United States District Court for the
Northern District of Illinois, Eastern Division
|MARY P. and PETER P., on their own behalf and as parents and next friends
of MICHAEL P., a minor, Plaintiffs
ILLINOIS STATE BOARD OF EDUCATION, Robert LEINENGER, Mary Jane BRONCO,
Gail LIEBERMAN, Terry DAVID, Charles DONAVAN, Roger GARVELINK, and BOARD
OF EDUCATION OF DOWNERS GROVE GRADE SCHOOL DISTRICT NO. 58,
March 21, 1996 Eligibility
Criteria, Speech Impairment
Evaluations, Scope of Evaluation
Related Services, Speech
Reimbursement to Parents,
Material to be omitted:
The parents of a 7-year-old student
whose voice often became strained and fluctuated in pitch due to vocal
cord nodules challenged a district's refusal to identify him as eligible
for special education under the category of speech impairment. While it
was acknowledged that his voice was not normal, they disputed whether the
student's condition had an adverse educational impact since he was performing
at an age-appropriate academic level. A level I hearing officer determined
that the student was IDEA eligible, a level II hearing officer reversed
that determination, and the parents appealed.
HELD: for the parents.
The district court relied upon the
following authority 1) an advisory note to the federal regulations
which said that in evaluating communicative speech disorders, "focus on
an objective level of speech ability and the observation of speech behavior
was paramount," and
2) OSEP policy letters which
said that eligibility for a speech/language impairment could not be conditioned
on the existence of a concurrent deficiency in academic performance.
The court rejected the argument
that such interpretations ran counter to the federal regulations, pointing
out that in determining eligibility, the regulations provide that no single
procedure is used as the sole criterion, and rather, an examination of
a "variety of sources" of data is required. Moreover, the defendants' reliance
on the Rowley case was misplaced, as the Supreme Court rejected the idea
that the sole test for an appropriate education was academic achievement,
and thus, special education eligibility was not governed by that premise.
Thus, the court concluded that educational performance was not limited
to academic criteria, and also incorporated the development of communication
and social skills and personality. Since the student's disability interfered
with his ability and desire to communicate with his teachers and peers,
the student was eligible for special education under the category of speech
impairment. The court awarded the student 30 minutes of weekly speech therapy
and further found that the parents were entitled to reimbursement for privately
obtained speech therapy due to the violation--rejecting the notion that
bad faith was a prerequisite for such an award. The parents were also deemed
prevailing parties entitled to attorneys' fees.
Counsel for Parents: Margie Best, Law Offices of Margie Best, One North
LaSalle Street, Suite 2200, Chicago, IL 60602.
Counsel for State Defendants: Diann Marsalek, Asst. Atty. General, 100
W. Randolph, Chicago, IL 60601.
Counsel for District and Personnel: John Wren, Franczek Sullivan, 300
S. Wacker, Suite 3400, Chicago, IL 60606.
HARRY D. LEINENWEBER, Judge
Memorandum Opinion and Order
Plaintiffs, Michael P. and his parents, brought an action under the
Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §
1400 et seq., alleging that defendants, which include the Illinois State
Board of Education, Michael's school district, administrators, and teachers,
wrongfully denied Michael special education services for his speech impairment.
Plaintiffs and defendants now both move for summary judgment.
Michael is a seven-year-old boy who suffers from a speech impairment due
to the presence of small nodules on his vocal cords. After Michael initially
was diagnosed with this disability in March 1991, his parents requested
an evaluation by his local school district to determine his eligibility
for special services to be provided by the school. Throughout the next
two years, plaintiffs and defendants met at multidisciplinary conferences
("MDC") where plaintiffs presented the recommendations of Michael's own
private speech pathologists who asserted the need for services. At the
MDCs, defendants steadfastly denied Michael's eligibility for such services.
