEP provided that Amy should be educated in a regular classroom,should continue to use the FM device, and should receive instruction from a tutor for thedeaf for one hour each day and from a speech therapist for three hours each week. TheRowleys agreed with parts of the IEP, but insisted that Amy also be provided a qualifiedsign language interpreter in all her academic classes in lieu of the assistance proposed inother parts of the IEP. Such an interpreter had been placed in Amys kindergarten classfor a two-week experimental period, but it was reported that Amy had no need for thisservice. This conclusion was reached after consultation with the school districts“Committee on the Handicapped,” which had received expert evidence from Amysparents on the importance of an interpreter. The Committee also received informationfrom Amys teacher and other persons familiar with her academic and social progress,and visited a class for the deaf. When their request for an interpreter was denied, theRowleys demanded and received an administrative hearing. After receiving evidencefrom both sides, the hearing officer agreed with the administrators determination that aninterpreter was not necessary because "Amy was achieving educationally, academically,and socially" without such assistance. The examiners decision was affirmed on appealby the New York Commissioner of Education. The Rowleys then brought an action inthe United State District Court for the Southern District of New York, claiming that the1 Board of Education of the Hendrick Hudson Central School District, et. al. v. Amy Rowley, et. al., 458 U.S. 176, 102S.Ct.3034 (1982). 2 22
  • 23. administrators denial of the sign language interpreter constituted a denial of the "freeappropriate public education" guaranteed by the Act. (Excerpt from the courts owndescription at 458 US 176 at 183) The holdings in the Rowley case have become the standard of analysis for everysubsequent special education case arising in the Federal and State courts.Consequently, a working knowledge of the fundamental analysis developed by theSupreme Court justices is important when evaluating any special education matter. Inthis paper, this analysis will be examined in detail. Any practitioner or educator lookingat a special education file should keep this analysis in mind at all times. Since all othercourts do this as well, the questions asked by the Rowley court are instructive even today,well over twenty years later.The Rowley Questions: These are best presented in the form originally developed by the Supreme Court: Therefore, a courts inquiry in suits brought under §1415(e)(2) is twofold. First, has the State complied with the procedures set forth in the Act? [FN27] And second, is the individualized education program developed through the Acts procedures reasonably calculated to enable the child to receive educational benefits? [FN28] If these requirements are met, the State has complied with the obligations imposed by Congress and the courts can require no more. (458 US 176, 204) (Emphasis added.) As the analysis goes, if the school district has not complied with the Federallymandated procedures, and if the violation resulted in some form of significant harm tothe student, all educational decision making from the point of the violation forward issuspect. What this means is that judges will be more likely to step in and substitute theirjudgment for that of the educators, given a significant procedural violation. If, on theother hand, the school district has complied with all of the procedures in the Act, then theanalysis requires asking the second "Rowley question." The Supreme Court, however, first examines the priorities assigned by Congressto procedural requirements: But although we find that this grant of authority is broader than claimed by petitioners, we think the fact that it is found in §1415, which is entitled "Procedural Safeguards," is not without significance. When the elaborate and highly specific procedural safeguards embodied in §1415 are contrasted with the general and somewhat imprecise 3 23
  • 24. substantive admonitions contained in the Act, we think that the importance Congress attached to these procedural safeguards cannot be gainsaid. It seems to us no exaggeration to say that Congress placed every bit as much emphasis upon compliance with procedures giving parents and guardians a large measure of participation at every stage of the administrative process, see, e.g. §§1415(a)-(d), as it did upon the measurement of the resulting IEP against a substantive standard. We think that the congressional emphasis upon full participation of concerned parties throughout the development of the IEP, as well as the requirements that state and local plans be submitted to the Secretary for approval, demonstrates the legislative conviction that adequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP. (458 US 176, 204; emphasis added.)"Significant" Violations: A recurrent problem is whether a procedural violation under Rowley is"significant." In 2002, a district was held (at 38 IDELR 85) to have violated "several"procedural requirements of the IDEA but even so, the student received all of his IEPservices. The court therefore concluded that there was no resulting denial of a freeappropriate public education under IDEA. The procedural violation, therefore, mustactually result in some harm to the student before it becomes "significant."Adverse Educational Impact: Another recurrent problem is the issue of a student passing from grade to gradeand still remaining eligible for services. Amy Rowley herself got good grades, and thecourt held that she was not entitled to a sign language interpreter as requested by herparents. This did not mean that she was ineligible for other special educationservices, as she was still hearing impaired and met the definitional requirements. In fact,the court itself in Rowley said: We do not attempt today to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act. Because in this case we are presented with a handicapped child who is receiving substantial specialized instruction and related services, and who is performing above average in the regular classrooms of a public school system, we confine 4 24
  • 25. our analysis to this situation. (458 US 176 at 202; emphasis added.) In the Cornwall case (17 EHLR 10239/1991) the court held that there was asignificant impact on educational performance even though the child had not failed anycourses. In Yankton (93 F. 3rd 1369, 8th Cir. 1996), a cerebral palsy child was gettinghigh grades but was still entitled to specially designed instruction and related services.In Schoenfield (8th Cir. 1998) the court held that academic performance at or above agelevel does not necessarily mean a child is not "disabled," or that the education satisfiedthe standard of appropriateness under Rowley. It can be seen, then, that while Rowley holds that passage from grade to grade isone important indicator of whether an educational benefit has been conferred, it is not thesole criterion but should be "in the mix" of other considerations. It is a fatal mistake fora school district to declare that a child is ineligible solely because he or she isreceiving passing grades.Educational Benefits: The courts own language serves to explain this prong of the Rowley test with thegreatest skill: Implicit in the congressional purpose of providing access to a "free appropriate public education" is the requirement that the education to which access is provided be sufficient to confer some educational benefit upon the handicapped child. It would do little good for Congress to spend millions of dollars in providing access to a public education only to have the handicapped child receive no benefit from education. The statutory definition of "free appropriate public education," in addition to requiring the States to provide each child with "specially designed instruction," expressly requires the provision of "such…supportive services…as may be required to assist a handicapped child to benefit from special education." §1401(17). We therefore conclude that the "basic floor of opportunity" provided by the Act consists of access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child. [FN23] (458 US 176 at 200, emphasis added). And this analysis is extended to the provision of a FAPE for eligible children: When the language of the Act and its legislative history are considered together, the requirements imposed by 5 25
  • 26. Congress become tolerably clear. Insofar as a State is required to provide a handicapped child with a "free appropriate public education," we hold that it satisfies this requirement by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction. Such instruction and services must be provided at public expense, must meet the States educational standards, must approximate the grade levels used in the States regular education, and must comport with the childs IEP. In addition, the IEP, and therefore the personalized instruction, should be formulated in accordance with the requirements of the Act and, if the child is being educated in the regular classrooms of the public education system, should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade. [FN26] (458 US 176 at 202, emphasis added.) The question of how to deal with students who are not capable of obtaining passinggrades under any circumstances is not clearly answered by the Supreme Court in Rowley.However, the footnotes make reference to the required full continuum of alternativesettings, and the need for some students to be placed in settings other than the mainstream.It is clear, especially in light of decisional case law subsequent to Rowley, that when achild is placed in a more restrictive setting, the decision must be driven by the unique needof the student and not by administrative convenience or other factors (see, e.g., Beth B. v.Mark VanClay and School District #65 (Federal Appellate Case Decided March 5, 2002)[2002 WL 341017, 36 IDELR 121 (7th Cir.). 6 26
  • 27. Selected Case Footnotes(Emphasis is Added) 25. We do not hold today that every(73 L.Ed.2d 710) handicapped child who is advancing from grade to grade in a regular public school system is automatically receiving a "free appropriate public education." In this case, however, we find Amys academic progress, when considered with the special services and professional consideration accorded by the Furnace Woods School administrators, to be dispositive.But see footnote 23! 28. When the handicapped child is being educated in the regular classrooms of a public(73 L.Ed.2d 712) school system, the achievement of passing marks and advancement from grade to grade will be one important factor in determining educational benefit. See Part III, supra.This note is from the Dissent: 1. The Courts opinion relies heavily on theJustices White, Brennan, and statement, which occurs throughout the legislativeMarshall history, that, at the time of enactment, one million of the roughly eight million handicapped children in the United States were excluded entirely from the public school system and more than half were receiving an inappropriate education. See, e.g., ante, at 189, 195, 196-197, 73 L Ed 2d, at 701, 705, 706. But this statement was often likened to statements urging equal educational opportunity. See, e.g., 121 Cong Rec 19502 (1975) (remarks of Sen. Cranston); id., at 23702 (remarks of Rep. Brademas). That is, Congress wanted not only to bring handicapped children into the schoolhouse, but also to benefit them once they had entered.(Footnote 23) "With proper education services, many would be able to become productive citizens,THIS NOTE devotes substantial contributing to society instead of being forced 7 27
  • 28. space and time to the concept of to remain burdens. Others, through suchself-sufficiency and this should be services, would increase their independence,pointed out to any hearing officer, thus reducing their dependence on society." S.administrator, or attorney who Rep, at 9. See also HR Rep, at 11. Similarly, oneinsists that the opinion stands for of the principal Senate sponsors of the Act statedthe rigid proposition that "any" that "providing appropriate educational servicessatisfactory grade record will do. now means that many of these individuals will beMoreover, the presence of relaxed able to become a contributing part of our society,grading standards (i.e., giving and they will not have to depend on subsistencepassing grades just for trying) does payments from public funds." 121 Cong Recnot assist the pupil in the permanent 19492 (1975) (remarks of Sen. Williams). Seeand long-range development of self- also id., at 25541 (remarks of Rep. Harkin); id., atsufficiency skills. 37024-37025 (remarks of Rep. Brademas); id., at 37027 (remarks of Rep. Gude); id., at 37410 (remarks of Sen. Randolph); id., at 37416 (remarks of Sen. Williams). The desire to provide handicapped children with an attainable degree of personal independence obviously anticipated that state educational programs would confer educational benefits upon such children. But at the same time, the goal of achieving some degrees of self-sufficiency in most cases is a good deal more modest than the potential maximizing goal adopted by the lower courts. Despite its frequent mention, we cannot conclude, as did the dissent in the Court of Appeals, that self-sufficiency was itself the substantive standard, which Congress imposed upon the States. Because many mildly handicapped children will achieve self-sufficiency without state assistance while personal independence for severely handicapped may be an unreachable goal, "self-sufficiency" as a substantive standard is at once an inadequate protection and an overly demanding requirement. We thus view these references in the legislative history as evidence of Congress intention that the services provided handicapped children be educationally beneficial, whatever the nature or severity of their handicap. 8 28
  • 29. (Footnote 21) The use of "appropriate" in the language of the Act, although by no means definitive, suggests thatThe second recognition herein that Congress used the word as much to describe thesome "mainstream" settings, while settings in which handicapped children should beless restrictive, are simply not educated as to prescribe the substantive content orappropriate for the education of supportive services of their education. Forsome handicapped children. Again example, § 1412(5) requires that handicappedin opposition to reflexive LRE and children be educated in classrooms with non-"full inclusion" arguments used by handicapped children "to the maximum extentmanagement attorneys. appropriate." Similarly, § 1401(19) provides that, "whenever appropriate," handicapped children should attend and participate in the meeting at which their IEP is drafted. In addition, the definition of "free appropriate public education" itself states that instruction given handicapped children should be at an "appropriate preschool, elementary, or secondary school" level. § 1401(18)(C). The Acts use of the word "appropriate" thus seems to reflect Congress recognition that some settings simply are not suitable environments for the participation of some handicapped children.73 L.Ed.2d 708 – from the body of We therefore conclude that the "basic floor ofthe opinion: opportunity" provided by the Act consists of access to specialized instruction and relatedThis Note is one of the most services which are individually designed tosignificant parts of the opinion, as it provide educational benefit to the handicappedexplains what the Court IS and IS child. 23NOT deciding. While "self-sufficiency" is not the exclusive 23. This view is supported by the congressionalfactor, it is an important factor in intention, frequently expressed in the legislativedetermining if an educational history that handicapped children be enabled tobenefit has been "conferred." achieve a reasonable degree of self-sufficiency. After referring to statistics showing that many(73 L.Ed.2d 709) handicapped children were excluded from public education, the Senate Report states: "The long range implications of these statistics are that public agencies and taxpayers will spend billions of dollars over the lifetimes of these individuals to maintain such persons as 9 29
  • 30. dependents and in a minimally acceptable lifestyle."The language of "educational 15. The only substantive standard, which can bebenefit." The root of this language implied from these cases, comports with theis not just that the child must standard implicit in the Act. PARC states thatreceive "any" benefit: the benefit each child must receive "access to a free publicmust be "received" within the program of education and training appropriate tocontext of the childs unique needs, his learning capabilities," 334 F. Supp, at 1258not the needs of the agency. The (emphasis added), and that further state action isorigin of the language is explained required when it appears that "the needs of thein this note – as a way of providing mentally retarded child are not being adequatelyhandicapped children with an served," id., at 1266 (emphasis added). Mills alsoinviolable access to educational speaks in terms of "adequate" educational services,services, which provision this court, 348 F Supp, at 878, and sets a realistic standardreads very strictly (see Honig v. of providing some educational services to eachDoe, 484 U.S. 305, 308 (1988)). child when every need cannot be met.(73 L.Ed.2d 704) The inadequacies of the District of Columbia Public School System whether occasioned by insufficient funding or administrative inefficiency, certainly cannot be permitted to bear more heavily on the exceptional or handicapped child than on the normal child." Id., at 876.While the EHA does not mandate 21. In seeking to read more into the Act than itsmaximization of benefits under language or legislative history will permit, thethis decision, note that settled United States focuses upon the word "appropriate,"decisional case law provides that arguing that "the statutory definitions do notstates which choose to grant greater adequately explain what [it means]." Brief forrights than the Federal mandate United States as Amicus Curiae 13. Whateverrequires must do so uniformly – Congress meant by an "appropriate"and the state standard will in such education, it is clear that it did not mean acases prevail. potential maximizing education.(73 L.Ed.2d 706) The term as used in reference to educating the handicapped appears to have originated in the PARC decision, where the District Court required that handicapped children be provided with "education and training appropriate to [their] learning capabilities." 334 F Supp, at 1258. The 10 30
  • 31. word appears again in the Mills decision, the District Court at one point referring to the need for "an appropriate education program," 348 F Supp, at 879, and at another point speaking of a "suitable publicly supported education," id., at 878. Both cases also refer to the need for an "adequate" education. See 334 F Supp, at 1266; 348 F Supp, at 878.Independence and Self Sufficiency: At 20 U.S.C. 1400 (c)5(E)ii, it is indicated that 20 years of research under the oldIDEA has demonstrated that training people through high quality intensive professionaldevelopment ensures that these personnel have the skills to enable children to beprepared to lead productive, independent, adult lives to the maximum extentpossible. This language in the "purposes" clause of Rowley appears to provide apotential argument that the Rowley standard of requiring districts to provide "adequate"services might have been elevated. In addition, at Section 1400(d), under purposes (1)A,one of the purposes of the IDEA is to enable individuals to meet their unique needsand prepare them for employment and independent living. This is reminiscent of thefootnote discussion in the Rowley case. It is clear that one of the purposes of the Act isto prepare students for independence to the extent that their abilities permit.Conclusion: Special educators should take special notice of the Rowley case, as it is still goodlaw and it acts as the blueprint for all cases to follow. The two Rowley questionsemphasizing procedural compliance and the benefits of the IEP should be committed tomemory. Finally, the focus of the decision on what is “appropriate” for special educationstudents should be given special emphasis, especially in light of the social emphasis onso-called “inclusion” in recent years.N:General OfficeMemorandumsThe Rowley Case - What Does it Really Mean (02-04).doc 11 31
  • 32.       Practical Application    of the Special Education Law                    33
  • 33.        Eligibility and Special Education Assessments                      35
  • 34. SPECIAL EDUCATION: ELIGIBILITY AND DEFINITIONS Whitted, Cleary & Takiff LLC 3000 Dundee Road-Suite # 303 Chicago, Illinois 60062 (847) 563-8662 (847) 564-8419 (Facsimile) 17 37
  • 35. SPECIAL EDUCATION: ELIGIBILITY AND DEFINITIONS 23 ILLINOIS ADMINISTRATIVE CODE CH. I, S.226.75 SUBTITLE A SUBCHAPTER f Disability: Any of the following specific conditions: Autism: A developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age three, that adversely affects a child’s educational performance. (A child who manifests the characteristics of autism after age 3 could be diagnosed as having autism if the other criteria of this Section are satisfied.) Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a child’s educational performance is adversely affected primarily because the child has an emotional disturbance. Deaf-Blindness: Concomitant hearing and visual impairments, the combination of which causes such severe communication and other developmental and educational needs that they cannot be accommodated in special education programs solely for children with deafness or children with blindness. Deafness: A hearing impairment that is so severe that the child is impaired in processing linguistic information through hearing, with or without amplification, that adversely affects a child’s educational performance. Domain: An aspect of a child’s functioning or performance that must be considered in the course of designing an evaluation. The domains are health, vision, hearing, social and emotional status, general intelligence, academic performance, communication status, and motor abilities. Eligible: Identified in accordance with this Part as having any of the disabilities defined in this Section and needing special education and related services. Emotional Disturbance: (includes schizophrenia, but does not apply to children who are socially maladjusted, unless it is determined that they have an emotional disturbance): A condition exhibiting one or more of the following characteristics over an extended period of time and to a marked degree that adversely affects a child’s educational performance1: 1Educational Performance: A student’s academic achievement and ability to establish and maintain socialrelationships and to experience a sound emotional development in the school environment. 18 38
  • 36.  An inability to learn that cannot be explained by intellectual, sensory, or health factors;  An inability to build or maintain satisfactory interpersonal relationships with peers and teachers;  Inappropriate types of behavior or feelings under normal circumstances;  A general pervasive mood of anxiety or unhappiness or depression; or  A tendency to develop physical symptoms or fears associated with personal or school problems.Hearing Impairment: An impairment in hearing, whether permanent orfluctuating, that adversely affects a child’s educational performance but that is notincluded under the definition of deafness.Mental Retardation: Significantly subaverage general intellectual functioning,existing concurrently with deficits in adaptive behavior and manifested during thedevelopmental period, that adversely affects a child’s educational performance.Multiple Disabilities: Concomitant impairments (such as mental retardation-blindness, mental retardation-orthopedic impairment, etc.), the combination ofwhich causes such severe educational needs that they cannot be accommodated inspecial education programs solely for one of the impairments (does not includedeaf-blindness).Orthopedic Impairment: A severe orthopedic impairment that adversely affectsa child’s educational performance; includes impairments caused by congenitalanomaly (e.g., clubfoot, absence of some member, etc.), impairments caused bydisease (e.g., poliomyelitis, bone tuberculosis, etc.), and impairments from othercauses (e.g., cerebral palsy, amputations, and fractures or burns that causecontractures).Other Health Impairment: Limited strength, vitality or alertness, including aheightened sensitivity to environmental stimuli, that results in limited alertnesswith respect to the educational environment, that: is due to chronic or acute health problems such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, and sickle cell anemia; and adversely affects a child’s educational performance. 19 39
  • 37. Specific Learning Disability: A disorder in one or more of the basicpsychological processes involved in understanding or in using language, spokenor written, that may manifest itself in an imperfect ability to listen, think, speak,read, write, spell, or do mathematical calculations, including such conditions asperceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, anddevelopmental aphasia. (The term does not include learning problems that areprimarily the result of visual, hearing, or motor disabilities, of mental retardation,of emotional disturbance, or other environmental, cultural, or economicdisadvantage.) [105 ILCS 5/14-1.03(a)]Speech or Language Impairment: A communication disorder, such asstuttering, impaired articulation, a language impairment, or a voice impairment,that adversely affects a child’s educational performance.Traumatic Brain Injury: An acquired injury to the brain caused by an externalphysical force, resulting in total or partial functional disability or psychosocialimpairment, or both, that adversely affects a child’s educational performance. Theterm applies to open or closed head injuries resulting in impairments in one ormore areas, such as cognition; language; memory; attention; reasoning; abstractthinking; judgment; problem-solving; sensory, perceptual, and motor abilities;psychosocial behavior; physical functions; information processing; and speech.The term does not apply to brain injuries that are congenital or degenerative or tobrain injuries induced by birth trauma.Visual Impairment: An impairment in vision that, even with correction,adversely affects a child’s educational performance (includes both partial sightand blindness).N:Whitted, Cleary & Takiff PresentationsUIC (Summer Classes)Special Ed Eligibility and Definitions(Page 102 17-20).doc 20 40
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  • 41. Whitted Cleary & Takiff LLC Form Letter for Requesting a Case Study Evaluation (Insert date)__________________, Superintendent_____________ School DistrictStreet AddressCity, Illinois Zip Re: Child’s name, Age ___, DOB _________Dear Ms./Mr./Dr. (Name of Superintendent): Please consider this a formal request for a case study evaluation, pursuant tothe Individuals with Disabilities Education Act (20 U.S.C. 1414(a), 34 CFR 300.301), theIllinois School Code (105 ILCS 5/14-8.02) and Illinois’ special education regulations (23Ill. Admin Code 226.110). I understand under these provisions that you or a representative from your schooldistrict is now required to contact me within 14 school days of the above date indicatingwhether the case study evaluation will be conducted or denied. If the CSE is denied, youmust notify me in writing of the reasons for the denial. Should a case study evaluation bewarranted, an IEP team is also required to meet within this 14-day time span in order toconduct the Identification of Needed Assessments and to solicit my written consent forthese assessments. I look forward to hearing from you in this regard. Sincerely, (Insert name of parent)cc: School PrincipalN:General OfficeMemorandumsCSE Request Form Letter.doc 45
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  • 45. 15Chapter 3:Referral & EvaluationIn this chapter you will:• learn what “date of referral” means• learn the timelines for the school to make a decision about conducting an evaluation• see what areas or “domains” are included in an evaluation as- sessment• learn how often the district must conduct a reevaluation• get information on independent educational evaluations 51
  • 46. 16 Definitions Definitions A “referral” in the context of special education services is a process asking the school district to evaluate a student to decide if the student qualifies to receive special education services.  A referral can be made either by the school dis- trict (through a teacher or other school personnel involved in the student’s education) or by a parent or guardian.  The referral is a required first step before an evaluation can take place. The “date of referral” is the date of written parental consent for an evaluation.  Screening procedures shall not be consid- ered an evaluation. Within 14 school days after receiving the written request, the district will decide whether to evaluate the child or Tips for Parents not.  If the district determines an evaluation is warranted, Don’t forget to write a let- then the district must provide the parents with the paper- ter to request an evalua- work to provide formal written consent. tion.  Asking for one is not enough!  If the district determines that the evaluation is not neces- sary, it must notify the parent in writing of the decision not Keep a copy of the letter.  If possible, it is best to have to evaluate and the reasons for the decision. someone at the school sign The district must advise the parents of their right to re- and date that the school re- ceived the letter, or to send it quest a due process hearing to challenge its decision. certified mail, return receipt Parents need to submit a request for evaluation to have requested. their child considered to be eligible for special education services.  It is best to put your request in writing. Not all referrals result in an evaluation being conducted. To be eligible to receive special education services, the child must have a disability that impacts educational perfor- mance.  Please see Chapter 5, “Eligibility Categories” for fur- ther information. Requests for evaluation may be made by a parent of a child, an employee of a State educational agency, another State agency, a local school district, or a community ser- vice agency. Educational Rights and Responsibilities: Understanding Special Education in Illinois 52
  • 47. 17 Initial Eligibility: Step by Step Step 1: Request for Evaluation A request for an evaluation is made by the parent to determine the child’s eligibility for special education. 14 school days Step 2: Decision to Proceed At this stage, the district meets withthe parent to determine whetheran evaluation should proceed. If yes, the district needs to determine whatdomains will be evaluated and will request the parent’s consent to do the evaluation. Timeline does not start until parent signs consent Step 3: Consent to EvaluateThe evaluation cannot proceed until the parent has provided informed written consent for the district to begin the evaluation. Timelines for completing the evaluation do not start until consent has been given by the parent. Step 4: Evaluation During a period of up to 60 school days, 60 school days district personnel can take the steps needed (Step 5 must occur to complete the evaluation. If any part of the by the 60th day) evaluation has been written in final form, it may be shared with the parent. Step 5: Eligibility Conference & IEP By the end of the 60th school day, the evaluation team must meet with the parent to decide if the child is eligible for special education. If yes, an IEP team must then meet with the parent to develop the IEP for the student. Initial Placement does not occur until parent signs consent Step 6: Consent for Placement Before the special education services can begin, the parent must provide written informed consent to allowthe district to proceed with the placement. Placement may begin no sooner than 10 days after theparent consents, unless the parent gives permission for it to start sooner. Illinois State Board of Education, June 53 2009
  • 48. 18 Parent Involvement in the Referral Process Both state and federal laws and regulations governing the administration of educational programs for students with disabilities have recognized the important role of parents in the special education process.  Parents and school personnel should establish a posi- tive relationship with shared goals and a common understanding of the child’s needs at home, at school, and in the community.  It is essential that parents and schools work co- operatively together to improve student performance.  Below you will find some tips to help you with parent involvement. Be an active participant in your child’s education: »» Inform yourself about what help is available in or through your child’s school. »» Talk to other parents, teachers, doctors, and community providers. »» Find resources like the ISTAC Parents, Parent Mentors, ISBE, Parent Training, Infor- mation Centers (PTIs) and Equip for Equality’s Special Education Clinic. »» Be able to talk about your child’s strengths and needs. »» Learn about your child’s legal rights. »» Participate in the meetings that look at information to decide if your child is eligible to receive special education services. »» Attend and be prepared to participate in the Individualized Education Program (IEP) meetings.  Parents are key decision makers and an equal member of the IEP team. »» Ask questions if you do not understand terms, language, or other things that hap- pen during your child’s meeting(s). »» Call, email, or request a meeting if you are worried about how your child is doing at school. In addition: »» Share letters, reports, or other materials that can help the school understand your child and provide appropriate services to your child.  This information could be from teachers, doctors, or community agencies.  Be sure to keep a copy of these items for your records. »» Start a file or log in which you write important dates and milestones of your child’s learning.  This will also be a good place to record the results of important conversa- tions and meetings you have had with teachers and others regarding your child’s Educational Rights and Responsibilities: Understanding Special Education in Illinois 54
  • 49. 19Parent Involvement in the Referral Process progress.  A binder works great! »» Send emails or letters confirming important conversations regarding your child and/or promises made with respect to what the school will or will not do. »» Always put in writing any important requests to the school, including requests for an evaluation (as well as requests for IEP meetings and records). »» Keep a copy of all letters that you send. »» Whenever possible send your correspondence by certified mail, return receipt re- quested to assure delivery of the letter, or hand carry the letter and request a re- ceipt. »» Keep printed copies of important e-mail messages to or from the school. »» Keep all papers and letters from the school that you feel are important such as IEPs, samples of your child’s work, and notices regarding the dates of meetings.  Keep these documents in your file. »» Develop an ongoing working relationship with those persons who are responsible for providing services to your child.  Get to know the names and responsibilities of all those working with your child. »» Communicate positive information as well as concerns. Illinois State Board of Education, June 55 2009
  • 50. 20 Evaluation and Reevaluation Evaluation and Reevaluation Evaluation is defined regulations as procedures used to determine whether a child has a disability and the nature and extent of the special education and related services that the child needs. The school district must assess the child in all areas of sus- pected disability including: »» academic performance »» health »» vision »» hearing Important Reminder »» social & emotional status Often these areas are called “domains” for purposes of »» communication the evaluation. »» motor abilities »» general intelligence »» functional performance »» other areas as needed. Public agencies are prohibited from using a measure or assessment for purposes different from the purpose for which the measure was designed. Assessments are provided and administered in the child’s native language or mode of communication to get accurate information on what the child knows and can do. The school district must use a variety of assessments, tools, and strategies to conduct the evaluation. When conducting an initial evaluation, a child must be tested in all areas of suspected disability. Data gathered from evaluations are used to assist in the development of the IEP. Assessments should be valid and reliable for their de- signed purposes. Educational Rights and Responsibilities: Understanding Special Education in Illinois 56
  • 51. Chapter 3: Referral & Evaluation 21Assessments must be administered by personnel who aretrained to do so.Assessments and other evaluation materials used shouldbe administered:• so as not to be discriminatory on a racial or cultural basis, and• in the child’s native language or other mode of commu- nication.Parent written informed consent must be obtained beforethe evaluation can be conducted.Information from parents should be included as part of theevaluation.Information should be collected through a variety of ap-proaches (observations, interviews, tests, curriculum-based assessment, and so on) and from a variety of sources(parents, teachers, specialists, peers, and the child).Parents should be given a copy of the conference reportand recommendations.Parents should be informed of their right to obtain an in-dependent educational evaluation (IEE) at district expenseif they disagree with the evaluation findings.The evaluation should yield information on what the childknows and can do academically, developmentally, andfunctionally.This applies when evaluating all children including those:• for whom English is not the native language;• who communicate by signing;• who use alternative augmentative communication; and• who use other means to communicate.Please note the following:• IDEA prohibits basing eligibility determination or spe- cial education programming upon the results of only Illinois State Board of Education, June 57 2009
  • 52. 22 Independent Educational Evaluation (IEE) one test, measure, or assessment procedure.  A variety Important Reminder of tools must be used. The determination of eligi- bility shall be made and the • As a parent, you can agree or disagree to any or all of IEP shall be completed in 60 the testing. school days (or less) follow- ing the date of written con- • Think about what the child knows and can do.  Exam- sent from the parent. ine how the child learns and demonstrates knowledge. • It is not enough to conduct a thorough examination of what a child cannot do when making decisions about educational programming. The Big Picture: Reevaluations Independent Educational Evaluation (IEE) Sometimes parents may have a reason to believe that the evaluation does not provide an accurate picture of their child’s abilities/areas of needs.  In those cases, parents can request in writing that a new evaluation be completed by an outside person or agency (someone not employed by the district).  The district is free to agree to the evaluation or to deny the request.  The district must provide its answer within five (5) calendar days of the parents’ request.  If the district denies the request, it is required to initiate a due process hearing in order to allow a due process hearing of- ficer to decide whether the evaluation should occur.  (See Section 11 for more information on due process hearings.) Educational Rights and Responsibilities: Understanding Special Education in Illinois 58
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  • 57. DUE PROCESS REQUEST FORM (to be hand delivered or sent by certified mail) Date: ______________________________________________, Superintendent______________________________________________ Re: (Name of Student, Age, Date of Birth)Dear Superintendent ______________: Please treat this correspondence as a formal request for a due process hearing pursuant to105 ILCS 5/14-8.02a, 23 Illinois Administrative Code §226.615, 20 U.S.C. 1415(b)(7) and 34CFR 300.507 and 300.508.I. Name of Child: The name, age, and date of birth of the child are stated above.II. Address of Child’s Residence: Address: ____________________________________________________ City/State/Zip: ____________________________________________________ Phones: ____________________________________________________III. Name of School the Child is Attending: _____________________________________________________________________ _____________________________________________________________________IV. Description of the Nature of the Problem, Including Facts Relating to the Problem: _____________________________________________________________________ _____________________________________________________________________V. Proposed Resolution of the Problem to the Extent Known and Available at the Present Time: _____________________________________________________________________ _____________________________________________________________________ For the above listed reasons, it is our position that the district has failed to provide ourchild with a free appropriate public education as required by state and federal law. We willparticipate in state sponsored mediation efforts. Sincerely, _________________________________________ Parent(s)N:General OfficeMemorandumsSuspension Expulsion and Discipline.doc 65
  • 58. TO : WCT Clients and Friends FROM: Brooke R. WhittedMEMO DATE: January 15, 2010 RE: OCR COMPLAINTS FILING OCR COMPLAINTSAttached please find a document revised this month by the Office for Civil Rights. It is auseful summary of the areas over which OCR has jurisdiction.If you desire to file a discrimination complaint with OCR in the Chicago Region, wesuggest a certified letter to: The United States Department of Education Office for Civil Rights Midwestern Division, Chicago Office Suite 1475 500 West Madison Street Chicago, IL 60661Once you send your letter, which should be sufficiently detailed for the OCR team todetermine that an investigation would have merit, you will receive a letter so stating, andenclosing the attached memorandum.The advantages of filing an OCR complaint are: 1. It does not require an expenditure of money; 2. If OCR holds in your favor, they have essentially done your investigation for you, at no cost to you; 3. There is always a chance the school district will mediate and the unpleasant experience of going to court will be avoided altogether. 4. If OCR concludes there is no justification for investigating, you may choose to proceed on your own, without prejudice. 67
  • 59. OFFICE FOR CIVIL RIGHTS (OCR) COMPLAINT PROCESSINGPROCEDURESFrom the Office for Civil Rights, ENFORCED BY OCROCR enforces the following laws:• Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color or national origin;• Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex;• Section 504 of the Rehabilitation Act of 1973, which prohibits discrimination on the basis of disability;• Age Discrimination Act of 1975, which prohibits discrimination on the basis of age;• Title II of the Americans with Disabilities Act of 1990 which prohibits discrimination on the basis of disability;• Boy Scouts of America Equal Access Act, part of the No Child Left Behind Act of 2001, which prohibits denial of access to or other discrimination against the Boy Scouts or other Title 36 U.S.C. youth groups in public elementary schools, public secondary schools, local education agencies, and state education agencies that have a designated open forum or limited public forum.EVALUATION OF THE COMPLAINTOCR evaluates each complaint that it receives in order to determine whether it caninvestigate the complaint. For example, OCR must determine whether OCR has legalauthority to investigate the complaint; that is, whether the complaint alleges a violationof one or more of the laws OCR enforces. OCR must also determine whether thecomplaint is filed on time. Generally, a complaint must be filed with OCR within 180calendar days of the last act that the complainant believes was discriminatory.1 If thecomplaint is not filed on time, the complainant should provide the reason for the delayand request a waiver of this filing requirement. OCR will decide whether to grant thewaiver. In addition, OCR will determine whether the complaint contains enoughinformation about the alleged discrimination to give the recipient fair notice of what theclaim is. If OCR needs more information in order to clarify the complaint, it will contactthe complainant; the complainant has 20 calendar days within which to respond toOCR’s request for information.OCR will dismiss the complaint if OCR determines that:• OCR does not have legal authority to investigate the complaint;• The complaint was not filed timely and that a waiver will not be granted; 1 68
  • 60. • The complaint is unclear or incomplete and the complainant does not provide the information that OCR requests within 20 calendar days of OCR’s request;• The allegations raised by the complaint have been resolved;• The complaint has been investigated by another Federal, state, or local civil rights agency or through a recipient’s internal grievance procedures, including due process proceedings, and the resolution meets OCR regulatory standards;• The same allegations have been filed by the complainant against the same recipient with another Federal, state, or local civil rights agency, or through a recipient’s internal grievance procedures, including due process proceedings, and OCR anticipates that there will be a comparable resolution process under comparable legal standards;• The same allegations have been filed by the complainant against the same recipient in state or Federal court;• The allegations are foreclosed by previous decisions of the Federal courts, the U.S. Secretary of Education, the U.S. Department of Education’s Civil Rights Reviewing Authority, or OCR policy determinations.OPENING THE COMPLAINT FOR INVESTIGATIONIf OCR determines that OCR has legal authority to investigate the complaint, that thecomplaint is filed timely (or that a waiver of the timeliness requirement is granted), andthat the complainant has alleged facts that, if true, would constitute a violation of one ofthe laws OCR enforces, and that give fair notice of what the claim of discrimination is,OCR will open the complaint for investigation.Opening a complaint for investigation in no way implies that OCR has made adetermination with regard to the merits of the complaint. During the investigation, OCRis a neutral fact-finder. OCR will collect and analyze relevant evidence from thecomplainant, the recipient, and other sources as appropriate. OCR will ensure thatinvestigations are legally sufficient and are dispositive of the allegations raised in thecomplaint.INVESTIGATION OF THE COMPLAINTOCR may use a variety of fact-finding techniques in its investigation of a complaint.These techniques may include reviewing documentary evidence submitted by bothparties, conducting interviews with the complainant, recipient’s personnel, and otherwitnesses, and/or site visits. At the conclusion of its investigation, OCR will determinewith regard to each allegation that:• there is insufficient evidence to support a conclusion that the recipient failed to comply with the law, or• a preponderance of the evidence supports a conclusion that the recipient failed to comply with the law 2 69
  • 61. RESOLUTION OF THE COMPLAINT AFTER A DETERMINATION OFNON-COMPLIANCEIf OCR determines that a recipient failed to comply with one of the civil rights laws thatOCR enforces, OCR will contact the recipient and will attempt to secure the recipient’swillingness to negotiate a voluntary resolution agreement. If the recipient agrees toresolve the complaint, the recipient will negotiate and sign a written resolutionagreement that describes the specific remedial actions that the recipient will undertaketo address the area(s) of noncompliance identified by OCR. The terms of the resolutionagreement, if fully performed, will remedy the identified violation(s) in compliance withapplicable civil rights laws. OCR will monitor the recipient’s implementation of the termsof the resolution agreement to verify that the remedial actions agreed to by the recipienthave been implemented consistent with the terms of the agreement and that the area(s)of noncompliance identified were resolved consistent with applicable civil rights laws.If the recipient refuses to negotiate a voluntary resolution agreement or does notimmediately indicate its willingness to negotiate, OCR will inform the recipient that it has30 days to indicate its willingness to engage in negotiations to voluntarily resolveidentified areas of noncompliance, or OCR will issue a Letter of Finding to the partiesproviding a factual and legal basis for a finding non-compliance.If, after the issuance of the Letter of Finding of non-compliance, the recipient continuesto refuse to negotiate a resolution agreement with OCR, OCR will issue a Letter ofImpending Enforcement Action and will again attempt to obtain voluntary compliance.If the recipient remains unwilling to negotiate an agreement, OCR will either initiateadministrative enforcement proceedings to suspend, terminate, or refuse to grant orcontinue Federal financial assistance to the recipient, or will refer the case to theDepartment of Justice. OCR may also move immediately to defer any new or additionalFederal financial assistance to the institution.RESOLUTION OF THE COMPLAINT PRIOR TO THE CONCLUSION OFTHE INVESTIGATIONEarly Complaint Resolution (ECR):Early Complaint Resolution allows the parties (the complainant and the institution whichis the subject of the complaint) an opportunity to resolve the complaint allegationsquickly; generally, soon after the complaint has been opened for investigation. If bothparties are willing to try this approach, and if OCR determines that Early ComplaintResolution is appropriate, OCR will facilitate settlement discussions between the partiesand work with the parties to help them understand the legal standards and possibleremedies. Staff assigned by OCR to facilitate the Early Complaint Resolution processwill not be the staff assigned to the investigation of the complaint.OCR does not approve, sign or endorse any agreement reached between the parties asa result of Early Complaint Resolution, and OCR does not monitor the agreement. 3 70
  • 62. However, if the recipient institution does not comply with the terms of the agreement,the complainant may file another complaint with OCR within 180 days of the date of theoriginal discrimination or within 60 days of the date the complainant learns of the failureto comply with the agreement, whichever date is later.Resolution of the Complaint Prior to the Conclusion of an InvestigationA complaint may also be resolved before the conclusion of an investigation, if therecipient asks to do so. If OCR determines that resolution of the complaint before theconclusion of an investigation is appropriate, it will notify the complainant of therecipient’s request and will keep the complainant informed throughout all stages of theresolution process. The provisions of the resolution agreement that is reached must bealigned with the complaint allegations and the information obtained during theinvestigation, and must be consistent with applicable regulations.A resolution agreement reached before the conclusion of an investigation must beapproved and will be monitored by OCR.REQUEST FOR RECONSIDERATION OF OCR’S DETERMINATIONSIf the complainant disagrees with OCR’s decision to dismiss or close a complaint for anyreason (e.g., jurisdiction, timeliness, other administrative reasons, insufficient evidenceto support the allegation(s)), he or she may send a written request for reconsideration tothe Office Director within 60 days of the date of OCR’s dismissal or closure letter. Thecomplainant must explain why he or she believes the factual information wasincomplete, the analysis of the facts was incorrect, and/or the appropriate legal standardwas not applied, and how this would change OCR’s determination in the case. Failureto do so may result in the closure of the request for reconsideration.The Office Director will respond to the request for reconsideration in writing. If thecomplainant disagrees with the Office Director’s decision, he or she may appeal inwriting to OCR’s Deputy Assistant Secretary for Enforcement.ADDITIONAL INFORMATIONRight to File a Separate Court ActionThe complainant has the right to file suit in Federal court, regardless of OCR’s findings.OCR does not represent the complainant in case processing, so if the complainantwishes to file a court action, he or she must do so through his or her own attorney or onhis or her own through the court’s pro se clerk’s office.If a complainant alleges discrimination prohibited by the Age Discrimination Act of 1975,a civil action in Federal court can be filed only after the complainant has exhaustedadministrative remedies. Administrative remedies are exhausted when either of thefollowing has occurred: 4 71