The MDC reports indicate that an Individualized Education Program ("IEP")
was never formulated. Admin. R. 838, 857, 867. The parties' dispute culminated
in a Level I Due Process Hearing in May 1993. At the hearing, both parties
presented evidence regarding Michael's eligibility for services under the
IDEA. Witnesses for both parties generally agreed that Michael's voice
was not normal. In particular, all noted that the following qualities appeared
at times: hoarseness, squeakiness, fluctuations in pitch, strain, and low
volume levels. Admin. R. 534, 668-673, 878-79. However, witnesses for each
party disputed whether Michael's condition adversely affected his educational
performance. Plaintiffs' witnesses described the effect of Michael's condition
on his ability and willingness to speak. They cited episodes where Michael's
voice rendered him wholly unintelligible and where he was reluctant to
offer vocal responses to oral questions. See, e.g., Admin. R. 660-62. The
school's witnesses focused on Michael's academic and social aptitude. They
cited his ability to participate in all school activities with competency
and his popularity among his classmates. See, e.g., Admin. R. 534. At the
hearing, both parties also raised the issue of what services Michael actually
required. Plaintiffs' witnesses proposed that the school provide Michael
with thirty minutes of speech therapy per week. Admin. R. 492, 613. The
school's witness proposed that 1) school staff be educated on Michael's
condition and that they "monitor" Michael's voice to determine if it affects
2) if his condition did not improve, the school would convene
an MDC to reevaluate him. Admin. R. 488, 539. The school's witness suggested
the formulation of an IEP and direct speech therapy only as a last resort.
The Level I hearing officer made several factual determinations. She
found: 1) Michael was performing at an age-appropriate educational
level (Admin.R. 1307); and
2) despite his academic performance, Michael's disability was
severe enough to affect his educational performance due to its effect on
his overall ability to communicate. Admin. R. 1308.
The Level I hearing officer determined that Michael was eligible for
services under the IDEA. Admin. R. 1310. She noted that the standard for
eligibility under the IDEA is whether the disability "adversely affects"
the student's educational performance. She based her determination on a
1980 Department of Education, Office of Special Education Program ("OSEP")
opinion letter. Admin. R. 1308. The letter stated that academic achievement
was not the sole benchmark of an adverse affect on educational performance
with regard to speech impairment; rather, the opinion of experts should
determine whether a speech impairment was severe enough to adversely impact
a child's educational performance. Admin. R. 289-292. Guided by the letter,
the Level I hearing officer credited plaintiffs' experts' opinions that
Michael's disability was so severe as to warrant special services, despite
her finding that Michael's speech impairment had no apparent impact on
his academic achievement. Admin. R. 1308. She accordingly ordered the school
to provide Michael with thirty minutes of speech therapy services per week
and to convene a MDC to determine what other services he might require.
However, she denied plaintiffs' reimbursement for private speech therapy
because she found the school had acted in good faith. Admin. R. 1310.
Defendants appealed this decision in a Level II Due Process Hearing.
The Level II hearing officer did not hold a new evidentiary hearing, but
accepted a supplemental opinion from an otolaryngologist, proffered by
the school, that a student with Michael's condition did not qualify for
services. Supp. Admin. R. ex. 1. This opinion was not based upon an examination
of Michael, but rather upon the witness's experience with vocal nodule
patients and his review of the Level I record. Id. The Level II hearing
officer reversed the Level I hearing officer based on a misapplication
of the legal standard to determine eligibility. He held that:
The record shows that M.P.'s voice disorder did not interfere with
his academic performance. Academically he was equal to or superior to most
of his classmates. Furthermore, his social adjustment to his classmates
was not adversely affected. The District's proposed IEP was reasonably
calculated to enable M.P. to perform academically equal to his classmates.
As stated in Rowley the student's IEP should be reasonably calculated to
enable the student "to achieve passing marks and advance from grade to
grade, if the child is being educated in the regular classroom of the public
education system." The District has met its legal obligation to M.P. The
present law does not require more. Admin. R. 10-11.
Though he did not directly address the question of eligibility, the Level
II hearing officer implicitly determined that an adverse effect on educational
Performance must include an effect on age-appropriate academic performance.
In essence, he found the two terms synonymous. He also refused to credit
the letter from the Office of Special Education, stating that the letter
was due no deference because it was contrary to the language of the IDEA
and to the Supreme Court's holding in Board of Ed. v. Rowley, 458 U.S.
176, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). Admin. R. 10, 11. Because the
Level I hearing officer specifically found no effect on age-appropriate
academic performance and because the district's "proposed IEP [was] reasonably
calculated to enable M.P. to achieve educational benefit," the Level II
hearing officer reversed. Admin. R. 12-13.