  • 63. 1) 180 days have elapsed since the complainant filed the complaint with OCR and OCRhas made no finding; or2) OCR issues a finding in favor of the recipient. If this occurs, OCR will promptly notifythe complainant and will provide additional information about the right to file forinjunctive relief.Prohibition against Intimidation or RetaliationAn institution under the jurisdiction of the Department of Education may not intimidate,threaten, coerce, or retaliate against anyone who asserts a right protected by the civilrights laws that OCR enforces, or who cooperates in an investigation. Anyone whobelieves that he or she has been intimidated or retaliated against should file a complaintwith OCR.Investigatory Use of Personal InformationIn order to investigate a complaint, OCR may need to collect and analyze personalinformation such as student records or employment records. No law requires anyone togive personal information to OCR and no formal sanctions will be imposed oncomplainants or other persons who do not cooperate in providing information during thecomplaint resolution process. However, if OCR is unable to obtain the informationnecessary to process a complaint because of the complainant’s failure to provideinformation or sign a consent form, OCR may dismiss or close the complaint.The Privacy Act of 1974, 5 U.S.C. § 552a, and the Freedom of Information Act (FOIA), 5U.S.C. § 552, govern the use of personal information that is submitted to all Federalagencies and their individual components, including OCR. It applies to records that aremaintained by the government that are retrieved by the individual’s name, socialsecurity number, or other personal identifier. It regulates the collection, maintenance,use and dissemination of certain personal information in the files of Federal agencies.The Department of Education has published a Privacy Act system of records noticeentitled “Complaint Files and Log, 18-08-01” that applies to these types of records.The information that OCR collects is analyzed by authorized personnel within theagency and will be used only for authorized civil rights compliance and enforcementactivities. However, in order to resolve a complaint, OCR may need to reveal certaininformation to persons outside the agency to verify facts or gather additionalinformation. Also, OCR may be required to reveal information requested under FOIA,which gives the public the right of access to records of Federal agencies. OCR will notrelease any information to any other agency or individual except in accordance with theprovisions of FOIA and the Privacy Act, or otherwise provided by law.FOIA gives the public the right of access to records of Federal agencies, except to theextent that the records or parts of them are protected from public disclosure by one ofnine exemptions. 5 U.S.C. § 552(b). In addition, a Federal agency’s use of any one ofthe FOIA exemptions is discretionary. Individuals may obtain items from many 5 72
  • 64. categories of records of the Federal government, not just materials that apply to thempersonally. OCR must honor requests for records under FOIA, with some exceptions.Although each request will be reviewed on a case-by-case basis, generally, OCR is notrequired to release documents during complaint evaluation and investigation orenforcement proceedings, if the release could affect OCR’s law enforcement activities.5 U.S.C. § 552(b)(5) and (b)(7). Also, a Federal agency may refuse a request forrecords if their release would result in an unwarranted invasion of privacy of anindividual. 5 U.S.C. § 552(b)(6).1 Complaints that allege discrimination based on age are timely if filed with OCR within180 calendar days of the date the complainant first knew about the allegeddiscrimination. 6 73
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  • 71. MEMOTo: ClientsFrom: Whitted & Cleary LLCDate: 8/24/05Re: L.R. v THSD 211We would like to call your attention to the recent Federal court decision of L.R. vs.Township High School District 211, very recently decided on August 15, 2005 by theHonorable Matthew Kennelly. This was a judicial appeal of an administrative dueprocess hearing which took 42 days over a span of 7 months.In this case, we represented School District 211 in which the central issue was the“full inclusion” of a student with severe disabilities. This due process hearing was thelongest in Illinois special education history, lasting a total of 42 days with more than10,000 pages of transcript. The hearing officer held for the school district, statingthat the child needed much more specialized, intensive services than she couldreceive in the mainstream.The Administrative decision, which is reported in LRP (104 LRP 42669), reveals thatthe student is now an 18-year-old girl with Rett Syndrome, the effects of which areapraxia (speech, hand, and gross motor movements) and serious and significantcognitive delays. She also is non-verbal and requires assistive technologyfor communication. The student also suffers from numerous medical ailments, someof which require periodic hospitalization. Uncharacteristic to Rett Syndromegenerally, she also has been aggressive to herself and other staff members, resultingin significant injuries.As you will read in the decision, which is similar to the Beth B.Federal appellate decision, the school district went to extraordinary measures in anattempt to defer to the parents’ wish to have their daughter educated in amainstream environment. However, due to the student’s extensive and uniquedisabilities, district staff (after nearly three years of trying) strongly believed sherequired more intensive programming that could not be provided in traditional highschool classes. The district decided to take a principled position over and aboveparental objections and recommended that she be placed within a self-contained, 83
  • 72. multi-needs classroom, at district expense, after numerous offers of appropriateprivate placements were rejected. The parents disagreed with this recommendationand believed that District 211 should create an appropriate program for the studentin her “homeschool,” and insisted that she be educated “within her owncommunity.” This was a classic “full inclusion” dispute.The hearing officer unequivocally disagreed and ordered placement in an appropriateself-contained setting. At the conclusion of the 42-day hearing, the hearing officerthoroughly considered all of the evidence and held for District 211 that a self-contained multiple needs program was the minimally restrictive and appropriateplacement where the student could receive a free and appropriate public education.Subsequent to publication of the case by LRP, parents appealed at the Federal courtlevel, Case No. 02 C 6098, and the attached decision was recently filed by JudgeKennelly. The court affirmed the Administrative hearing officer and dismissed theparents’ claims.N:General OfficeMemorandumsLR Summary (8-05).doc 84
  • 73. IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISIONBOARD OF EDUCATION OF )TOWNSHIP HIGH SCHOOL )DISTRICT NO. 211, ) ) Plaintiff, ) ) v. ) Case No. 02 C 6098 )MICHAEL R. and DIANE R., )individually and as next friends of )LINDSEY R., a minor, ) ) Defendants, ) )ILLINOIS STATE BOARD OF )EDUCATION, ) ) Third Party Defendant. ) MEMORANDUM OPINION AND ORDERMATTHEW F. KENNELLY, District Judge: Michael R. and Diane R. are the parents of Lindsey, an eighteen year-old girl who hasRett Syndrome, a neurological and developmental disorder that is characterized by the absence ofverbal ability, gait disturbances, and apraxia, an inconsistent ability to control the body andlimbs. The Individuals with Disabilities Education Act, 20 U.S.C. § 1414, guarantees Lindseythe right to a free appropriate public education (FAPE) in the least restrictive environment. TheIDEA obligates Lindsey’s home school district, District 211, to assess her educational needs andaddress those needs through an individualized education program. Id. § 1414(a)-(d). In November 2003, the District concluded that Lindsey was not receiving a FAPE in the 1 85
  • 74. District’s mainstream high school, Conant High School, and it therefore determined that sheshould be placed in a highly structured, multi-needs environment in a different school. Lindsey,acting through her parents, appealed the District’s placement decision to an independent hearingofficer (IHO). The IHO decided that the District’s placement determination was appropriate.Defendants, Lindsey’s parents, now seek to have the Court overturn the IHO’s decision. Both the District and defendants have moved for summary judgment. There are manydisputed material facts in this case, which ordinarily would preclude summary judgment. Fed. R.Civ. P. 56(c). In IDEA cases, however, motions for summary judgment are a procedural vehicleallowing the district court to rule on the case based on the administrative record. Thus, it isappropriate for the court to grant summary judgment even when facts are in dispute. Beth B. v.Van Clay, 282 F.3d at 493, 496 n. 2 (7th Cir. 2002). For the reasons stated below, the Court grants summary judgment in favor of the District.Defendants’ motion to strike the District’s reply to defendants’ response to the District’s Rule56.1(b)(3) statement of material facts is granted, because the local rules do not contemplatereplies to responses of Rule 56.1(b)(3) statements. The Court did not consider that reply inaddressing the present motions. Standard of Review In reviewing the findings made in an IDEA administrative hearing, courts are directed togive “due weight” to the decision of the IHO. Heather S. v. State of Wisconsin, 125 F.3d 1045,1052 (7th Cir. 1997). “‘Due weight necessarily implies some sort of deference to the agency’sdecision, and considering the officer’s special expertise in education law, we think a sound basisexists for giving deference to the decision of the hearing officers.’” Id. (citing Board of 2 86
  • 75. Education of Murphysboro Community School Dist. No. 186 v. Illinois State Board of Education,41 F.3d 1162, 1167 (7th Cir. 1994)). The testimony of witnesses and evidence submitted at thehearings, however, should be independently evaluated by the court. Id. at 1053; see also PatriciaP. v. Board of Education of Oak Park, 203 F.3d 462, 466 (7th Cir. 2000) (the “due weight”standard does not imply an “abdication of all judicial function”). A court must, however, bemindful of the fact that hearing officers have much greater expertise in educational policies thandistrict court judges, Heather S., 125 F.3d at 1053, and thus, the court may set aside theadministrative order only if it is “strongly convinced the order is erroneous.” Alex R. v.Forrestville Valley Community Unit School Dist. No. 221, 375 F.3d 603, 612 (7th Cir. 2004). The court is required to examine the administrative record, hear additional evidence at itsdiscretion, and base its decision on the preponderance of the evidence. 20 U.S.C. § 1415(i)(2)(B). In this case, the Court allowed Lindsey’s parents to adduce some new evidencefollowing the administrative ruling. When a court permits the introduction of new evidence, themore the court relies on this new evidence, “the less it should defer to the administrativedecision.” Alex R., 375 F.3d at 612. The new evidence in this case consisted of threedepositions. The testimony contained in these depositions did not provide the Court with anynew material information. Indeed, the information contained in the depositions was largelyduplicative of information already in the administrative record. Thus, the new evidence did notwarrant a more searching review of the IHO’s decision. In the administrative hearing, District 211 bore the burden of proving its proposedindividualized education program (IEP) was adequate. 105 ILCS 5/14-8.02(h). In thisproceeding, however, as the party challenging the IHO’s decision, the defendants bear the burden 3 87
  • 76. of proving their case by a preponderance of the evidence. Heather S., 125 F.3d at 1052. Thepreponderance of the evidence standard “by no means an invitation to the courts to substitutetheir own notions of sound educational policy for those of the school authorities which theyreview.” Rowley, 458 U.S. at 206. Facts Lindsey was diagnosed with Rett Syndrome when she was thirty-five months old. RettSyndrome is a rare condition, affecting approximately one in every ten to fifteen thousand girls.Vol. 22 at 3701. It is classified by the American Psychiatric Association as one of several“pervasive developmental disorders,” also referred to as the autism spectrum. Diagnostic andStatistical Manual of Mental Disorders 71 (4th ed. 1994). Rett Syndrome is caused by a geneticmutation which affects the overall rate of growth, including brain growth. Lindsey is nonverbal and suffers from apraxia, an inconsistent ability to control the bodyand limbs. She has, however, a higher level of motor functioning than the majority of girls withRett Syndrome; among other things, Lindsey can swim, ski, and ride a horse. Vol. 24 at 7338.Lindsey also has a higher level of cognitive functioning than most girls with Rett Syndrome.Though the average mental age of girls afflicted with Rett Syndrome is estimated to be eight toten months, doctors estimate Lindsey’s cognition to be between the seven and twelve year oldequivalency. Vol. 21 at 2901 (one test showed that Lindsey had the cognitive abilities of at leasta seven year old, and another showed she had the cognitive ability of an average twelve year old).It should be noted, however, that because girls with Rett Syndrome are nonverbal and have poormotor control, it is quite difficult to measure their cognitive ability accurately. Among the many effects of Rett Syndrome are that Lindsey’s hands get locked together, 4 88
  • 77. and she needs assistance in unlocking them. In addition, and perhaps significantly for purposesof this case, Lindsey engages in vocalizations, which can be loud and last for anywhere from afew seconds to over a minute. The cause and meaning of the vocalizations is not known with anycertainty. Rett Syndrome also causes Lindsey to engage in self-injurious behaviors, whichinclude hitting herself on the chin or head, the cause of which is also unknown. Lindsey alsosometimes strikes others, usually by butting them with her head. Lindsey is a resident of Schaumburg, Illinois. She was “mainstreamed,” that is, placed inher regular neighborhood schools, throughout elementary and junior high school. Aftergraduating from junior high, Lindsey started high school at Conant, her neighborhood highschool. Conant is one of five District 211 high schools. It is a large, crowded high school, with apopulation of approximately 2,638 students. Conant does not have a self-contained multipleneeds program. District 211 has a multiple needs classroom at another school, Hoffman EstatesHigh School. Lindsey entered Conant as a freshman in the fall of 2001. Her schedule included fiveregular education classes – physical education, biology, English, life studies, and math – andlunch. She had her own special education teacher and teacher’s aide who accompanied herthroughout the day. The teacher was responsible for modifying the curriculum to Lindsey’scognitive level and communication skills. The teacher and the aide were responsible fortransitioning Lindsey to and from class and working with Lindsey during class. If Lindseyneeded to be removed from class because of her behavior, the teacher and the aide would attemptto calm her using various techniques such as talking to her, rubbing her back, playing music,applying splints, and using a weighted vest and blanket. Lindsey had extensive toileting needs, 5 89
  • 78. to which her teacher and the aide attended. In addition, because she is nonverbal, Lindseyrequired numerous communication devices, such as yes/no cards, an alphabet board, and voiceoutput devices, and the teacher and the aide had to help Lindsey use the devices. Conant made a work room available for Lindsey’s private use. The work room was aplace where Lindsey could go to receive individualized instruction from her special educationteacher, receive speech and physical therapy, or calm herself when her behaviors requiredremoval from class. In May of Lindsey’s freshman year, she head-butted two staff members, causing them tosustain nasal fractures, one of which required surgery. Following these incidents, Lindsey wastaken out of Conant. Over the summer of 2002, Lindsey’s parents took her to the Sparks Clinicin Alabama, a clinic run by Dr. Alan Percy, an expert in Rett Syndrome, for a medical evaluationto determine the cause of her “behavior and irritability.” Vol. 24 at 7245. Dr. Percy could findno physical cause for Lindsey’s behavior and recommended continued evaluation by her doctorsin Chicago. Also in the summer of 2002, the District completed its IDEA-required triennialevaluation of Lindsey. The multidisciplinary review was conducted by Dr. Bennett Leventhaland Dr. Marrea Winnega at the University of Chicago Developmental Disorders Clinic. Afterclosely examining Lindsey, the Clinic concluded that Lindsey’s behaviors were grosslyinterfering with her ability to make educational progress. Vol. 11 at 3788 (the report notes that itwas difficult to assess Lindsey’s cognitive potential during the review because her behaviorinterferes with her ability to respond and the ability of staff to work closely with her). At theconclusion of the multidisciplinary review, the University of Chicago doctors recommended that 6 90
  • 79. Lindsey be taken out of Conant and placed in a special education setting: Regrettably but realistically, due to Lindsey’s behavior and general lack of progress, it is not appropriate for Lindsey to continue in her current, so-called regular education setting. Not only does she not benefit, but she has also become a significant and serious safety problem for herself and others. She is not safe around her teachers or fellow students. At this time, the least restrictive setting for Lindsey should be a self-contained special education program that has very strong behavioral training capabilities.Vol. 11 at 3790. The District held a meeting in August 2002 to create Lindsey’s IEP for the 2002-03school year. The District recommended a self-contained special education placement forLindsey. Lindsey’s parents refused to agree to that placement, as they believed Lindsey was bestserved in the regular education setting at Conant. They requested an administrative hearing toreview the District’s placement decision and made it clear that they would exercise the “stay put”provision of the IDEA. 20 U.S.C. § 1415(j). This provision permits a student who is eligible forspecial education services to remain in her current educational placement while a due processhearing is pending. The District filed suit, asking this Court to enjoin Lindsey’s parents frominvoking the stay put provision. The Court granted a temporary restraining order. Rather thanput Lindsey in a special education placement after the injunction was granted, defendants electedto keep her at home. The District and Lindsey’s parents thereafter negotiated regarding Lindsey’s placement.The parties reached a compromise and executed a settlement agreement on November 5, 2002.Vol. 5 at 1945. The agreement provided that Lindsey was to return to Conant as soon aspossible. A panel of experts was established with the task of preparing Conant for Lindsey’sreturn and reaching a consensus regarding if and when Lindsey should return to the school. Vol. 7 91
  • 80. 5 at 1959. If the panel could not reach a consensus regarding Lindsey’s return to Conant, theagreement provided that the dispute could be resolved before a hearing officer or by this Court.Id. The expert panel was composed of three members, Dr. Bennett Leventhal, Victor Morris,and Alice Belgrade. Dr. Leventhal, an adolescent psychiatrist and pediatrician, was the doctor atUniversity of Chicago Clinic who had evaluated Lindsey for the triennial evaluation. Dr.Leventhal also relied on the services of Dr. Winnega, the director of the Clinic, who had alsoparticipated in the triennial evaluation. Victor Morris, a specialist in educational and behavioralprogramming for students with autism spectrum disorders, worked for the North DuPage SpecialEducation Cooperative and owned his own consulting firm. He also consulted with Dr. MarkLenz, another member of his consulting firm. Alice Belgrade was the only member of the panelwith teaching experience. She founded Chicago Behavior Consultants and was a behavioralspecialist retained by Lindsey’s parents to work with Lindsey at home. Morris was chosen tolead and coordinate the panel. The panel members divided up tasks based on expertise. Dr.Leventhal would review medical records and provide medical consultative support; Vic Morriswould review the Conant environment and develop strategies that would work in theenvironment; and Belgrade would continue to work with Lindsey at home to shape her behaviorsand would develop a behavior intervention plan for use at school. Though seemingly well organized, the panel’s activities seemed “star-crossed” from thebeginning, according to the hearing officer. IHO Decision at 48. The panel members had troublecommunicating with each other quickly and reliably. Id. Furthermore, the panel members hadfundamental disagreements over Rett Syndrome; whether there was a correlation between 8 92
  • 81. “precursory behaviors” and the occurrence of vocalizations, self-injurious behavior, and head-butting; whether Lindsey’s environment caused or affected the severity of these behaviors; andwhether a plan developed by a behavioralist to minimize their frequency and intensity could beeffectively implemented at Conant. See IHO Decision at 48-50 (listing some of thedisagreements between panel members). Despite their differences of opinion, the panel members agreed that Lindsey should returnto Conant in spring 2003. Lindsey returned to Conant on April 21, 2003 with a shortenedschedule of three periods which included lunch, physical education, and English. Conant hiredJean Mansfield Link to be Lindsey’s special education teacher and Donna Frascati to be theteacher’s aide. Lindsey attended school for thirty-five days in the spring of 2003. Link kept detaileddaily and weekly logs of Lindsey’s experiences at Conant. See IHO Decision at 24-27(summarizing the weekly logs). The logs reflect that Lindsey spent most of her time in her workroom, rather than in classroom, often because self-injurious behavior and vocalizations requiredher removal from class. Of the thirty-five days Lindsey was at school, she was able to stay inEnglish class for the full fifty-minute period only twice. Id. at 24. Though her academicprogress was limited, Lindsey made progress in functional skills such as using a spoon,improving her sorting skills, responding to personal greetings, and developing proper hygiene.Id. at 30. Lindsey completed her sophomore year in June 2003. During summer 2003, Jean Linkinformed Conant that she was quitting her job to take a teaching position at a special educationschool. With Link leaving, Conant decided not to rehire Donna Frascati. In their place, Conant 9 93
  • 82. hired Bethany Powers as Lindsey’s special education teacher and Nora Mulcrone as an aide. Also in June 2003, the panel began to contemplate setting a time at which it wouldcomplete its work under the settlement agreement and thereafter dissolve. The panel discussedother placement options for Lindsey, such as the special education program at Hoffman EstateHigh School, but the panel members did not investigate these placements because they believedthe settlement agreement limited them to working with Conant. IHO Decision at 33. The paneldid not make a specific recommendation regarding what Lindsey should do during the summer orwhat her class schedule should be in the fall. Vol. 21 at 2262. On August 7, 2003, the IEP team met to start working on Lindsey’s IEP for her junioryear of high school. The IEP team consisted of Lindsey’s parents and their attorney, JenniferPearson, the assistant director of special education for the District, the District’s attorney,Belgrade, Morris, Scott Altergott, Lindsey’s English teacher, and Lindsey’s physical therapist.1Vol. 1 at 142. At the meeting, Morris unexpectedly announced his resignation from the panel.He explained he was resigning because he was concerned with the continuing effectiveness of thepanel and differences in perspective between himself and Belgrade regarding how best to supportLindsey. Vol. 21 at 2266. At the time of his resignation, Morris believed that Lindsey hadparticipated successfully at Conant with her limited schedule. Belgrade essentially agreed withMorris and believed that Lindsey should begin taking more academic classes in the fall. Dr. 1 The IDEA provides that an IEP team must include the parents of the disabled child; notless than one regular education teacher of the child; not less than one special education teacher;and a qualified and knowledgeable representative of the school district. 20 U.S.C. §1414(d)(1)(B). The IDEA does not restrict the team to these members, however, and otherteachers, school administrators, and experts knowledgeable about the disabled may be includedin the team at the discretion of the school district or parents. Id. 10 94
  • 83. Leventhal, however, was not convinced that Lindsey’s time at Conant in the spring wasappropriate. He was concerned about her vocalizations and behaviors and believed that if thebehavioral disruptions could not be controlled, Lindsey should be removed from Conant. Vol. 22at 3944. The next IEP team meeting occurred on August 15, 2003. Conant’s representatives onthe team believed that Lindsey should be placed in a self-contained, special education setting;however, they did not recommend such a placement because they felt constrained by thesettlement agreement. Lindsey’s parents and Belgrade wanted Lindsey to return to Conant with afull day of classes in the fall. The IEP team acquiesced to the demands of Lindsey’s parents, andLindsey began school on August 27, 2003 with a six period day that included English, earthscience, foods, physical education, lunch, and a resource period. From the beginning of the 2003-04 school year, Lindsey behaved differently than she hadin the spring. IHO Decision at 40. She took progressively longer to get to class, sometimestaking as much as twenty minutes to walk from her work room to classroom. As a result,Lindsey was generally late to class. In addition, Lindsey often had to be removed from class dueto her vocalizations and other behaviors. Furthermore, Lindsey suffered from medical problemsincluding an impacted bowel and a yeast infection. She also seemed fatigued and unsteady onher feet, and her motor skills appeared to have deteriorated. Because of medical and behavioralproblems, Lindsey was in school for the full six periods on only five days during September andOctober 2003. Concerned by Lindsey’s behavior, the District sought help from the panel members. Bythis point, however, the panel was no longer actively involved in Lindsey’s case, though it had 11 95
  • 84. not formally dissolved. Morris, Belgrade, and Dr. Winnega agreed to observe Lindsey in school.Morris and Belgrade observed on October 16, and Dr. Winnega observed on October 31. TheIEP team held a meeting on November 5, 2003, which Morris, Belgrade, and Dr. Winnegaattended in order to share their observations. Morris told the team that he believed Conant wasnot the appropriate placement for Lindsey and that she should be placed in a self-containedspecial education setting. Vol. 21 at 2274-77. Dr. Winnega agreed; she felt Lindsey needed tobe removed from Conant as soon as possible. Vol. 6 at 2229. Belgrade continued to recommendthat Lindsey remain in her current placement at Conant. Id. at 2228. Lindsey’s regular educationteachers, speech therapist, special education consultant, and the Conant administrators present atthe IEP meeting all agreed with Morris and Dr. Winnega that Lindsey’s needs were not being metat Conant. Id. at 2226-30. At the end of the meeting, the District decided that Lindsey was not benefitting fromConant and changed her placement to a “multiple needs program” for disabled students thatwould provide “a safe environment and protective strategies”; would have the capacity “toconduct sophisticated behavior analysis and create behavioral inventions”; and would provideopportunities for Lindsey to interact with nondisabled peers. Vol. 6 at 2239. Though the Districtdid not specify which school contained a multiple needs program appropriate for Lindsey, itrecommended Lake Park High School, a multiple needs program run by the North DuPageSpecial Education Cooperative. Id. at 2240. Lindsey’s parents disagreed with the placement andsought review of the District’s decision in a due process hearing. The IDEA provides for review of a school’s placement decision in a hearing before anIHO. 20 U.S.C. § 1415(b)(6); 105 ILCS 5/14-8.02. Carolyn Smaron was appointed as IHO for 12 96
  • 85. Lindsey’s case. The IHO heard forty-two days of testimony, the longest special education dueprocess hearing in Illinois history. Following the hearing, the IHO issued a sixty-one pagedecision in which she concluded that the District’s placement decision was appropriate.Lindsey’s parents, the defendants in this action, have appealed the IHO’s decision to the Court,as is their right. 20 U.S.C. § 1415(i)(2)(a). In addition to asking the Court to overturn the IHO’sdecision and order for Lindsey to again be placed at Conant, defendants ask the Court to directthe District to hire an independent behavior specialist, chosen by defendants and approved by theCourt, to develop a functional behavioral analysis and behavior intervention plan; pay thebehavior specialist to provide ongoing training and consultation to District staff and Lindsey’sparents and have ongoing authority over the implementation of Lindsey’s program at Conant; andaward Lindsey two years of compensatory education following her graduation from or “agingout” of Conant. The parents have also filed a cross-claim against the Illinois State Board of Education inwhich they allege that the ISBE violated the IDEA, Americans with Disabilities Act, and section504 of the Rehabilitation Act by failing to ensure that the District educate Lindsey at Conant. Inthe cross-claim, Lindsey’s parents ask the Court to direct the ISBE to implement targetedmonitoring of the District for IDEA compliance and to oversee Lindsey’s placement to ensurecompliance with the IDEA and Lindsey’s IEP. Rowley Requirements The IDEA guarantees children with disabilities the right to a FAPE. 20 U.S.C. §1412(a)(1). The Supreme Court has articulated a two-part test to determine whether a school hasfulfilled its duty to provide a FAPE: (1) has the school district complied with the procedures 13 97
  • 86. provided by the IDEA; and (2) is the student’s IEP reasonably calculated to provide educationalbenefits. Hendrick Hudson Dist. Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 (1982). If theschool district fails either part of the Rowley test, the student’s right to a FAPE has been denied. For ease of analysis, the Court will address defendants’ Rowley claims according to thetime period in which they arose. 1. December 2002 to June 2003 December 2002 to June 2003 is the time period subsequent to the signing of thesettlement agreement, which includes the preparation for Lindsey’s return to Conant andLindsey’s attendance at Conant for the last six weeks of her sophomore year. a. Procedural requirements Defendants do not allege any procedural violations during this time period. b. Substantive requirements Defendants assert that Lindsey’s sophomore year IEP was not implemented properly. Thesettlement agreement made Lindsey’s August 2002 IEP her current IEP when she returned toConant in spring 2003, including all of the goals and objectives contained therein, except for anymodifications made by the expert panel. Vol. 5 at 1953. Lindsey’s August 2002 IEP identifiedmany needs and services that she required, and according to defendants, the District failed tomeet these needs and provide these services.2 Specifically, defendants argue that the District failed to carry out the portion of Lindsey’sIEP which called for a development of a transition plan. The purpose of a transition plan is to 2 The IDEA regulations contain an extensive list of goals and services that must beincluded in an IEP, including transition services, assistive technology evaluation and services,and extended school year services if appropriate. 34 C.F.R. §§ 300.29, 300.6, & 300.309. 14 98
  • 87. formulate a plan for a student to transition to post-school life. 34 C.F.R. § 300.29(a)(1). Therecord reflects that Lindsey’s transition plan was “deferred.” Vol. 23 at 4961. The Districtexplained, however, that it is common practice to defer a transition plan if the school has notgotten to the point where one can be written, i.e., the student is not ready to transition. Id. TheDistrict has yet to develop a transition plan for Lindsey because, in its professional opinion,Lindsey is not ready for prevocational screening, learning about interview strategies, andstrategies for living on her own. The preponderance of the evidence supports the District’sdecision to defer Lindsey’s transition plan. Because Lindsey needs significant assistance inperforming basic daily activities, has a limited ability to communicate, and frequently displaysaggressive behaviors, it was reasonable for the District to determine that Lindsey has not yetprogressed to the point at which a transition plan is necessary. Defendants also point to the requirement in Lindsey’s 2002 IEP for an updated assistivetechnology (AT) evaluation and updated technology services. The IDEA requires school districtsto provide AT services, including evaluation of a child’s AT needs, purchase of appropriate ATdevices, adapting AT devices, and training of the child and staff on the use of AT devices. 34C.F.R. § 300.6(a)-(f). Lindsey’s AT evaluation, however, was not completed until February2003, which defendants say amounted to an undue delay in providing Lindsey important services.Defendants also contend that once the AT evaluation was completed, the District failed toimplement many of the evaluators’ recommendations. For example, defendants note that theDistrict did not call a team meeting or IEP meeting to discuss the AT evaluation, Vol. 25 at 9304,and did not provide Lindsey with a device called Tech/Talk, which the AT evaluator, KathleenPost, recommended as the appropriate voice output device for Lindsey. Vol. 24 at 7632. 15 99
  • 88. Lindsey was not denied a FAPE because of the District’s delay in providing an ATevaluation. Lindsey did not return to school until April, and thus, completion of the ATevaluation in February gave the expert panel and the District sufficient time to consider theevaluation. Furthermore, the District was not obliged to follow all of the AT evaluator’srecommendations, particularly when specialists who worked with Lindsey made differentrecommendations. Beth B. v. Van Clay, 211 F. Supp. 2d 1020, 1027 (N.D. Ill. 2001) (in holdingthat the school district’s failure to follow the advice of an independent Rett Syndrome expert itconsulted did not violate the IDEA, the court stated that a school administrators are “not obligedto follow anyone’s advice” because they “do not relinquish their authority to make educationalpolicy decisions by agreeing to consider an independent consultant’s opinion”). The Districtexplained that it did not follow Post’s recommendation of Tech/Talk as the appropriate voiceoutput device because Phyllis Duffie, the AT consultant working with Lindsey at Conant,recommended SuperHawk. Vol. 24 at 7676-78. The IDEA also requires school district to provide extended school year services (ESY) toa student if the IEP team determines they are necessary for the provision of the child’s FAPE. 34C.F.R. § 300.309(1)-(2). Defendants claim that the District failed to fulfill its obligation to giveLindsey ESY services in the summer of 2003 despite the fact that her IEP provided for ESY. Atthe due process hearing, however, witnesses testified that school administrators and panelmembers worked on finding Lindsey an appropriate summer program. Vol. 21 at 2483-97. TheDistrict offered to place Lindsey in the regular education four hour per day summer schoolprogram, but defendants refused this placement because they wanted to put Lindsey in a summercamp, where they felt she would have more of an opportunity to socialize. Defendants had every 16 100
  • 89. right to make this decision, but it is disingenuous for them to now assert that the District failed inits duty to provide ESY services. 2. August to November 2003 This period of from August through November 2003 covers the formulation of Lindsey’sAugust 2003 IEP and her attendance at Conant as a junior in the fall of 2003. a. Procedural requirements Defendants argue that the District violated the procedural requirement of the Rowley testby denying them the opportunity to participate in Lindsey’s IEP meeting. The cornerstone of theIDEA is the development and implementation of the IEP. Honig v. Doe, 484 U.S. 305, 311(1988). Because of the importance of the development of the IEP, the IDEA contains anextensive list of procedural requirements school districts must follow. One of these requirementsis parental participation in the development of the IEP. 34 C.F.R. § 300.345(a). Parents have theright to be members of “any group that makes decisions on the educational placement of theirchild,” 20 U.S.C. § 1414(f), including the team that produces the IEP. 20 U.S.C. §1414(d)(1)(B). School districts are responsible for ensuring that parents are afforded anopportunity to participate at each IEP meeting. 34 C.F.R. § 300.345(a). Defendants argue that they were denied an opportunity to participate in the formulation ofLindsey’s August 2003 IEP because the District made an addendum to Lindsey’s August 2003IEP without consulting them. The addendum stated: By the end of her ninth grade year, in addition to the daily possibility of serious physical injury being inflicted on its staff, staff members who worked closely with Lindsey sincerely believed she was receiving virtually no educational benefit in the mainstream. Based on these beliefs, public school personnel recommended a placement at a separate school designed to appropriately meet Lindsey’s needs. The family disputed this 17 101
  • 90. recommendation. For weeks, the family and school district engaged in sometimes difficult discussions and negotiations. Ultimately, these cooperative efforts resulted in the settlement agreement that now controls. However, the belief among District 211 staff that Lindsey is not being appropriately served in the mainstream still exists. Staff members directly involved with Lindsey continue to believe that the appropriate education placement for Lindsey is a public or private day or residential setting designed to provide the type of specialized instruction and integration of related services necessary for students with Lindsey’s complex needs. However, staff is also advised by legal counsel that the settlement agreement continues to control and therefore they will in good faith implement whatever IEP is agreed upon today. Were it not for the settlement agreement, as a matter of conscience, public school personnel would continue to recommend an appropriate public or private self-contained setting.Vol. 6 at 2125-26. The District admits that the addendum was written during a break in the IEPmeeting and was not discussed with Lindsey’s parents before putting it into her IEP. Vol. 22 at4371-71. Though the Court does not believe the addendum amounted to a procedural inadequacy,even if it was, it did not rise to the level of an IDEA violation. Not all procedural breaches areIDEA violations. The Seventh Circuit has held that only “procedural inadequacies that result inthe loss of educational opportunity” constitute a denial of FAPE. Evanston Community Consol.School Dist. No. 65 v. Michael M., 356 F.3d 798, 804 (7th Cir. 2004); Edwin K. v. Jackson, No.01 C 7115, 2002 WL 1433722, *14 (N.D. Ill. July 2, 2002). Lindsey clearly did not suffer a lossin educational opportunity because of the addendum; her time at Conant was actually doubled inthe August IEP meeting. Defendants assert that procedural inadequacies can also violate FAPE if they “seriouslyinfringe the parents’ opportunity to participate in the IEP formulation process.” W.G. v. Bd. ofTrustees, 960 F.2d 1479, 1484 (9th Cir. 1992); Roland M. v. Concord School Community, 910 18 102
  • 91. F.2d 983, 994 (1st Cir. 1990); Hall by Hall v. Vance County Bd. of Educ., 774 F.2d 629, 635 (4thCir. 1985). The Seventh Circuit has thus far declined to adopt this standard. Michael M., 356F.3d at 804. But, even if the Seventh Circuit had done so, this Court’s decision would notchange. Defendants’ right to participate actively was not infringed, as shown by the fact that theIEP contained the exact program the defendants advocated, i.e., it increased Lindsey’s schoolschedule from three periods to a full day of six periods. Because the District fully adopteddefendants’ proposed schedule for Lindsey in the August 2003 IEP, defendants cannot show thatthey were denied a meaningful opportunity to participate in the IEP meeting. 2. Substantive requirements Defendants claim that Lindsey’s August 2003 IEP was not formulated or implemented bythe District in a way that provided Lindsey with educational benefit. They base this claim on thechange in Lindsey’s behavior from spring 2003, when defendants argue Lindsey greatlybenefitted from her time at Conant, to fall 2003, when it is undisputed that her behavior andacademic functioning declined. Defendants place the blame for Lindsey’s deterioration on theDistrict’s alleged failure to support Lindsey in the fall. Specifically, defendants argue that theDistrict failed to provide Lindsey with adequate staff, staff training, and services. The District,however, argues that the actions of its staff and administration had nothing to do with Lindsey’sdeterioration in fall 2003. Rather, the District argues, Lindsey’s behavior at Conant had alwaysbeen a problem and deteriorated in the fall because Conant was not the appropriate environmentfor dealing with her complex needs. A key ground for defendants’ assertion that Lindsey was not properly supported and theircontention is that Lindsey’s teacher and aides failed to correctly implement Lindsey’s behavioral 19 103
  • 92. and academic plans. Defendants argue that Bethany Powers and Nora Mulcrone were inadequateteachers as compared to Jean Link and Donna Frascati, Lindsey’s staff in the spring. Indetermining whether the District and its staff fulfilled their duty under Rowley to appropriatelyimplement Lindsey’s IEP in fall 2003, the Court must keep in mind that the IDEA does notguarantee a disabled child the best possible educational experience. Bd. of Educ. ofMurphysboro Community, 41 F.3d at 1166 (school districts “are not required to educate the childto his or her highest potential”). Rather, the statute provides a basic floor of opportunity fordisabled children to attend public school. Rowley, 458 U.S. at 200; White, 343 F.3d at 378 (“AFAPE need not maximize the child’s potential; it must guarantee a basic floor of opportunity.”). In comparing Lindsey’s experiences at Conant in spring and fall 2003, it appears that inspring 2003, Lindsey enjoyed an exceptional educational experience at Conant, at least in partbecause of the outstanding skills possessed by Link and Frascati. As described by Lindsey’smother, and undisputed by the District, Jean Link had a very special rapport with Lindsey. Vol.26 at 9355-67. Lindsey’s mother testified that Link was “phenomenal” at assisting Lindsey incommunicating, id. at 9367, created communication devices that were similar to those created bycommunication experts, id., and created an “unbelievable” amount of academic materials forLindsey. Id. at 9368. Lindsey’s experience with Link appears to have approached the ideal. Butthe IDEA does not guarantee a phenomenal teacher for every child with a disability. After Linkchose to leave Conant for a different teaching position after the end of the 2002-03 school year,the District hired Bethany Powers, an experienced special education teacher,3 to replace her. 3 Powers worked as an aide for special needs students in District 54 for four summers.Vol. 21 at 1437. After graduating from college, she worked for NSSEO as an inclusion teacherfor a child with a severe learning disability who was fully included in the mainstream school. Id. 20 104
  • 93. Powers attended training at Conant for working with Lindsey, did her own research on RettSyndrome, met with Lindsey before the beginning of the school year, kept detailed behaviorallogs during the school year, and made a good faith effort to carry out Lindsey’s IEP. The factthat Powers may not have had the same extraordinary rapport with Lindsey that Link had doesnot suggest that the District failed to adequately implement Lindsey’s IEP. Defendants also assert that Lindsey was not given communication devices on a consistentbasis in fall 2003, as recommended by the expert panel and the February 2003 AT evaluation.The result, according to defendants, was Lindsey’s display of negative behavior. Defendantsbase their assertion that Lindsey was not given consistent access to communication devices onthe fact that when Belgrade and Morris observed Lindsey on October 16, they saw Powers fail toprovide Lindsey with a communication device on several occasions. Vol. 25 at 8739, 8533; Vol.21 at 2344. Though unfortunate, the fact that Powers and her teacher’s aides forgot to provideLindsey with a communication device after asking her a question six times on the one dayBelgrade and Morris were observing does not lead to a finding that the District failed to provideLindsey with an IEP reasonably calculated to provide her educational benefit. First of all, there isevidence from Belgrade and Morris that they observed Powers providing Lindsey withcommunication devices and taking those devices to class with her on the day they observed. Vol.25 at 8737. Powers testified at the hearing that she consistently used communication deviceswith Lindsey and that she programmed Lindsey’s voice output device. Vol. 21 at 1593, 1609.Maria Fasolo, Lindsey’s speech and language pathologist, also testified that Lindsey had accessat 1441. She also taught multiple needs summer school in a self-contained setting. Id. at 1437. 21 105
  • 94. to communication devices in fall 2003. Vol. 20 at 1111. Dr. Winnega also testified that after sheobserved Lindsey at school two weeks after Morris and Belgrade, she saw nothing that indicatedPowers was an ineffective teacher. Vol. 21 at 1960. Defendants also argue that the District denied Lindsey a FAPE by failing to appropriatelyimplement her behavior intervention plan, as contrasted with the appropriate implementation bythe spring 2003 staff at Conant. According to defendants, Powers and her aides implementedLindsey’s BIP inconsistently and too often focused on restrictive strategies such as prematurelyremoving Lindsey from the classroom, encouraging her to go to the workroom, and using splints.Furthermore, defendants argue that the staff failed to collect behavioral data in a way that couldbe used to develop new strategies, which was, defendants say, the fault of the District for failingto train the staff on proper data collection. The Conant staff may have been less than perfect in implementing Lindsey’s behaviorplan in fall 2003, but it made a good faith effort to implement the plan and kept detailed logs ofLindsey’s behavior. As we will discuss later in this decision, the root of the problem inimplementing the plan was not the staff, but the complexity of Lindsey’s plan and the difficultiesof carrying it out in a large, regular education high school. Indeed, Dr. Leventhal and Dr.Winnega recognized the difficulty in implementing a behavior plan for Lindsey at Conant asearly as summer 2002 when they performed the triennial evaluation. Indeed, the triennialevaluation stated that the type of intensive behavioral management program Lindsey needed “wasnot going to be able to be done in that setting [Conant].” Vol. 21 at 2136, 2190-92. The Districtcannot be held to a standard of perfection in implementing Lindsey’s difficult behavioralintervention plan at Conant. See also Vol. 21 at 2273 (Morris testified that complex behavioral 22 106
  • 95. programs such as Lindsey’s, which are “based on flawless or very high levels of implementationas a requirement of their effectiveness are generally going to be ineffective in school settingsbecause there are always error in implementation”); id. at 2136 (Dr. Winnega testified that the“intensive behavior management” Lindsey needed “was not going to be able to be done” atConant). The preponderance of the evidence supports the IHO’s conclusion that the District’sstaff appropriately implemented Lindsey’s behavior plan under challenging circumstances. According to defendants, the District made numerous other mistakes in implementingLindsey’s IEP, including decreasing her speech and physical therapy services, Vol. 6 at 2038,failing to create social stories4 in fall 2003, Vol. 21 at 1812, failing to provide music therapy,Vol. 6 at 2026, and failing to provide her with a properly fitting weighted vest as her IEPsrequired, Vol. 26 at 9706. None of these contributed materially to the failure of Lindsey’s IEP toprovide her with meaningful educational benefit in the fall of 2003. In fact, many of the samealleged deficiencies also existed in the spring of 2003, when, defendants say, Lindseyexperienced significant educational at Conant. For example, in spring 2003, only one socialstory was developed and used. Vol. 23 at 5758. The lack of new social stories in the fall cannotbe said to have significantly contributed to the problems Lindsey had in the fall. Lindsey also didnot have music therapy or a properly fitting vest in spring 2003. Defendants also claim that the District failed to carry out the IEP in good faith. Thisclaim is based on a letter written by Dr. Dan Cates, director of special education for the District,in March 2003, even before Lindsey returned to Conant in spring 2003. The letter stated that Dr. 4 “Social stories” are stories describing individuals in social situations and explaining howthey behave in order to assist a student in understanding and demonstrating appropriate behaviorin anticipation of or in reaction to specific situations. 23 107
  • 96. Cates would be advising school personnel working with Lindsey when she returned to Conant towear football helmets out of concern for their safety. Vol. 9 at 3074. The letter was addressed tothe members of the expert panel. A copy of the letter was sent to defendants, and they wereunderstandably offended and upset. Defendants argue that this letter demonstrates the District’slack of a good faith effort to make Lindsey’s program at Conant work. Vol. 26 at 9317. Theyalso assert that this letter poisoned the minds of staff members at Conant and made it clear thatLindsey was not wanted thre. Vol. 24 at 6850. Dr. Cates testified at the administrative hearing,however, that the letter was never shared with any staff member of Conant. Vol. 24 at 6470. Healso stated that the letter was hyperbole, meant to “invoke deliberation from panel members.”Vol. 23 at 5350. Dr. Cates testified that he was seriously concerned about the safety of his staffafter the incidents in Lindsey’s freshman year – the two broken noses – and wanted the panel tofully consider safety issues before Lindsey’s return to Conant. Id. at 5351. He said he neveractually planned, and never arranged for the staff to actually wear helmets. Vol. 24 at 6492. Regardless of the Dr. Cates’ claimed intent, his letter was inappropriate. It is notindicative, however, of a violation of the IDEA. The preponderance of the evidence supports theIHO’s conclusion that Conant administrators and staff acted in good faith in attempting to carryout Lindsey’s IEP. Moreover, Dr. Cates’ letter was written before Lindsey’s return to school inspring 2003. Thus, if the letter actually had an effect on Lindsey’s program, one would expect tohave seen it in spring 2003. According the defendants, however, the spring 2003 term is whatproved that Lindsey could be successfully mainstreamed at Conant. In sum, defendants have failed to show that the school district failed to implementsubstantial or significant provisions of Lindsey’s IEP. Defendants have shown, at most, a de 24 108
  • 97. minimis failure to implement all elements of Lindsey’s IEP. The Court cannot say that Lindseywas denied a FAPE. Houston Independent School Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir.2000) (“to prevail on a claim under the IDEA, a party challenging the implementation of an IEPmust show more than a de minimis failure to implement all elements of the IEP, and instead,must demonstrate that the school board or other authorities failed to implement substantial orsignificant provisions of the IEP”). The preponderance of the evidence reflects that the Districtexercised its professional judgment and good faith in producing and implementing Lindsey’sIEP.5 3. November 2003 1. Procedural requirements Defendants accuse the District of predetermining Lindsey’s placement in the November2003 IEP meeting. The IDEA requires that a placement decision be based on the IEP. In otherwords, the placement decision must be based on the IEP produced by the IEP team and cannot bemade before the IEP is produced. Spielberg v. Henrico County Public Schools, 853 F.2d 256,258-59 (4th Cir. 1988). A unilateral decision to change a student’s placement before the IEPmeeting with the student’s parents, referred to as “predetermination,” can constitute a violation of 5 The Court agrees with the IHO’s statement that: [T]he school district developed Individualized Education Plans for the student who appeared in their building - a student with limited ability to communicate without utilizing augmentative communication, a student whose behavior actively interfered with her own education and the education of her fellow students and a student with limited body control (apraxia). The school district exercised its professional judgment as to how best to educate the student.IHO Decision at 58. 25 109
  • 98. the IDEA. Id. at 259. Defendants claim that the District did exactly that. Defendants claim of predetermination is based on two occurrences. First, Dr. Cates andDr. Malito, the superintendent of District 211, met with defendants in October 2003 and toldthem that the District would be recommending at the upcoming November 5 IEP meeting thatLindsey be placed in Lake Park High School, a special education high school. Vol. 26 at 9902-03. Second, on the day of the actual IEP meeting, the District had attorneys standing by at thefederal courthouse ready to suit and seek an injunction if the defendants refused to agree to achange in placement. Vol. 23 at 5230. Defendants assert that this evidence makes it clear thatLindsey’s placement change was predetermined. Defendants’ argument fails because school districts are permitted to prepare for IEPmeetings, including drafting proposals and thinking about the appropriate placementrecommendation. Drafting an IEP in advance of the IEP meeting is “not cause for concern, asnothing in the IDEA or its regulations prohibits school districts from coming to an IEP meetingwith tentative recommendations for its development prepared in the parents’ absence.”Blackmon v. Springfield R-XII School Dist., 198 F.3d 648, 657 (8th Cir. 2000). In fact, thoughthe IDEA regulations state that parents have a right to participate in meetings regarding theirchild’s placement, they provide that the term “meetings” does “not include preparatory activitiesthat public personnel engage in to develop a proposal or response to a parent proposal that will bediscussed in a later meeting.” 34 C.F.R. § 300.501(b)(1)-(2). In testimony before the IHO, Dr.Cates, the director of special education for the District, made it clear that, though the Districtprepared for the IEP meeting, it was open to hearing and considering proposals made by the 26 110
  • 99. parents and other attendees.6 Vol. 23 at 5230. Trudy Lane, the special education departmentchair at Conant, testified that it is a common practice for the District to put together a draft IEPbefore an IEP meeting. Vol. 23 at 4817-18. In addition, the Settlement Agreement specified that if the panel members could not cometo an agreement over Lindsey’s return to Conant, either the school district or Lindsey’s parentscould take the issue to this Court or request an administrative hearing. Though there is a disputeabout whether the panel still existed on November 5, 2003, it is undisputed that the panel neverformally dissolved and that the panel members did not agree on the appropriate placement byNovember 5, 2003, when the District filed suit. In addition, and perhaps more importantly, thedecision to file the lawsuit was made by Dr. Cates; members of Lindsey’s IEP team, such asTrudy Lane, the team’s coordinator, had no knowledge of the plan to file suit if an agreement wasnot reached at the IEP meeting. Vol. 23 at 4818-19. School officials must come to the IEP table with an open mind, but they need not comewith a blank mind. Doyle v. Arlington County School Bd., 806 F. Supp. 1253, 1262 (E.D. Va.1992). The fact that the District had attorneys standing by to file suit is not enough by itself to 6 During the administrative hearing, Dr. Cates was asked whether the District decidedbefore the November IEP meeting to transfer Lindsey to a special education school and to file aninjunction if the parents did not agree to the transfer. Cates responded: No, there was no - there was no agreement. There was no idea about where things were going. We were hoping for an agreement between the parties. We were hoping that the two parties would see eye to eye about what - you know, I didn’t know what that would be, whether that would be the return to Conant or a return to somewhere else. I had no idea what that would be. If there was a lack of consensus among the experts, that was what allowed the trigger to return to court.Vol. 23 at 5230-31. 27 111
  • 100. show that the District had predetermined Lindsey’s placement. The record reflects that Lindsey’sneeds were discussed at length at the IEP meeting. The fact that the parents’ position was notadopted in the meeting does not lead to the conclusion that they were denied input in theplacement decision. White v. Ascension Parish School Bd., 343 F.3d 373, 377 (5th Cir. 2003)(“we reject the assertion that parents are denied input into a decision if their position is notadopted”). In short, the administrative record supports the IHO’s conclusion that there were nomaterial procedural errors in the formulation of any of Lindsey’s IEPs. IHO Decision at 45.Lindsey’s parents attended every IEP meeting and every team meeting. Vol. 24 at 6847. Theyattended the August 2002, August 2003, and November 2003 IEP meetings with their lawyer.IHO’s Decision at 45. Defendants had the opportunity for meaningful participation in the IEPmeetings, and the evidence shows that they did meaningfully participate in all of the meetings. 2. Substantive requirements Defendants allege that Lindsey’s November 2003 IEP was not reasonably calculated toprovide Lindsey with educational benefit and therefore violated the IDEA. See Rowley, 458 203. The IHO, however, found that the November 2003 IEP, including its proposal to placeLindsey in a self-contained classroom, likely would benefit Lindsey. Defendants argue that theIHO’s decision should be overturned because the IEP failed to satisfy the requirements of theIDEA. The IDEA requires that an IEP contain, among other things, a statement of measurableannual goals; an explanation of the extent to which the child will be educated and participate inactivities with nondisabled children; a statement of supplementary aids and services to be 28 112
  • 101. provided to the child; and a statement of transition services for students age 14 and older. 34C.F.R. § 300.347. Defendants argue that the November 2003 IEP, in contrast to prior IEPs, didnot contain a set number of minutes per week for occupational therapy, speech therapy, orphysical therapy. Vol. 6 at 2239. They also argue that the November IEP did not contain aprovision for a functional behavioral analysis, which was recommended by Morris and Belgrade,and does not contain a revised behavioral intervention plan. Though the November IEP did not contain every recommendation that was discussed atthe IEP meeting, it was reasonably calculated to provided Lindsey with educational benefit. It istrue that a functional behavioral assessment was not ordered and the behavioral intervention planwas not revised, but the IDEA does not require these elements. In any event, the IHO orderedthat once Lindsey is placed in an appropriate school, “the staff shall re-assess the student’s IEP,conduct a functional assessment of the student’s current behavior and develop an appropriatebehavior intervention plan.” IHO Decision at 60. Furthermore, though specific durations werenot specified for related services, the IEP did state that Lindsey required those services, whichthis Court finds was sufficient. The preponderance of the evidence supports the conclusion thatthe November IEP contained all the required elements. In sum, the District satisfied its burden to provide Lindsey with a FAPE in both spring2003 and fall 2003. The District did its best to formulate and implement an IEP for a child witha complex disorder that is not fully understood even by scientific and educational experts. Whenexperts disagree as to how best educate a child, as they do in this case, the school district has toreview available information and data and exercise its professional judgment as to how best tocarry out the child’s education. See also Beth B., 211 F. Supp. 2d at 1027 (experts still have only 29 113
  • 102. a limited understanding of Rett Syndrome and studies are not sufficient to determine how best toeducate students with the disorder). Though the Court respects Lindsey’s parents’ disagreementwith the District’s judgment, the District complied with Rowley and the IDEA’s requirements,which is what the law requires. Beth B., 282 F.3d at 498 (“The Court’s rationale behind usingthis standard was to leave the selection of educational policy and methods where they havetraditionally resided - with the state and local school officials.”). Least restrictive environment requirement Our analysis does not end with the completion of the Rowley test. In fact, we have onlyjust arrived at what appears to be the central issue in this case, namely, whether the District’sproposed placement provides an education to Lindsey in the least restrictive environment. In addition to providing a FAPE, the IDEA obligates a school district to provide theFAPE in the least restrictive environment (LRE). The IDEA mandates that a child may only beremoved from a regular classroom setting only if “the nature of severity of the disability is suchthat education in regular classes with the use of supplementary aides and services cannot beachieved satisfactorily.” 34 C.F.R. § 300.550(b)(2). The LRE requirement manifests Congress’strong preference for mainstreaming disabled children. At the same time, it may create sometension with the school district’s responsibility to tailor each child’s educational placement to herneeds. In deciding whether the District’s decision to place Lindsey in a self-containedenvironment satisfies the IDEA’s LRE mandate, the Court cannot turn to the two-part Rowleytest for guidance. Beth B., 282 F.3d at 498 (Rowley applies only to the school district’s burden toprovide a FAPE; it does not apply to an analysis of whether the student received educational 30 114
  • 103. benefit in the regular classroom); Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036, 1045 (5th Cir.1989); Roncker v. Walter, 700 F.2d 1058, 1063 (6th Cir. 1983). The Supreme Court has not yetconstrued the LRE requirement. Beth B., 282 F.3d at 498. There is, however, a body of post-Rowley case law analyzing the LRE mandate. These cases have produced three distinct tests fordetermining compliance with the LRE provision. The Roncker test asks the court to determinewhat makes a segregated placement superior, and then determine whether the services that makethe segregated setting superior can feasibly be provided in a non-segregated setting. Roncker,700F.2d at 1063. The Holland test requires the court to consider several factors: educationalbenefits of mainstreaming; the non-academic benefits of mainstreaming; the effect ofmainstreaming on the regular classroom teacher and students; and the costs of mainstreaming.Sacramento v. Rachel H. by Holland, 14 F.3d 1398, 1400-01 (9th Cir. 1994). The Daniel R.R.test asks whether education in the regular classroom with the use of supplementary aids andservices can be achieved satisfactorily, and if it cannot, whether the school district’s placementmainstreams the child to the maximum extent appropriate. Daniel R.R., 874 F.2d at 1048. TheDaniel R. R. court stated the factors to be considered are not static, but that relevant factorsinclude whether the state has taken steps to accommodate the child in regular education; whetherthe child receives benefits from regular education; and the effect of the child’s presence on theregular classroom environment. Id. at 1048-49. The Seventh Circuit recently declined to adopt any of three LRE tests, explaining thatadopting a specific test was “unnecessary,” because the IDEA “provides enough of a framework”for determining LRE compliance. Beth B., 282 F.3d at 499. Rather than use a formal test, theSeventh Circuit stated that in determining the appropriateness of a school district’s decision to 31 115
  • 104. remove a student from a regular education placement, the following inquiry should be made: ifthe student’s education at the regular high school was satisfactory, the school district would be inviolation of the Act by removing her. If not, if its recommended placement will mainstream thestudent to the maximum appropriate extent, no violation occurs. Id. Thus, the Court’s LREanalysis will focus on whether Lindsey’s experience at Conant was satisfactory and whether theDistrict’s proposed change in placement mainstreams her to the maximum extent appropriate.7 There is more than sufficient evidence in the record to support the IHO’s conclusion thatLindsey’s education at Conant was unsatisfactory. The IHO based her decision in part on theSeventh Circuit’s decision in Beth B., as it is the only Seventh Circuit IDEA case dealing withRett Syndrome,8 and because the similarities between Beth B.’s and Lindsey’s experiences inregular education are striking. Like Lindsey, Beth B. had Rett Syndrome and attended her localmainstream school with the help of a special education teacher, two aides, and a work room. Shewas also nonverbal, required numerous AT devices, often had to be removed from class becauseof vocalizations, and was in class only fifty percent of the day. 7 Focus on whether the regular education was satisfactory and whether the proposedplacement is appropriate is also consistent with Rowley, in which the Court found that the word“appropriate” in the LRE provision “seems to reflect Congress’ recognition that some settingssimply are not suitable environments for the participation of some handicapped children.”Rowley, 458 U.S. at 197 n. 21. Similarly, the Seventh Circuit has stated that: [t]he Courts have determined that the Act’s mainstreaming preference is to be given effect only when it’s clear that the education of the particular handicapped child can be achieved satisfactorily in the type of mainstream environment sought by the challengers of the IEP proposed for that child.Lachman v. Illinois State Bd. of Educ., 852 F.2d 290, 295 (7th Cir. 1988). 8 The parties have cited no other appellate-level decision under the IDEA involving a childwith Rett Syndrome. 32 116
  • 105. The Seventh Circuit found that Beth’s education in the local school was unsatisfactorybecause her academic and developmental progress were virtually nonexistent, despite the use ofsupplementary devices, such as communication aids, a modified curriculum, and one-on-oneteachers and aides. Beth B., 282 F.3d at 499. Beth’s parents argued that she benefitted from hertime in the regular education setting because she made progress in improving somecommunication skills. The court held that this “modicum of developmental achievement” didnot constitute a “satisfactory education,” and thus the school district’s decision to place her in aspecial education environment was appropriate. Id. Lindsey’s experience at Conant was very similar to Beth’s. Lindsey was not makingmeaningful progress at Conant. Defendants argue that she made meaningful progress in spring2003 (when, they contend, the District was properly implementing Lindsey’s IEP) by meeting themajority of her IEP goals. This argument is unpersuasive. The evidence reflects that althoughLindsey may have been meeting goals in the spring, those goals were being met in her work roomwith instruction provided by her special education teacher, not in the mainstream educationenvironment. Vol. 21 at 2794. Indeed, school records reflect that Lindsey spent little time in theregular education environment in the spring and fall of 2003. In spring 2003, for example, therewere only two days in which Lindsey stayed in English class for the full fifty minutes. IHODecision at 24. There were many days in which she spent zero to ten minutes in English class.Id. at 24-26. In fall 2003, Lindsey’s class participation time did not improve, and her curriculumwas minimal compared to what the regular education class was covering. Id. at 40. Moreover,when Lindsey was in class, peer interaction was minimal, Vol. 20 at 227, and she was disruptiveto other students. Vol. 20 at 848. Therefore, as in Beth B., Lindsey was not mainstreamed in 33 117
  • 106. any real sense at Conant, in either the spring or fall of 2003, and she did not gain meaningfuleducational benefit from her exposure to the regular classroom environment. Beth B., 211 F.Supp. 2d at 1035, see also Vol. 20 at 848 (Scott Altergott, one of Lindsey’s regular educationteachers in fall and spring 2003, testified that Lindsey received no educational benefit in his classin either her sophomore or junior year). Rather, Lindsey was engaged in special education withinthe regular classroom.9 See id. As a result, the choice between placing Lindsey at Conant orplacing her in a multi-needs setting is “not really a choice between regular and special education,but between two forms of special education.” Id. Defendants argue that Lindsey’s situation is different from Beth’s, because Lindsey hasmuch greater cognitive ability and motor skills than Beth. Beth B., 211 F. Supp. 2d at 1024 (Bethwas largely wheel-chair bound and her cognition was estimated at one to six years). These are, infact, important factors to consider in determining the appropriate placement. But the differencesin cognition and motor skills between Beth and Lindsey, however, do not affect our conclusionas the IHO found that it was Lindsey’s behavior, not her cognitive or motor abilities, thatrequired a change in her placement. IHO Decision at 47.10 9 The Court’s conclusion is also consistent with the University of Chicago triennialevaluation of Lindsey, completed in 2002, which found: Despite the IEP and current placement [in Conant], Lindsey is functionally in a self- contained program. Despite the best efforts of staff and peers, Lindsey has few, if any, age-appropriate social interactions. However, the current program is only an approximation of a proper self-contained program as there are too many diversions and distractions to allow for proper behavioral management and training.Vol. 11 at 03790. 10 This conclusion was also reached by the triennial evaluation, which concluded that: 34 118
  • 107. Lindsey frequently displayed aggressive or disruptive behaviors in school in the fall andspring of 2003, including intense vocalizations, self injurious behavior, and head-butting staff. Itwas the existence of these behaviors in Lindsey’s case, but not Beth’s case, which led the IHO toconclude that Lindsey exhibited “Beth B. plus behavior.” IHO Decision at 60.11 Thepreponderance of the evidence supports the IHO’s characterization of Lindsey’s behavior.Lindsey’s regular education teachers testified that Lindsey vocalized every day in class in boththe fall and spring. Vol. 20 at 802. The vocalizations were disruptive to the class and oftencaused Lindsey to have to be removed. Vol. 20 at 804. In both the fall and spring, Lindseyexhibited substantial self-injurious behavior. In the spring, when defendants argue Lindsey wasparticipating successfully at Conant, defendants acknowledged that during the thirty five days sheattended school, Lindsey engaged in the following behaviors: ninety-three self-injuriousbehaviors, one attempted strike, six contacts, six attempted head-butts, one actual head-butt, andthirteen vocalizations. The school nurse evaluated Lindsey after two incidents and staff memberson four occasions. Vol. 6 at 2100 (school records documents 110 self injurious behaviors, one In all likelihood, Lindsey is capable of functioning at a much higher level than that which was observed during the current evaluation. While Lindsey has fundamental deficits associated with Rett’s Syndrome, it is her behavioral problems that are the most significant issue at the present time as they so dramatically interfere with her functioning. Even though she is said to be in an included setting in school, these behavior problems have led her to be functionally isolated in space and through the intervention of aides. This is not good for Lindsey. In order for her to be successful and be truly included in the social and academic world, her disruptive behaviors must be brought under control effectively and promptly.Vol. 11 at 03788. 11 As the IHO put it, “[e]very factor mentioned by the Seventh Circuit in Beth B. stronglyfavors a finding for the District. Furthermore, the student’s random aggressive and self-injuriousbehavior were not issues in Beth B.” IHO Decision at 60. 35 119
  • 108. attempted strike, fourteen strikes, twenty-four attempted head butts and two contacts, and thirty-one vocalizations). In the fall, Lindsey’s behaviors deteriorated. For example, on the day Dr. Winnegaobserved Lindsey, she saw Lindsey hit herself, a teacher, and an aide, and attempt to hit hermother. Vol. 21 at 1954-56. After observing Lindsey, Dr. Winnega came to the conclusion thather program at Conant should “come to a prompt end,” because Lindsey needed to placed insophisticated program that would provide a safe environment for Lindsey and the staff and thatwould have the means to carry out a sophisticated behavioral program. Id. at 1959. On the daythat Morris and Belgrade observed Lindsey, her vocalizations were “extreme, almost to the pointwhere class could not continue.” Vol. 20 at 230, 236. Furthermore, Powers testified that Lindsey’s vocalizations got worse as the school yearprogressed and were sometimes so intense that they disrupted nearby classrooms. Vol. 21 at1503-04, Vol. 20 at 231-232. Her regular education teachers testified that Lindsey’svocalizations disrupted the class and made it difficult for others students to present to the class.Vol. 20 at 228-29, 801 & 852. One teacher also testified that Lindsey had to be physicallyrestrained in his classroom because of disruptive behavior. Vol. 20 at 901. None of this should be construed, of course, to place blame on Lindsey. The behaviorsLindsey exhibited are a result of her having Rett Syndrome, a highly complex disorder that evenexperts in the field do not completely understand. Despite the best efforts of Lindsey’s familyand Conant staff and administrators, however, Lindsey’s behaviors have prevented her fromgaining any meaningful educational benefit from the regular classroom environment.Furthermore, a traditional high school like Conant lacks the environmental supports needed to 36 120
  • 109. assist Lindsey in controlling her behavior. IHO Clarification at 2. As Judge Moran noted in BethB., “some services may be feasible in regular education, but more effectively delivered in aspecial education setting.” Id. at 1030 (emphasis added)). The preponderance of the evidencesupports the IHO’s conclusion that Lindsey’s behavioral and education needs require a “highlystructured, self-contained setting” that has a “very strong behavioral training capability.” IHODecision at 60. The IHO recommended Lake Park High School as a school that has capability to handleLindsey’s needs and the Court supports this recommendation. Several experts testified that LakePark was appropriate for Lindsey, Vol. 21 at 2932 and 2275, because it has a sophisticatedbehavioral program. Lake Park has reverse mainstreaming opportunities, id. at 2276, and allowsfor integration into the regular education environment, such as eating lunch with regulareducation students. Id. at 2275, 2277. Therefore, Lindsey’s attendance at Lake Park HighSchool would still provide her with the chance to spend time with her regular education peers. Inupholding a similar type of placement, the Seventh Circuit in Beth B. stated that because theschool district’s proposed special education placement, included reverse mainstreaming and theopportunity to spend time with nondisabled peers, it was “at an acceptable point along the‘continuum of services’ between total integration and complete segregation.” Beth B., 282 F.3dat 499 (citing 34 C.F.R. § 300.551). The District’s proposed placement at Lake Park likewiserepresents an appropriate point along the continuum of services for Lindsey and satisfies theIDEA’s requirement that she be mainstreamed to the maximum extent appropriate. The Court has the utmost respect for defendants’ belief that Lindsey should be educatedwith her nondisabled peers. But parents, no matter how well-motivated they are, are not entitled 37 121
  • 110. to compel a school district to implement a specific placement in providing for the education oftheir child. Lachman, 852 F.2d at 297. The preponderance of the evidence supports theconclusion that Lindsey gained no meaningful educational benefit from her time at Conant andthat she would be better served in a multi-needs school, as proposed by the District. Settlement Agreement The Court determined that the settlement agreement between the District and defendantswas valid and enforceable in November 2003. Vol. 17 at 6054. The Court also held that theissue of whether the settlement agreement was breached was an issue to be decided by the IHO.Id. at 6052. As a result, one of the questions the defendants asked the IHO to decide waswhether the District violated the agreement by failing to develop appropriate IEP and failed toimplement necessary staff training in behavior management strategies. IHO Decision at 2. It is not clear from the IHO’s decision, however, that she ruled on the question of whetherthe District breached the settlement agreement. The Court will therefore decide the issue fromscratch. Defendants assert that the District violated § 4(b) of the Agreement, which required thatLindsey’s IEP include strategies for promoting engagement in social activities, if engagement insocial activities was recommended by the expert panel. Vol. 5 at 1954. The panel didrecommend socialization for Lindsey, but the District never incorporated a socialization goal inher IEP, nor did it encourage socialization. Vol. 21 at 2800. Defendants also contend that theDistrict violated section 4(b)(ii), which required the District to incorporate an updated technologyevaluation into Lindsey’s IEP. Vol. 6 at 1955. The evaluation was not completed forapproximately four months after the Agreement was signed. Vol. 13 at 04425. In addition, 38 122
  • 111. section 7 stated that the District was agreeing to encourage and support all means ofcommunication for Lindsey. Vol. 6 at 01957. Defendants argue that the District did not supportLindsey’s means of communication and did not develop new means of communication. Section5 of the Agreement required the District to develop a preliminary plan for Lindsey’s return toConant and to train staff working with Lindsey on behavior management and Rett Syndrome.Vol. 5 at 1956. Defendants assert that the training done in the fall of 2003 was too limited andthat no preliminary plans for Lindsey’s return in the spring were ever developed. Finally,defendants argue that the District violated the provisions of the Agreement which required theDistrict to consult with expert panel. Vol. 5 at 1959, 1950-52. The panel made severalrecommendations that, according to defendants, the District did not implement. Theserecommendations included a statement that Lindsey needed consistent staff and consistent accessto communication; defendants note that Lindsey had a new teacher and aides in the fall andcontend that these staff members did not provide Lindsey with consistent access tocommunication devices. Under general principles of common law, a party suing for breach of contract must proveshe was damaged by the breach. See, e.g., Green v. Trinity Int’l Union, 344 Ill. App. 3d 1079,1085, 801 N.E.2d 1208, 1213 (2003). Defendants argues that a breach of the settlementagreement in and of itself amounts to a denial of FAPE. Defs’ Mem. at 34. One of the casesthey cite supports this proposition but cites no authority. Reid v. School Dist. of Philadelphia,No. Civ. a. 03-1742, 2004 WL 1926324, *4 (E.D. Pa. Aug. 27, 2004). The other case defendantscite, E.D. ex rel. Dukes v. Enterprise City Bd. of Educ., 273 F. Supp.2d 1252 (M.D. Ala. 2003),says something altogether different: breach of a settlement agreement regarding special 39 123
  • 112. education entitles the non-breaching party to relief only if the breach results in a denial of FAPE.Id. at 1260. In so ruling, the court analogized a breach of a settlement agreement to a proceduralviolation of the IDEA. Id. In the Eleventh Circuit, a procedural violation entitles a plaintiff torelief only if resulted in harm. Id. (citing Doe v. Alabama State Dept. of Educ., 915 F.2d 651,663 (11th Cir. 1990)). Thus, the court in E.D. found that the Eleventh Circuit would similarlyfind that a violation of a settlement agreement results in a violation of FAPE only if it results inharm to the student. The Court believes the approach taken in E.D. is the appropriate one in thiscase, particularly in light of the fact that the Seventh Circuit, like the Eleventh Circuit, has heldthat a plaintiff is entitled to relief for procedural violations of the IDEA “that result in the loss ofeducational opportunity.” Michael M., 356 F.3d at 804 (7th Cir. 2004). The primary purpose ofthe settlement agreement was to put the parties’ past disputes behind them and to put in place aprocess for ensuring that Lindsey received a FAPE. Under these circumstances, as was the casein E.D., the Court does not believe that a breach of the settlement agreement, without someshowing of harm consisting of loss of a FAPE, entitles the defendants to relief. Though the District may not have complied with the precise letter of every singleprovision of the settlement agreement, the totality of circumstances show that the IEP itformulated and carried out for Lindsey was reasonably calculated to provide her with educationalbenefit. Rowley, 458 U.S. at 207. The Court has already explained that the four month delay inthe AT evaluation did not impair Lindsey’s education at Conant in the spring or fall of 2003.Likewise, the fact that Powers and her aides may not have provided Lindsey with acommunication device in every possible situation did not result in Lindsey being denied a FAPE. Other violations of the agreement alleged by defendants were the result of changing 40 124
  • 113. circumstances. A settlement agreement regarding a child’s IEP must be flexible to be consistentwith the changing needs of the child. W.L.G. v. Houston County Bd. of Educ., 975 F. Supp.1317, 1329 (M.D. Ala. 1997) (IDEA requires that an IEP be revised no less than annually,therefore, “a settlement will most often be tentative only, for it must always be subject to change”to meet the needs of the disabled child). The District had to act not only in compliance with theagreement, but also had to make Lindsey’s IEP work under changing circumstances. Forexample, defendants argue that the fact that Lindsey had a new teacher and new aides in the fallviolated the agreement, because the expert panel advised the District that Lindsey neededconsistent staff. The reason Lindsey had a new teacher in the fall, however, had nothing to dowith any non-compliance of the District; rather, Lindsey’s spring 2003 teacher, Jean MansfieldLink, chose to leave Conant for another job. When Link left, the District decided not to rehireLink’s aide, which was reasonable based on the aide’s record of absences. Vol. 21 at 2434. Inaddition, defendants argue the District violated the agreement by failing to promote socializationand socialization groups, such as Circle of Friends, for Lindsey. The reason the District did notinclude Lindsey in groups like Circle of Friends was that staff working with Lindsey did notthink it was safe, considering her erratic and sometimes aggressive behavior. Vol. 21 at 1684;Vol. 20 at 851. This, too, was a reasonable determination. In short, though the District may not have carried out certain provisions of the settlementagreement to the letter, Lindsey was not harmed and was not denied a FAPE as a result of thesefailures. Defendants therefore are not entitled to any relief based on their claim the settlementagreement was breached. Procedural challenges to the IHO’s Decision 41 125
  • 114. Defendants argue that the IHO made significant errors requiring reversal of her decision,including making improper credibility determinations, failing to address all of the issues raised atthe hearing, misapplying the burden of proof, disregarding testimony without explanation,preventing defendants from presenting evidence of a hostile environment at Conant, committingimproprieties during the hearing, and allowing a particular expert to testify on the District’sbehalf. 1. Claims relating to the IHO’s treatment of testimony and issues in her opinion Defendants seek to challenge the IHO’s decision on the ground that she failed to addressall of the issues and testimony raised at the hearing. This challenge is without merit. The IHOwrote a detailed sixty-two page opinion and a three page clarification in which she thoroughlyaddressed the relevant witness testimony. The IHO had the opportunity to observe the witnessesand use her experience to make credibility judgments. The fact that the IHO credited somewitnesses over others and chose not to address every witness’ testimony in her opinion is not abasis to overturn her decision.12 The bottom line is that there is more than enough evidence andtestimony to support the IHO’s decision, including her credibility determinations. Furthermore, 12 Defendants cite Blount v. Lancaster-Lebanon Intermediate Unit, No. 03 C 579, 2003WL 22988892 (E.D. Pa. Nov. 25, 2003) as standing for the proposition an IHO’s decision shouldbe overturned if the IHO disregarded some testimony and adopted other testimony withoutexplanation. The outcome in that case, however, was based on the court’s determination that theIHO ignored the burden of proof and the failure to “make credibility determinations among thevarious witnesses and contrary expert opinion.” Id., *12. Blount does not govern the presentcase, for several reasons. First, as will be discussed, the IHO did properly state and apply theburden of proof at the hearing. Second, the hearing in Blount was only three days and consistedonly a few witnesses. The hearing in the case was forty-two days and consisted of over twentywitnesses. It would impose an undue burden to require the IHO to explain in fine detail each andevery witness’ testimony, her assessment of its credibility, and how it contributed to herconclusion. Finally, the IHO did address contrary opinions in her decision. The fact that she didnot credit those opinions does not undermine her decision. 42 126
  • 115. the witnesses she did credit included two of three members of the expert panel and teachers whohad worked with Lindsey. Contrary to defendants’ contentions, these were witnesses who hadspecific experiences working with Lindsey at school, at home, and in a clinic. See Heather S. v.State of Wisconsin, 125 F.3d 1045, 1058 (7th Cir. 1997). Defendants argue that the IHO also failed to address all of the issues defendants raised.At the prehearing conference with the IHO in December 2003, defendants raised the followingissues for consideration: 1. The parents allege that the District violated the settlement agreement in several ways,including failing to develop an appropriate IEP, failing to properly train staff, and failing tofollow advice from the expert panel in developing and implementing behavior analysis andintervention plans; 2. The parents allege that the least restrictive environment for Lindsey is Conant, andtherefore by removing her from Conant, the District has violated the IDEA; 3. The parents allege that the District excluded Lindsey from using the Conant swimmingpool; and 4. The parents allege that at no time subsequent to the settlement agreement did theDistrict provide Lindsey with a FAPE.IHO Decision at 1-2. The IHO directly addressed the issue of Lindsey’s placement and IEP development. Aswe have discussed, the IHO did not directly address the issue of the settlement agreement. TheIHO likewise did not address Lindsey’s exclusion from the pool. And finally, defendants assertthat the IHO improperly bypassed a FAPE determination and proceeded directly to an LREdetermination. Defendants argue this violated their right to present complaints regardingLindsey’s FAPE. 20 U.S.C. § 1415(b)(1)(E); ILCS § 5/14-8.02(a). Though the IHO may have failed to address directly some of the issues raised at thehearing, this is not grounds to overturn her decision. Defendants were not deprived of their due 43 127
  • 116. process rights. The defendants were given a forty-two day hearing in which both parties hadextensive opportunities to present their arguments and testimony. 2. Burden of proof Defendants argue that the IHO’s decision should be overturned because the IHOmisapplied the burden of proof. At the administrative level, the school district bears the burdenof proving that the proposed IEP complies with the IDEA. According to defendants, the IHOimproperly shifted the burden of proof to them as Lindsey’s parents. Defendants argument fails because it is based on a misunderstanding of the meaning ofthe District’s burden of proof at the administrative hearing. The District did not have to provethat its placement was superior to Lindsey’s prior placement at Conant. See, e.g., Beth B., 211 F.Supp. 2d at 1028 (“The district does not have to prove its placement is pedagogically superior tothe parents.”). Rather, the District had the burden of showing that its placement was likely tobenefit Lindsey. The District presented more than enough evidence to satisfy its burden,including the testimony of two of the three members of the expert panel, Lindsey’s regulareducation teachers, and school administrators. 3. Claims related to procedural errors Defendants argue that the IHO committed a significant procedural error when she allowedthe District to present testimony from Richard Van Acker. Dr. Van Acker studies RettSyndrome at the University of Illinois at Chicago. Van Acker was permitted to testify, but onlywith regard to Rett Syndrome, not Lindsey in particular. The root of defendants’ concern aboutVan Acker is his testimony in the Beth B. case. In the Beth B. administrative hearing, Van Ackertestified for the school district in favor of a segregated placement. When the District and 44 128
  • 117. Lindsey’s parents were engaged in settlement negotiations in fall 2002, the parents made it clearthat they did not want the District to be able to consult Van Acker in regards to Lindsey’s case inany way. Vol. 5 at 1937. The District, however, refused to agree to a provision in the settlementagreement that would prevent them from working with Van Acker. Vol. 5 at 1939. Defendantsargue that the District made a “side settlement agreement” when attorneys for the District wrotein a letter to attorneys for defendants that “Dr. Van Acker is not now involved; is not on ourwitness list; and has not been contacted concerning this case. However, we will not agree tolanguage barring consultation of any expert we want to use. If anyone new comes up vis a visLindsey, we’d have to notify your clients and get their permission anyway and everyone knowsthey won’t give their permission for Van Acker.” Vol. 5 at 1939. The settlement agreementprovides, however, that the “parties agree that each party is entitled to use whatever qualifiedexpert or experts that party trusts and with whom the party feels comfortable.” Vol. 5 at 1960.Thus, the settlement agreement itself does not bar the use of Dr. Van Acker’s expertise. Theletters between counsel were written before the settlement agreement and do not constitute aseparate settlement, or “side agreement,” as it was referred to by defendants. See Vol. 5 at 1963-64 (settlement agreement represents parties’ complete understanding, and all prior agreementsare merged therein). The District’s use of Dr. Van Acker’s testimony regarding Rett Syndromedid not violate the settlement agreement.13 Finally, defendants argue that the IHO improperly prevented defendants from presentingevidence of past behavior of District 211 administrators which allegedly would have shown its 13 The Court in no way relied upon Dr. Van Acker’s testimony in coming to the conclusionthat the District’s placement decision was appropriate. 45 129
  • 118. bad faith in implementing Lindsey’s program. This argument is based on the IHO’s rulings toexclude testimony of Ed Rafferty, the Superintendent of School District 54, where Lindseyattended elementary and junior high schools, and to exclude evidence of the ISBE rankings ofIllinois school districts, which allegedly would have shown that District 211 is one of the leastinclusive districts in the state. Defendants’ argument regarding Ed Rafferty is a non-starter, as this Court alloweddefendants to depose Rafferty after the hearing and admit his deposition along with Lindsey’sschool records from district 54 into the record. The Court reviewed Rafferty’s testimony andconcluded that it did not require the IHO’s decision to be overturned. Defendants, therefore,were not prejudiced by the IHO’s decision to exclude Rafferty’s testimony. Finally, the IHO’s decision to exclude the ISBE rankings was also appropriate. The IHOwanted the hearing to focus specifically on Lindsey and her unique experience at Conant.Because the purpose of the hearing was to determine the appropriateness of Lindsey’s placement,the IHO’s decision was not unreasonable and does not warrant reversal of her decision. ADA and Section 504 claims Defendants claim that in addition to violating the IDEA, the District also violated theAmericans with Disabilities Act and section 504 of the Rehabilitation Act. The Court’s rulingthat the District did not violate the IDEA in placing Lindsey in a self-contained, special educationsetting also requires denial of defendants’ ADA and Rehabilitation Act claims. In addition, asthe District argues, defendants have offered no evidence from which a fact finder reasonablycould determine that the District intentionally discriminated against or failed to accommodateLindsey based on her disability. See Beth B., 211 F. Supp. 2d at 1035. 46 130
  • 119. Third Party Defendant Illinois State Board of Education The defendants brought a third party claim against the Illinois State Board of Education,charging the ISBE with violating the IDEA, the Americans with Disabilities Act, and Section 504of the Rehabilitation Act of 1973, by failing to ensure that School District 211 complied with theLRE mandate of the IDEA and by failing to provide a fair administrative hearing process.Because the Court has found against defendants on their claims of noncompliance by District211, defendants likewise cannot prevail on their claims against the ISBE. Conclusion For the reasons stated above, the District’s motion for summary judgment [docket no. 44]granted, and defendants’ motion for summary judgment [docket no. 69] is denied. Defendants’motion to strike [docket no. 91] is granted. Third party defendant’s motion to dismiss [docketno. 59] is terminated as moot. The Clerk is directed to enter judgment in favor of the plaintiffand the third party defendant, and against the defendants. ____________________________________ MATTHEW F. KENNELLY United States District CourtDate: August 15, 2005 47 131
  • 120. The Lindsey R. Case:Increased Stability forParents and Districts BROOKE R. WHITTEDWHITTED, CLEARY & TAKIFF LLC Suite 303 3000 Dundee Road Northbrook, Illinois 60062 847/564-8662 847/564-8419 (FAX) 132
  • 121. The 7th Circuit Appeals Court has brought stability to certain important areas ofspecial education law. This stability will benefit parents, districts, and students in thefuture. We would like to call your attention to the Seventh Circuit Federal AppellateCourt decision of Board of Education of Township High School District 211 v. Michaeland Diane Ross et al., decided on May 11, 2007. This was an appeal of Federal courtdecision filed by the Hon. Matthew Kennelly on August 15, 2005, in which the schooldistrict prevailed on a so-called “full inclusion” issue. The administrative hearing phaseof this case took forty-two days over a span of seven months, resulting in a writtenAdministrative decision in excess of sixty pages. There were over 10,000 pages oftranscripts and a like amount of documentary evidence. The Appellate Court referred tothis case as “Ross I” because shortly after the issuance of Judge Kennelly’s opinion infavor of the school district, the family, on behalf of the student who had by then reachedher majority, sued the parties again. This second case was decided by Judge Plunkett,again in favor of the school district and was also appealed, resulting in a second opinionby the Appellate Court, issued the same day as Ross I, and labeled by the Court as “RossII.” The appellate panel in both Ross I and Ross II held in favor of the school district,however the decisions solidified areas of the special education law that will favor bothparents and districts going forward. In this case, we represented School District #211 and the central issue was the “fullinclusion” of a profoundly delayed student with severe disabilities. It is ourunderstanding that Ross I was the longest special education hearing ever held in any state,even though the record is replete with numerous attempts by the school district to settlethe matter.1 The Appellate Court in Ross I held that trial Judge Matthew Kennelly wascorrect in his support of the administrative hearing officer’s detailed and comprehensivedecision in favor of the school district. The Appellate Court outlined the facts of the case, stating that the student is a girl withRett Syndrome, the effects of which are apraxia (speech, hand, and gross motormovements) and significant and profound cognitive delays. She is nonverbal and requiresappropriate assistive technology for communication. The student also suffers fromnumerous medical ailments, some of which require periodic hospitalization.Uncharacteristic to Rett Syndrome generally, the student was also unintentionallyaggressive to herself and other staff members, resulting in frequent and significantinjuries. As can be seen in the attached decision, which is similar to the Beth B. Federalappellate decision, the school district went to extraordinary measures in an attempt todefer to the parents’ wish to have their daughter educated in a mainstream environment.However, after nearly three years of trying, due to the student’s extensive and unique1 For example, the parents rejected numerous offers of full payment for private facilities both on and off the ISBE stateapproved list of nonpublic facilities nationwide, stating they wanted their daughter to be “fully included” rather thanplaced in a program geared to intensively teach the functional skills the district personnel sincerely felt she needed tolearn. 133
  • 122. disabilities, district staff determined that she desperately required more intensiveprogramming than could be provided in the traditional high school classes preferred bythe parents. The district decided to take a principled position over and above parentalobjections and recommended that she be placed in a self-contained, multi-needsclassroom, at full district expense, after numerous offers of appropriate privateplacements were rejected. The parents disagreed with this recommendation, asserting thatthe school district should create an appropriate program for the student in her “homeschool,” and insisted that she be educated “within her own community.” This was aclassic “full inclusion” dispute. The Appellate Court described the staff’s ethical expression of conscience that waspresented at an IEP meeting in August 2003:2 By the end of her ninth grade year…staff members who worked closely with Lindsey sincerely believed she was receiving virtually no educational benefit in the mainstream. Based on these beliefs, public school personnel recommended a placement at a separate school designed to appropriately meet Lindsey’s needs. [T]he belief among District #211 staff that Lindsey is not being appropriately served in the mainstream still exists…However, staff is also advised by legal counsel that the settlement agreement continues to control and therefore they will in good faith implement whatever IEP is agreed upon today. Were it not for the settlement agreement, as a matter of conscience, public school personnel would continue to recommend an appropriate public or private self-contained setting. The parents interpreted this statement as a “predisposition” of the IEP by school staff.In fact, the Appellate Court took it as it was: a sincere expression of concern on the partof the staff that the controlling settlement agreement was forcing them to make arecommendation that they felt ethically they could not make without explanation. At the conclusion of the exceptionally lengthy administrative proceedings, thehearing officer thoroughly considered all of the evidence and held for the District that aself contained multiple needs program was the minimally restrictive and appropriateplacement where the student could receive a free and appropriate public education.Subsequent to publication of the case by LRP, parents appealed at the Federal court level,and Judge Matthew Kennelly, in a written opinion, supported the hearing officer,dismissing the parents’ claims.3 Parents then appealed the decision to the Seventh Circuit,which resulted in the attached opinion.4 In parallel with Lindsey I, another lawsuit wasfiled against District 211 and certain individuals shortly after the trial level decision wasfiled by Judge Kennelly. This action was ostensibly on behalf of the student, who hadreached her majority and allegedly had decided to proceed independently, even though2 This statement was drafted by Brooke Whitted during a break in the IEP meeting after staff expressed their heartfeltconcern that their decisionmaking was being guided by an active settlement agreement which was compelling them torecommend a placement they did not feel was appropriate.3 Board of Educ. of Tp. High School District No. 211 v. Ross, 105 LRP 40802 (N. D. Ill. Aug. 15, 2005)4 Board of Educ. of Tp. High School District No. 211 v. Ross, 2007 WL 1374919 (7th Cir. 2007) 134
  • 123. there were serious questions about her capacity to do so. Judge Plunkett, in anotherwritten opinion, also held for the school district on the basis that they had already hadtheir day in court in Lindsey I and shouldn’t be given another bite of the apple.5 Thisdecision was also appealed by the student and her parents, which resulted in a secondAppellate Court decision in favor of the school district.6 Both cases are significant forparents and schools for the reasons examined below.Implications of Ross II – Finality of Settlement Agreements Shortly after the District Court issued its opinion in Ross I, Lindsey and herparents filed a second federal suit against the school district, its Director of SpecialEducation, and a medical expert who appeared in the administrative hearing for thedistrict. Damages were sought, however the second case arose from the same facts as thefirst case. The only difference was that Lindsey had reached her majority, and wasostensibly suing on her own behalf with her parents as her next friends. Judge Plunkettheld in favor of the school district based on claim preclusion and the Appellate Court inRoss II affirmed. The Ross II case is a positive development for both parents and school districts inspecial education cases. In the case of parents as plaintiffs, often school lawyers arereluctant to settle special education matters because, they argue, a student can reach his orher majority and sue the district all over again on his or her own behalf. The Ross II caseputs this argument to rest and conforms this issue to the well established federal policy ofencouraging non-court resolution of special education disputes. Likewise, schooldistricts need no longer worry (in this jurisdiction) about the adult former student comingafter them even after the parents have sued previously. In other words, Ross II benefitsboth parents and school districts by bringing increased stability and finality to settlementagreements entered into by parents on behalf of their children. The Seventh Circuit hasmade it clear that once parents bring such actions, the student is precluded from havinganother bite of the litigation apple once he or she becomes an adult. Current case law nowmore strongly encourages amicable settlement in conformity with the IDEIA policy.Implications of Ross I – Parental Participation and LRE The Ross I case is quite complex due to its chronology and the controllingsettlement agreement that led to the administrative hearing being held, pursuant to aFederal court order, in the first place. We will not summarize the full chronology of thecase here but suggest a close reading of the attached opinion for those who are interested,especially pages 4-9. The court mentions that the administrative hearing officer(hereafter “IHO”) held that the parents were maximally involved in the IEP process,including its implementation and modification – contrary to the position of the parents.This is in full compliance with the Rowley case in which the US Supreme Court required,as far back as 1982, that parent involvement must be maximized. The court compares the5 Ross v. Board of Educ. of Tp. High School Dist. 211, 2006 WL 695471 (N. D. Ill. Mar. 14, 2006)6 Ross ex rel. Ross v. Board of Educ. of Tp. High School Dist. 211, 2007 WL 1374863 (7th Cir. 2007) 135
  • 124. facts in Ross I with the Target Range case (where the IEP was prepared without anyparent participation) and concludes Ross I is a “far cry” from Target Range. The court also makes short work of the parents’ arguments that the school districtwas biased from the beginning due to the statement of conscience (outlined above) aswell as the fact that the district had a lawyer positioned at the courthouse and ready tofile, depending on what the IEP participants decided. The court felt that the statement ofconscience was just that, and that the lawyer-at-the-courthouse argument did not have thesinister meaning the parents attached to it. Finally, the court deals with the least restrictive environment (“LRE”) issue inwhich parents argued that as long as Lindsey is receiving “some benefit” she must bekept in the mainstream. The court said this was not enough, and instead asked whethereducation in the conventional school was satisfactory, and if not, whether reasonablemeasures would have made it so. The court listed some examples of how the schooldistrict attempted in good faith to serve Lindsey educationally, concluded that these wereproper attempts, and that the decision to move the student to a more restrictive settingcomplied with relevant statutes and decisional case law. It is clear that in this jurisdiction, with Ross I and the Beth B. cases, the LREdefinition is not education with nondisabled students to the maximum extent possible.LRE in the Seventh Circuit means education to the maximum extent appropriate, withappropriate being the controlling term.Conclusion Ross I and Ross II bring increased stability to two special education areas. In theLRE area, the Seventh Circuit takes a common sense approach and unequivocally rejectsthe complicated multi-tiered tests developed in other circuits. An LRE analysis is nowsimpler and more concrete and easy for both educators and parents to comprehend andimplement. In the public policy area, Ross II lays to rest the possibility that a studentwhose parents have prosecuted a hearing or settled a special education claim on his or herbehalf could, upon reaching majority come back after a school district on the same issues.This lends stability to decisions made by hearing officers and judges and encouragessettlement agreements because all claims will be fully resolved with no doubts about thefuture. Both cases are therefore quite beneficial for all parties in special education casesgoing forward. One final point deserves mention. While these cases concern a public schooldistrict, the reasoning is consistent with cases involving private schools, where plaintiffsseek to force these institutions to change in some fundamental way. Courts will notgenerally support such efforts in either the public or private sector as long as the facilityis otherwise legally compliant. We feel the Ross cases help to bring clarification andstability to both public and private sectors on this issue.N:General OfficeMemorandumsLR Summary (5-07).doc 136
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  • 127. MEMO To: Clients From: BRW Date: 02/24/10 Re: Public Act 96-0657, Observation of Programs by Parents and Experts Enclosed please find excerpts from the above captioned new law, effectiveAugust 25, 2009. You probably are already aware that public school districtsmust allow observation by parents and their retained experts or other qualifiedprofessionals. There is an evolving procedure for submitting requests forobservation in writing, then agreeing to an appropriate time for the observation.These procedures, as they continue to be adopted by school districts, should notbe so rigid or constrained that the observation is rendered meaningless. Theschool district should be reasonably flexible in allowing observations that, ofcourse, are not disruptive and that do not interfere with the education of otherstudents. This law does not apply to private schools. Please feel free to contact me if you have any questions.BRW/rxmEnclosureN:General OfficeBRWMemos02-24-10 BRW Memo to Clients.doc 139
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  • 154. WHAT IS AN FBA/BIP? It is an evaluation, and therefore school districts must follow IDEA’s provisions concerning evaluations for FBA/BIP. U.S. District Court, District of Columbia – Harris v. District of Columbia, 561 F. The U.S. District Court of the District of Columbia found that a functional behavioral Supp. 2d 63 (DDC 2008) plan is an “educational evaluation,” and therefore the parents have a right to an independent functional behavioral analysis at the public’s expense if the parent disagrees with the school district’s evaluation. The court was persuaded by the parent’s argument that an FBA is considered an “educational evaluation” because it is central to the development of the IEP. The district court rejected the school district’s contention that the FBA is merely a tool to help students with behavioral, not educational, problems. The district court’s decision is consistent with other recent decisions that decline to distinguish behavioral from educational problems.FUNCTIONAL BEHAVIOR ASSESSMENTS AND BEHAVIOR INTERVENTION PLANS: WHEN ARETHEY NECESSARY? Not Necessary Involuntary Behavior Northern District of Indiana – Stanley C. v. MSD of Southwest Allen County In this case, the Northern District of Indiana held that the school corporation did not Schools, 628 F. Supp.2d 902 (N.D. Ind. 2008)) violate the IDEA in failing to conduct a FBA or devise a BIP for drooling. The Court found that the student’s excessive drooling was not a voluntary behavior that required a BIP and, furthermore, even if she did, her “behaviors” were properly addressed via her IEP goals. The Court relied on the fact that, the evidence and testimony of record from both parties supports the BSEAs conclusion that M.C.s drooling was not a behavior to replace but rather was involuntary as a result of damage to her brain from her stroke. Necessary Even if interventions in Place Eastern District of New York – Danielle G. v. New York City Department of Education, 50 IDELR 247 (E.D. NY. 2008) 168
  • 155. The New York Federal Court held that a student’s problematic behavior triggered a school district’s duty to conduct a FBA, even though the student’s teacher was able to redirect the student at times. In this case Danielle, a second grader and a student diagnosed with Autism Spectrum Disorder, frequently became lost in her own thoughts and “finger play.” The special education itinerant teacher working with her was able to redirect Danielle when her focus strayed from classroom lessons. Although this teacher was able to manage the student’s behavior and help her refocus, Danielle still had difficulty completing assignments and organizing her books. The court relied on the plain language of the IDEA stating the IEP team must, “in the case of a child whose behavior impedes the child’s learning or that of others,” consider the use of positive behavioral interventions and supports, and other strategies to address that behavior. Because Danielle engaged in self-stimulatory activity and was hyperactive, her behaviors impeded her learning and therefore an FBA was required.Even if Behaviors are “Typical” For Disability Administrative Hearing – Freemont Unified School District, 109 LRP 23265 An administrative law judge in California ordered a school district to reimburse (California State Educational Agency, February 20, 2009) parents for the cost of their unilateral placement after finding the district failed to assess the three-year-old’s behavior and develop a behavior intervention plan. The hearing officer found that a three-year-old child with Autism was engaging in tantrums at school related to his disability. The school district placed the child in a special day class, however the tantrums continued. The parents placed the student at a private school after the district refused to provide additional services. The district argued that a behavioral assessment is unnecessary because the behavior was typical for a preschooler with autism. However, because the student’s behavior was related to his disability and impeded his ability to receive educational benefit, the hearing officer found the failure to develop a functional behavioral intervention plan deprived the child of an appropriate education under the IDEA.When behaviors impede a student’s ability to access educational benefit Administrative Hearing – Redlands Unified School District, 49 IDELR 294 A California school district committed a procedural violation by failing to conduct a (California State Educational Agency, March 17, 2008) functional behavioral assessment and develop a behavioral intervention plan. This procedural violation amounted to a denial of a FAPE because it deprived the student of educational benefit. The hearing officer found that because an Autistic student’s problem behaviors ultimately prevent him from attending school, the failure to develop a behavioral intervention plan amounted to a denial of FAPE. In this case, the student’s 169
  • 156. behaviors did not decrease during the school year despite other interventions by the district and, in fact, the student’s behaviors escalated. By the end of the year, the student was under so much stress that he “curled up in a ball position on the floor of his classroom and would not voluntarily get up.” As a result, the school district was ordered to provide compensatory education in the form of 430 hours of tutoring over the next two years and 25 hours during any ESY period that occurs during the next two years. In addition, the school district was ordered to provide 390 hours of Lindamood-Bell instruction to the student during school vacations or other times the school is in recess for more than a week. The district was also ordered to provide 25 hours a week of in-home ABA services for the upcoming school year for a total of 50 weeks. Finally, the district was required to contract with a qualified independent evaluator who would administer a FBA to the student.WHAT ARE THE REQUIREMENTS OF A FBA/BIP? Must target all of the student’s behavioral needs Administrative Hearing – Department of Education, State of Hawaii, 5 ECLPR An independent hearing officer held that Hawaii Department of Education has to 127 (Hawaii State Educational Agency, March 6, 2008) reimburse a five-year-old’s parents for the private school expenses and for the 1:1 aide they hired to help ease the child’s transition to kindergarten because of a deficient BIP. While the district did create a functional behavioral assessment and behavioral intervention plan, it failed to mention the child’s anxiety, hyperactivity and attention difficulties. “The FBA did not target all of the child’s behavioral needs and did not address serious behaviors that could affect the child’s learning and the learning of the child’s classmates.” The parent prevailed in this case because the school district did not follow their own evaluations (BASC Survey), showing that the student had a variety of serious behavioral concerns. Each of the behavioral concerns impacted the student’s learning and behavior in the classroom. Since the FBA did not target all the student’s behavioral needs, the IEP was found not to provide the student with a free appropriate public education and, therefore, the district had to reimburse the parents for tuition for their private school. Jaaccari J v. Board of Educ. of City of Chicago, 690 F. Supp. 2d 687, 700-01 (N. D. A school district’s alleged failure to properly record disciplinary incidents involving Ill. 2010) special needs student did not constitute a procedural violation of the IDEA, absent any statutory or regulatory provision requiring such documentation. 170
  • 157. Must be sufficiently specific Administrative Hearting – New York City Department of Education, 49 IDEL A New York school district was found to have violated the IDEA by failing to collect 270 (New York State Educational Agency, February 7, 2008) enough data and provide enough specificity concerning this child’s target behaviors. Since the behavioral intervention plan did not state the frequency, duration, or intensity of these behaviors, nor did it describe the conditions or events that appeared to trigger the child’s outburst, the behavioral intervention plan was determined to be too vague to provide the student with any assistance. The administrative hearing officer also took issue with the behavioral intervention plan because it did not describe appropriate behavioral interventions and instead stated that “the child would stop screaming hitting himself and tensing his muscles.” As a result, the child could not receive a “meaningful educational benefit” per Rowley.Must have a Plan or Strategy to Improve Behavior In re Student with a Disability, 49 IDELR 147 (Indiana State Educational An independent hearing officer found a district’s failure to develop appropriate Agency, January 3, 2008) behavioral interventions for a student with Autism amounted to a denial of FAPE. The student was placed in mainstream classes with two periods of special education support services each day. In this setting, the student engaged in disruptive and aggressive behaviors. While the hearing officer took no issue with the student’s placement, she did fault the district for failing to conduct a meaningful functional behavioral analysis. In this case, the district merely enforced a “point system” that rewarded the student for good behavior while penalizing the student for inappropriate behavior. The hearing officer stated, “It was not enough to report that the behavior occurred and describe it; the purpose of an FBA is to dissect the behavior so as to plan the most effective method of eliminating it.” The hearing officer ordered the district to conduct an appropriate FBA and develop an appropriate BIP for the student.Must be Updated to Meet a Student’s Worsening Behavior Lakeland School District, 111 LRP 70768 (Pennsylvania State Educational A Pennsylvania district had to provide compensatory education services to a high Agency, October 28, 2011) school graduate for failing to provide FAPE during the students junior and senior school years. The student with ADHD and learning disabilities had been receiving special education services since seventh-grade. By the students ninth-grade year, 171
  • 158. teachers expressed concerns about the students problematic behaviors including disrupting class, eloping, and verbal aggression. The districts IEPs didnt specifically address these behaviors. The students behaviors progressively worsened. And, during the students junior and senior years, the student had numerous unexcused absences and poor academic performance. After the student graduated from high school, the students parents filed for due process alleging denial of FAPE. An IHO explained that pursuant to both 20 USC § 1414(d) and 34 CFR § 300.324, in order to provide FAPE, districts must develop IEPs that are responsive to a students identified educational needs. The IHO noted that this district was unquestionably aware that the students behavioral problems impacted the students learning. Several evaluation reports reflected that the students abilities were in the average range but that the students behavior impeded educational success. The IHO pointed out that the IEPs did not address the students problematic behavior. The clearly ineffective BIP from 2006 was not revised as the behaviors and absences worsened during the 2007-08 and 2008-09 school years, nor was there an attempt to develop a positive behavior support plan or to make a comprehensive inquiry into why Student was not attending school. The IHO posited that the students excessive unexcused absences did not justify the districts failure to address his behavior but rather, it made the omission "glaring." Moreover, the IHO observed that the students numerous unexcused absences should have alerted the district that the student might have had additional unmet needs Thus, the IHO concluded that the districts prolonged failures to address the students educational needs warranted provision of compensatory educational services even though the student had already graduated.DISCIPLINARY ISSUES FOR STUDENTS WITH DISABILITIES Relationship Between Misconduct and Disability Violations regarding drugs Lancaster Elementary School District, 49 IDELR 53 (California State Educational Agency August 28, 2007) The hearing officer found that the student’s learning disability was not related to student’s drug offense (marijuana and tobacco). The hearing officer rejected the student’s claim that frustration with schoolwork prompted him to bring drugs to school. AND . . . Los Angeles Unified School District, 111 LRP 60703 (California State Educational Agency August 15, 2011) 172
  • 159. A 15-year old student with ADHD was unable to convince an ALJ that a MDR teamerred in finding that his sale of a prescription drug to another student was not theresult of impulsivity caused by his disability. The student had previously engaged inconduct in school thought to be manifestations of his disability. Those misbehaviorsincluded fights with other students, class disruptions, yelling inappropriatecomments in class, insulting staff and peers and bullying. When the district learnedof the students sale of the prescription drug to another student, which violated theschool code, it initiated a pre-expulsion meeting in which it made a manifestationdetermination. The district considered expert opinion, the IEP, teacherobservations, the relevant portions of the students records, and information fromthe parents. Based on the circumstances surrounding the misconduct, the districtdetermined that the students misconduct was not a manifestation of his studentsSLD. The student initially planned the details of the sale with another student, wenthome, and brought the drug back the next day to complete the sale. This conduct,the district determined, was the result of premeditation rather than impulsivitycaused by the students ADHD. The parents initiated due process to contest thedistricts determination that drug sale was not a manifestation of the studentsdisability. Federal regulations, implementing 20 USC § 1415(k)(1)(E), mandate thatthe essential attendees at a manifestation determination meeting review all relevantinformation in a students file, including the IEP, teacher observations, and relevantinformation from parents in determining whether the conduct at issue was causedby, or had a direct and substantial relationship to, the students disability. Due inpart to the contrast between the students misconduct deemed manifestations of hisdisability and the conduct at issue in this instance, the California ALJ agreed with thedistricts contention that the students drug sale was premeditated and deliberaterather than a result of impulsiveness triggered by ADHD. The ALJ decided that thedistrict complied with federal regulations in its organization and administration ofthe manifestation determination meeting and the student was unable to show thatthe determination was incorrect. Thus, all relief sought by the student was denied.BUT SEE . . .San Diego Unified School District, 52 IDELR 301 (California State EducationalAgency July 29, 2009)For several days prior to an incident involving a drug sale, a 13-year-oldstudent with ADHD acted as a “middle man” in the sale. The student was not takinghis medication during this time. A hearing officer found that the student’s ADHDrelated impulsivity led him to become part of the drug transaction, and therefore theconduct was a manifestation of his disability. Although in this case, the student wasinvolved in the transaction for several days, the hearing officer still found it wasrelated to the student’s disability.NOTE: Hearing officers and courts have come to different conclusions aboutwhether such behavior is impulsive and/or related to the student’s disability. For 173
  • 160. example, in San Diego Unified School District, 109 LRP 54649 (California State Educational Agency August 12, 2009), the hearing officer found that “arranging to supply drugs to another student is not impulsive behavior if it takes place over the course of hours or days and involves a series of decisions.”Whether misconduct is similar to what is exhibited in school Swansea Public Schools, 47 IDELR 278 (Massachusetts State Education Agency April 4, 2007) In this case, a student with ADHD and ODD was involved in a dispute with the assistant principal, where the student lunged and physically threatened her, screaming, kicking the door, and acting completely out of control. The school district found the behavior not related to the student’s disability because the student had not engaged in physically threatening behavior prior to the confrontation. Furthermore, the student had “leadership abilities and was able to work well with others.” The hearing officer reversed that determination holding that the district could not sever the connection between the disability and the behavior. The hearing officer noted that in previous situations the student was able to regain control by leaving the building or obtaining support from staff. In this case, the student was stopped from leaving the building and no special education staff members were present to support the student. In re Student with a Disability, 53 IDELR 173 (Wisconsin State Educational Agency April 8, 2009) A 13-year-old student with an emotional disability committed an act of vandalism to the principal’s home on the anniversary of his brother’s suicide. Although a therapist diagnosed the student with Post-Traumatic Stress Disorder arising from the suicide, the district found the act of vandalism was not a manifestation of his disability because the misconduct differed from that which the student displayed in school. In school, the student would seek attention, act as a leader, and display defiance. However, the student was invited to participate in the act of vandalism. A hearing officer rejected the district’s determination and the district had to reinstate the student. The hearing officer found that the IEP team failed to consider all of the relevant information, such as previous notes concerning the student’s low leadership skills, which contradicted the team’s reasoning that the student was a leader. Furthermore, the district failed to consider that the conduct would have brought attention to the student and failed to give sufficient weight to the therapist’s testimony that linked the act to the recurrence of the student’s trauma. BUT SEE . . . 174
  • 161. Lincoln Unified School District, 111 LRP 74067 (California State Educational Agency November 30, 2011) A California district appropriately focused on a students disability, rather than his behavior plan, in determining whether his misconduct warranted expulsion. The 17- year-old student, with a SLD based on a reading disorder, had a lengthy disciplinary record for violence, threats of violence, use of profanity, and defiance. The student threatened physical violence against a librarian when he was asked to remove earphones pursuant to a posted library policy. The students behavior escalated to the point where school security was summoned and the district resolved to expel him for the remainder of the school year. The student filed for due process alleging that he was wrongfully expelled. The ALJ noted that the district convened a timely MDR meeting at which it determined that the students misconduct was not a manifestation of his disability and that the expulsion was therefore, appropriate. Here, the students behavior plan provided, "When [Student] is confronted or redirected in an authoritative manner by school staff members, he will respond back with obscenities and verbalizing physical threats that can escalate into physically aggressive behavior." The plan "all but predicted the occurrence of the conduct that ultimately led to his expulsion," the ALJ observed. However, according to 20 USC 1415(k)(E)(i), a students misconduct is a manifestation of his disability only if it is either caused by, or has a direct and substantial relationship to the students disability. The districts director of special education testified that it was conceivable that the students disability could manifest into inappropriate behavior. For instance, if the student became frustrated while attempting to read a passage out loud in class, he could potentially act inappropriately, which would indicate a relationship between his disability and his misconduct. However, the ALJ pointed out that nothing about the library incident suggested that the students reading disorder prevented him from restraining his hostile conduct. His aggression was triggered by his aversion to direction from authoritative figures, not by his disability. If a students conduct is not caused by his disability, a district may employ normal school disciplinary procedures. 34 CFR 300.503(c). Thus, the district appropriately expelled this student.Consider all of the student’s disabling conditions Township High School District 214, 54 IDELR 107 (Illinois State Educational Agency, February 4, 2010 due process hearing decision) After a student posted a threat on Facebook to another student (“When I come back to school I’m going to look for u and kill you”), the district held a MD review and found no link to the student’s disability and expelled him. The district staff at the MD review noted that the student had to log onto Facebook, decide whether to send a private or public message, then type and send a message. Consequently, the student’s ADHD and impulsivity is not related to such a planned event. The IHO disagreed, finding that the school failed to consider other aspects of the student’s 175
  • 162. disability, such as the student’s poor executive functioning, mood disorder, and inability to self-regulate. Had they considered all aspects of the student’s disability, they would have found the behavior related. In addition, the IHO found the district’s argument that the behavior was planned was “simply unsupportable.” Fulton County School District, 49 IDELR 30 (July 11, 2007) After a student allegedly threatened to kill his teacher, a Georgia district failed to conduct a proper manifestation determination review meeting when it refused to consider all of the student’s disabling conditions. In this case the district only considered the impact of the student’s ADD at the MDR meeting and ignored the student’s diagnosis of ODD. The student’s IEP stated that, “the main area of concern was his oppositional behavior,” and therefore the hearing officer determined that the student’s ODD should have been discussed. The hearing officer then found that student’s behavior was directly related to his ODD. Murietta Valley Unified School District and San Marcos Unified School District, 53 IDELR 108 (California State Educational Agency (May 14, 2009) A California student’s action in looking under the stalls of the girl’s bathroom was found to be not related to his disability. The school district erred in failing to consider all of the relevant information in the file. The district only considered the student’s primary disability in the manifestation determination and did not consider the student’s cognitive impairment, even though the district’s own testing revealed the student was mentally retarded. Furthermore, the assistant principal, as the senior administrator on the team, had a “chilling effect” on the mother’s participation when he declared that the student’s disability was not at issue, rather the safety of the student body. His statement also illustrated that the team failed to “undertake its core responsibility to provide the student with a considered manifestation determination.”ADHD In re: Student with a Disability, 109 LRP 56732 (Virginia State Educational An IHO found that a Virginia school district was correct in finding a student’s Agency April 17, 2009) disruptiveness was planned and willful, not a result of impulsivity due to his ADHD. The IEP team found that the student’s objectionable behavior occurred over a sufficient period of time and was not a response to a sudden stimulus. In addition, the fact that the student switched from one objectionable behavior to another, indicated forethought and planning. In this case, the parent produced no evidence that the student’s actions were caused by his disability. Danny K. v. Department of Education, State of Hawaii, 111 LRP 63834 (Dist. Ct. Hawaii September 27, 2011) 176
  • 163. The District Court found that the IHO correctly ruled that the school district had conducted an appropriate MD review and that the student’s conduct of setting an explosive firework off at school was not a manifestation of his diagnosis of ADHD inattentive type, because it was a planned activity requiring sustained attention and follow through with directions. Moreover, the Court found that if the student’s conduct “was not simply an unrelated wrongful intentional act on his part” the Court would agree that the student’s conduct probably resulted from his Conduct Disorder, where the hearing officer specifically found that student’s Conduct Disorder affected his behavior. Additionally, the Court did not find that as part of the MD review, the MD team is required to consider admission of guilt as the conduct to be reviewed for the purpose of a manifestation determination, rather “the manifestation team was required by the IDEA to determine whether the actions leading to Student’s potential suspension – as determined by the [district’s] investigation – were a manifestation of his eligible disability.” In this case, the conduct for purposes of the MD review was the explosion, and not the alleged false confession.*See also above section involving drugs, where two courts came to oppositedeterminations regarding ADHD students under very similar fact patterns.Response to Intervention (RTI) Jackson v. Northwest Local School District, 55 IDELR 104 (S.D Ohio September A third grader with ADHD was entitled to the protections of the IDEA, even though 1, 2010) she was not yet found eligible for special education services. The district had provided intervention services for two years and recommended an outside mental health examination. Although the district never conducted a case study, their actions and the fact that the child was receiving RTI, provided justification for the district to suspect the child had a disability. Therefore, the district was required to conduct a MD review prior to expelling the student. Harrison (CO) School District Two, 57 IDELR 295 (Office for Civil Rights, Implementation of RTI strategies did not offset a Colorado districts failure to timely Western Division, Denver (CO) July 20, 2011) evaluate and reevaluate a student with ADHD. The students mother enrolled him in the district for the 2008-09 school year, and made it clear that the student had ADHD. Instead of evaluating the student for special education or related services eligibility, the district implemented RTI strategies. When the students misbehavior escalated, she asked for an evaluation. The district did not comply; instead, it intensified the RTI strategies already in place. The student received 10 suspensions for his misbehavior. The district eventually completed an IEP for the student in June 2010. The mother filed an OCR complaint alleging the districts denial of FAPE in failing to timely evaluate the student and significantly changing his placement before determining whether his misconduct was a manifestation of his disability. 177
  • 164. Noting the districts contention that it used RTI throughout the students entire enrollment and continued to monitor and adjust his services which facilitated FAPE, OCR explained that RTI does not justify delaying or denying the evaluation of a student with a disability who is believed to need special education and related services. The districts implementation of RTI strategies, OCR explained, was not effective as the students misconduct escalated. The district should have inquired about his ADHD and determined whether an evaluation was needed. RTI, OCR posited, "may have been justified to identify promising instructional strategies," but it does not warrant a delay in evaluation when theres a palpable need. Moreover, the districts use of ongoing interventions did not suffice as consideration of the students behavior as it related to his ADHD. Ten suspensions, some of which were multi-day, resulted in the students deprivation of instruction that his other classmates received. OCR concluded that the frequency and volume of removals constituted a significant change in placement which the district erroneously undertook without considering whether or not the students ADHD caused the misconduct that resulted in his suspensions. Thus, the district denied the student FAPE.Section 504 Springfield (IL) School District #186, Office for Civil Rights, Midwestern A school district violated Section 504 by expelling a student with a 504 plan without Division, Chicago (June 29, 2010) first conducting a MD review. The district believed erroneously that the student had no right to a MD review because the student did not have an IEP. In re Barnstble Public Schools, 111 LRP 48728 (Massachusetts State Because a Massachusetts district failed to consider an independent psychological Educational Agency July 12, 2011) report when it conducted an MD review of a teen accused of bullying, it violated Section 504. Noting that the procedural violation denied FAPE to the student, who was suspended indefinitely, the IHO instructed the district to make its determination again. Hamilton (OH) Local School District, 111 LRP 70119 (Office for Civil Rights, A students medical problems and excessive absences should have prompted an Midwestern Division, Cleveland (OH), September 16, 2011) Ohio district to evaluate her for Section 504 eligibility. Despite having knowledge that the first-graders 34 absences were related to her chronic hypoglycemia and migraines, the district initiated truancy proceedings against her and reassigned her to an online program. The students mother filed for due process alleging that the district denied her daughter FAPE. The FAPE requirement, OCR explained, is not subject to a reasonable accommodation standard or other limitation. Thus, accommodating a student with a disability may require modifications to a regular education program, including adjustments to policies on absences if the students 178
  • 165. disability impacts her attendance. OCR observed that before charging the student with truancy, the district had sufficient knowledge that she had a physical impairment that substantially limited a major life activity. OCR decided that the district violated the Section 504 regulation in failing to consider whether it needed to modify its attendance policy to ensure that the student was not discriminated against for absences related to her disability.Definition of a Weapon California Montessori Project, 56 IDELR 308 (California State Educational Agency, April 29, 2011) An 8-year-old with an emotional disability pointed a pair of scissors at another student in a fit of anger. The school district removed the student and placed him in an interim alternative educational setting (IAES) for 45 days based on possession of a weapon. The IHO ordered that the school district immediately place the child back in his prior educational setting, finding the pair of scissors was not a “weapon” within the meaning of the statute. The scissors had dull blades and rounded tips and could only cut paper when the blades came together. Therefore, the scissors were not dangerous and could not cause “serious bodily injury.” Upper Saint Clair School District, 110 LRP 57903 (Pennsylvania State Educational Agency, June 4, 2010) An autistic child brought a knife to school that met the definition of a “weapon.” The school district placed the student in an IAES for 45 days. The parents argued that it was an accident and the student did not intend to bring the knife to school. The student was reaching into his backpack and once he realized the weapon was there, turned it over to his therapist. The district’s decision was upheld and the IHO stated that there was no requirement for the district to prove the student intended to bring the knife onto school grounds. Scituate Public Schools, 47 IDELR 113 (Massachusetts State Educational Agency January 29, 2007) The fact that a sixth grade student with Asperger’s Syndrome, ADHD and a learning disability pulled on his principal’s necktie after learning that he would not be permitted to leave early did not justify removal to an IAES. The IDEIA allows for removal of a student to an IAES regardless of whether the behavior is a manifestation of the student’s disability, in cases where the student possesses a weapon. However, the hearing officer found that the necktie did not fit the statutory definition of a weapon and the student was not “in possession” of the necktie. The term "weapon" is defined by statute to have the meaning given the term "dangerous weapon" under Section 930(g)(2) of Title 18 of the United States Code, 179
  • 166. which reads as follows: “The term ‘dangerous weapon’ means a weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 2 1/2 inches in length.” The hearing officer found that a necktie was not readily capable of causing death or serious bodily injury. The hearing officer then addressed whether, in any event, the student “possessed” the necktie. Finding no cases addressing the word in the context of the IDEIA, he defined the word according to Black’s Law Dictionary. To possess is defined as “[t]o have in one’s actual control; to have possession of.” Since there was no indication that the student exercised control when he pulled the principal’s tie, he was not found to be in possession of it. In re: Student with a Disability, 50 IDELR 180 (Virginia State Educational A student who regularly carried metal awls to school was found to be in possession Agency June 5, 2008) of a weapon, and therefore, subject to a 45-day removal under the IDEA. The awls had spikes less than two inches in length. Although, the hearing officer recognized that the awls could be used for leatherworking, she still concluded that the awls fit the definition of “weapon” because they were capable of causing serious bodily injury.Serious Bodily Injury Westminister School District, 56 IDELR 85 (California State Educational A 6-year-old with autistic behaviors was placed in an IAES after head butting his Agency January 13, 2011) teacher and causing serious bodily injury. The IHO noted that districts can establish “serious bodily injury” by showing that the victim had “extreme physical pain.” The teacher was diagnosed with an internal chest contusion and characterized the pain as the “worst of her life.” She was prescribed two pain medications that failed to resolve the pain. In addition, she saw a physician three times in one week after her initial doctor’s visit due to the pain. Under these circumstances, the IHO found the district met its burden of demonstrating serious bodily injury. Bisbee Unified School District No. 2, 54 IDELR 39 (Arizona State Educational An ALJ found that an Arizona school district was not justified in removing a student Agency January 6, 2010) with autism to an IAES because he kicked his elementary school principal. Although the district claimed that the student inflicted extreme physical pain when he lunged at the principal and kicked him while being restrained, the principal’s actions following the incident revealed otherwise. The principal said he felt a “sharp pain” 180
  • 167. and went home for the rest of the day. Although his knee was swollen, he did not seek medical attention. The next day, he drove 200 miles. Three weeks later, he received a cortisone injection. Despite finding that the incident was related to the student’s disability, the district removed the student to an IAES. The parent claimed the removal violated the IDEA. The ALJ agreed. A district can move a student to an IAES for up to 45 school days without regard to whether his conduct was related to his disability in several instances, including when the student has inflicted serious bodily injury. “Serious bodily injury” requires substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted impairment of a bodily member, organ, or mental faculty. Here, the evidence did not support the district’s contention that the principal suffered extreme pain. The principal never claimed in his statement or testimony that he was in severe pain. Therefore, the district should not have removed the student to an IAES.Substantially Likely to Result in Injury Grossmont Union High School District, 56 IDELR 245 (California State The school district’s decision to place a 16-year-old with ED in an IAES was upheld. Educational Agency, March 14, 2011) The facts established that the student had escalating aggression and defiance over a period of a few months, which created a “substantial risk of injury” if he were to remain in his current educational setting. The student was caught throwing objects off the school roof, was aggressive with peers and staff, and fled staff members and refused to leave campus when ordered to do so. The student was defiant to school staff members and became increasingly aggressive, resulting in a volatile and uncontrollable situation. Fullerton Joint Union High School, 48 IDELR 147 (California State Educational Agency, June 6, 2007) The district filed an expedited due process hearing to place a student with escalating behaviors in an interim alternative educational setting (IAES) for up to 45 days. Under the IDEIA, the district may move a student to an appropriate IAES for up to 45 school days when the student’s current placement is substantially likely to result in injury to the student or another person. At the time the district filed, the student had been attending a special day class at a traditional high school, with approximately 2,500 students. The student had been attending the day class from October to April of a school year. Two aides were assigned to the student. The testimony at hearing described the student’s behaviors, which included: (1) writing a note in code which said “I could set the building on fire;” (2) becoming agitated by a car playing loud music in the parking lot to the point where the student chased the car screaming for it to shut up and was almost hit by another vehicle; (3) 181
  • 168. exhibiting frequent outbursts in class, requiring a break to a bathroom, which hewould then clog the toilet and sink causing the bathroom to flood; (4) grabbing thewrist of an aide, pushing a teacher, and hitting a teacher and an aide; (5) throwing atrash can into a classroom, narrowly missing another student; (6) throwing desksagainst a metal door; (7) hitting himself in the head; (8) generally exhibitingaggressive and unpredictable behavior, such as jumping on the hood of a parked carin the school parking lot and kicking the windshield until it shattered.Based on these facts, the administrative hearing officer found that there was asubstantial likelihood that injury would result to either the student or to another.The district sought to place the student in an IAES that served the county’smoderate to severe students with developmental disabilities with behavioral andemotional components to their disability. The school served 40 students and thestudent to instructor ratio was no greater than 4-1. The school was completelyseparated from the high school where it was located with a separate entrance andfenced in parking lot. All staff members were trained to deal with students withsignificant behavioral problems. Consequently, the hearing officer also found thatthe IAES was appropriate.Letter to Huefner, Office of Special Education Programs (March 8, 2007)OSEP Director Alexa Posny noted that a school district may repeat the proceduresfor filing an expedited hearing, if it believes that returning the student to the originalplacement is substantially likely to result in injury to the child or to others after the45 days in an IAES.New York City Department of Education, 107 LRP 11702 (New York StateThe administrative hearing officer upheld the district’s placement of the student atEducational Agency, February 9, 2007)an IAES. The record contained 21 reports of incidents between November 1, 2005and May 19, 2006 describing the childs episodes of punching, biting, kicking, head-butting and running away during the fourth grade. The social worker reported thatthe child was not always able to understand social cues or assess social situationsand needed reminders about inappropriately touching others or interfering with thepersonal space of others. She also reported that the childs aggressive episodessometimes required intervention from several adults. An IAES was justified underthe IDEIA.Fort Bragg Unified School District, 52 IDELR 84 (California State EducationalAgency, December 8, 2008) 182
  • 169. A period of several weeks of compliance at home was not enough evidence to establish that the student was unlikely to cause injury in his day placement, where the student had a history of violent and unpredictable behavior in that setting. The school district was, therefore, justified in placing a nine-year-old mentally retarded student in a residential setting to address his need for intensive behavioral interventions. Saddleback Valley Unified School District, 52 IDELR 56 (California State Educational Agency, January 7, 2009) A district cannot rely on a prior weapons possession to make a finding of a second 45-day removal where the student was improving his self-control and no longer engaged in self-injurious behaviors. Minor incidents of misconduct, such as teasing and verbal threats, were not enough to warrant a second 45-day removal.Must Continue to Provide Services Detroit City School District, 111 LRP 1824 (Michigan State Educational Agency, November 12, 2010) Even if misconduct is unrelated to a student’s disability, the school must continue to provide educational services so as to enable the student to participate in the general education curriculum and progress towards her IEP goals. An “administrative transfer” without services violates that provision. Further, what is required is more than merely sending books and assignments home without educational instruction. Prince George’s County Public Schools, 110 LRP 72210 (Maryland State Educational Agency, July 15, 2010) If the misconduct is unrelated, it is the responsibility of the school district, not the parent, to find a placement for services to be provided. A school district violated the provision of the IDEA requiring services to continue after an expulsion, where the district gave the parent a phone number for an alternative school, knowing the school had a waiting list and that the student would not be immediately served.Change of Placement In re: Student with a Disability, 55 IDELR 299 (Wyoming State Educational Agency, December 17, 2010) Once a school district removes a student from his classroom for more than 10 days, it raises the possibility that the removals constitute a change of placement in violation of special education law. In Wyoming, a school district was found to have 183
  • 170. violated the IDEA when it repeatedly sent home a student with cognitive impairments due to physical and verbal aggression. While the school kept no record of the number of times it had done so, the evidence at hearing indicated the student was removed on at least 20 occasions. The IHO determined this pattern constituted a change in placement and ordered that the district stop the practice and provide the student with compensatory education.LEAST RESTRICTIVE ENVIRONMENT This case, which involved mainstreaming for a young girl with Rett Syndrome, has Beth B. v. Mark Van Clay and School District #65, 282 F.3d 493 (7th Cir. 2002) upheld the requirement that a continuum of special education placements must be available for all children. Here, the parents wanted their daughter fully mainstreamed for all classes with non-disabled peers, while the school district believed that the student could only receive educational benefit in a more structured, special education placement. The parents argued that their daughter was receiving some "benefit in the mainstream” and therefore the school district was prohibited from changing her to a self-contained placement. The Appellate Court disagreed with parents, stating that they had misread relevant legal provisions. In fact, the court said that Beths parents… "confused the FAPE side of the coin with the LRE side. They contend that Beths current placement satisfies the Rowley standard because she received an educational benefit at Lake Bluff Middle School. So long as the regular classroom confers "some educational benefit" to Beth, they argue, ……the school district cannot remove her from that setting. This language is misplaced. The Rowley holding applies only to the school districts responsibility to provide a FAPE – a requirement that analyzes the appropriateness of the districts placement – not regular education classroom." (Emphasis added.) the appropriateness of the ELS alternatives including the Thus, looking back to Rowley, a student must receive more than just “some educational benefit” and must be in a placement designed to offer FAPE. The court upheld the district’s placement recommendation in a more structured placement. Board of Education of Township High School No. 211 v. Ross, 486 F.3d 267 (7th Cir. 2007) 184
  • 171. This case involved another student who suffered from Rett Syndrome. The student was initially placed in a traditional high school within the district after being mainstreamed in inclusion classes during her elementary years. By the end of her freshman year, she had engaged in biting, kicking, hitting, self-injurious behaviors, and vocalizations that interfered with classroom instruction. The year culminated with injuries to two staff members working with the student, one of whom required surgery for a broken nose. When the parents attempted to enforce the stay-put provision for her second year, the district went into court and was granted a temporary restraining order. The injunction resulted in both sides working out a complex agreement where a team of three experts would assist in reintegrating the student back into the mainstream setting. After two semesters of reintegration, it became clear that the student was not receiving any benefit from the placement and most of her goals were actually accomplished in an isolated workroom, set up for when the student needed to be removed from the mainstream environment. At the end of the second semester, the district recommended a self-contained multi-needs classroom, and the parents filed for due process to try to keep her in the mainstream setting. After 42 days of testimony, the hearing officer ruled in the school district’s favor on all issues. The parents appealed the decision into the federal district court, when the Judge again ruled in the school district’s favor on all issues. The parents then appealed the decision into the Seventh Circuit. The Seventh Circuit found that the parents were maximally involved in the IEP process, the IEP was not predetermined, simply because the district took steps to prepare for the IEP and a potential lawsuit, and most interestingly, there was no denial of FAPE even though the district failed to include a detailed transitional plan in the student’s IEP. The court recognized that the absence of a detailed transition plan did not amount to a denial of FAPE, where the student’s behaviors were so disruptive that she was unable to take advantage of any transition planning until those behaviors were brought under control. Finally, the Seventh Circuit found that the self-contained classroom was the LRE for this student.SCHOOL DISCIPLINE, THE FIRST AMENDMENT & OFF-CAMPUS BEHAVIOR New Illinois Law Public Act 97-0340 On January 1, 2012, Public Act 97-0340 went into effect in Illinois. Public Act 97-340 effectively amended the Illinois School Code, 105 ILCS 5/1-1 et seq., by providing that gross disobedience or misconduct for which a school board (except Chicago Public Schools) may expel pupils includes that “perpetuated by electronic means.” See 105 ILCS 5/10-22.6(a). Provides that a school board (including Chicago Public 185
  • 172. Schools and special charter districts) may suspend or by regulation authorize the superintendent of the district or the principal, assistant principal, or dean of students of any school to suspend a student for a certain period of time, not to exceed 10 school days, or may expel a student for a definite period of time, not to exceed two calendar years, if (i) that student has been determined to have made an explicit threat on an Internet website against a school employee, a student, or any school-related personnel, (ii) the Internet website through which the threat was made is a site that was accessible within the school at the time the threat was made or was available to third parties who worked or studied within the school grounds at the time the threat was made, and (iii) the threat could be reasonably interpreted as threatening to the safety and security of the threatened individual because of his or her duties or employment status or status as a student inside the school. 105 ILCS 5/10-22.6(d-5)Related Case Law The First Amendment & Misconduct by Electronic Means Kara Kowalski v. Berkeley County Schools, et al., 652 F.3d 565 (4th Cir. 2011) In a case involving cyber-bullying, a student sued the school district for limiting her First Amendment free speech rights by suspending her for creating a hate website against another student at school. The Fourth Circuit determined that the speech created actual or reasonably foreseeable “substantial disorder and disruption” at school; therefore, this was not the “speech” a school is required to tolerate and did not merit First Amendment protection. T.V., M.K. v. Smith-Green Community School Corp., et al., No. 1:09-CV-290-PPS, This was the first case to address in a comprehensive manner whether and to what 2011 WL 3501698 (N.D. Ind. Aug. 10, 2011) extent the First Amendment’s Free Speech Clause would apply to “sexting”. Students brought an action against their school district and principal alleging that their First Amendment rights were violated when the school suspended them from extracurricular activities for posting provocative and suggestive photographs on a social media website. The court held that the students’ conduct was speech within the realm of the First Amendment. In addition, the court found the “off campus” conduct to be protected “expressive” conduct that did not substantially interfere Accordingly, the court found the punishment imposed to be a violation of the First with requirements of appropriate discipline in the operation of the school. Amendment. Additionally, the portion of the student handbook providing that, “If you act in a manner in school or out of school that brings discredit or dishonor upon yourself or your school, you may be removed from extra-curricular activities for all or part of the year,” was found to be impermissibly overbroad and vague under 186
  • 173. constitutional standards. In this case, a high school student brought § 1983 civil rights action against his D.J.M. v. Hannibal Public School District #60, 647 F.3d 754 (8th Cir. 2011) school district alleging that his suspension, which was based on alleged threats the student made to shoot other students, violated his First Amendment freedom of speech rights. The Eighth Circuit found that the student’s statements were not protected speech under either “true threat” or substantial disruption analysis. A “true threat” is a statement that a reasonable recipient would interpret as a serious expression of intent to harm or cause injury to another and is intended to be communicated to another by the speaker. Such a statement is not considered protected speech. The student communicated his statements to a friend via “instant messaging”, who then shared “something serious” with an adult, who informed the school principal and superintendent. Furthermore, the student’s conduct was that which might reasonably lead school authorities to forecast substantial disruption of or material interference with school activities, and thus is not protected by the First Amendment. Off-Campus Behavior J.S. v. Blue Mountain School District, 650 F.3d 915 (3rd Cir. 2011) & Layshock v. Hermitage School District, 650 F.3d 205 (3rd Cir. 2011) Both cases concern students engaging in off-campus behavior involving the posting and creation of fake profiles of each of the students’ principals on social networking sites. Parents of both high school students brought actions against the school district alleging that disciplining the students was a violation of their First Amendment rights. The Third Circuit ruled that the school district did not have authority to punish these students for their off-campus expressive conduct. In Layshock, the Court stated “the First Amendment prohibits the school from reaching beyond the schoolyard to impose what might otherwise be appropriate discipline.”N:General OfficeSpeaking Engagements201202-04-12 ICCBD Drive In ConferenceSpecial Education Discipline Memo (Final).doc 187