Plaintiffs appealed the decision to this court, arguing that the Level
I hearing officer correctly applied the legal standard to determine eligibility
under the IDEA by relying on an interpretive agency letter. Plaintiffs
asked for the reinstatement of the Level I order with the caveat that plaintiffs
be reimbursed for all previous speech therapy and receive any other equitable
relief. Defendants responded, arguing that the Level II hearing officer
correctly interpreted the IDEA to require that a disability have an adverse
academic impact before a student is eligible for services.
II. Standard of Review
Review of IDEA due process hearings involves a mixed question of law and
fact. See Board of Ed. v. Illinois St. Bd. of Ed., 41 F.3d 1162, 1166-67
(7th Cir.1994); Oak Park and River Forest High Sch. v. Illinois St. Bd.
of Ed., 886 F.Supp. 1417, 1058 (N.D.Ill.1995). The court must give "due
weight" to all factual determinations, but review all legal conclusions
de novo. Id. In addition, summary judgment is proper where there are no
factual disputes and where the court is asked only to resolve issues of
law. LTV Steel Co. v. Northwest Eng'g & Constr., Inc., 41 F.3d 332,
334 (7th Cir.1995); American Jewish Cong. v. City of Chicago, 827 F.2d
120, 123 (7th Cir.1987). Because both parties concede the factual record
of the proceedings below, the court's main task is to ensure the application
of the correct legal standard to the salient facts. Specifically, the court
must determine if a student with a speech impairment is eligible for special
services under the IDEA when his disability does not impact his academic
The purpose of the IDEA is to ensure that "all children with disabilities
have available to them a free and appropriate education." 20 U.S.C. §
1400(c); 34 C.F.R. § 300.1. The issues raised in the present case
are whether plaintiff qualifies as a child with a "disability" and, if
so, what relief is warranted. The process by which a student is granted
special education services is by no means simple. Generally, the student's
family, teachers, administrators, and experts all participate to determine
if the student is eligible for services and, if so, which services are
appropriate. The first step is to determine eligibility based upon statutory
criteria and expert opinion. Generally, a multidisciplinary conference
("MDC") convenes to examine data and determine eligibility. See Ill. Admin.
Code Tit. 23, § 226.5 (1995). To be eligible for special education,
the student must fit the statutory definition of a "child with a disability."
20 U.S.C. § 1401(a)(1)(A); see also Doe v. Belleville Public School,
672 F.Supp. 342, 344 (S.D.Ill.1987) (applying statutory criteria to examine
eligibility); Timothy W. v. Rochester N.H. High School Dist., 875 F.2d
954, 961 (1st Cir.) (same), cert. denied, 493 U.S. 938, 110 S.Ct. 519,
107 L.Ed.2d 520 (1989); Yankton Sch. Dist. v. Schramm, 900 F.Supp. 1182,
1190 (D.S.D.1995) (same); Doe v. Board of Ed., 753 F.Supp. 65, 69-70 (D.Conn.1990)
(same). All of the statutory definitions require that the disability "adversely
affect the child's educational performance." See 34 C.F.R. § 300.7(b)(1-13);
Doe, 753 F.Supp. at 69; Doe, 672 F.Supp. at 344. The C.F.R. specifies evaluation
procedures to be used for determining whether a child fits the statutory
definition of a "child with disabilities." See 34 C.F.R. §§ 300.7(a)(1),
300.500(b), 300.530-300.534. These procedures require the examination of
"a variety of sources, including achievement tests, teacher recommendations,
physical condition, social or cultural background, and adaptive behavior."
34 C.F.R. § 300.533(a)(1). If a student is deemed eligible at the
MDC, then the participants determine precisely what services are appropriate.
These decisions are outlined in an Individualized Education Program ("IEP").
See 34 C.F.R. §§ 300.340-300.350; Ill. Admin. Code Tit. 23, §§
226.5, 226.562 (1995). If the parents disagree with the MDC's determination
of eligibility or the formulation of the IEP, they may challenge these
decisions at an impartial "due process" hearing. 20 U.S.C. § 1415(b);
34 C.F.R. §§ 300.500-300.515; Ill. Admin. Code Tit. 23, §§
226.605-226.698 (1995). At the due process hearing, both parties may raise
issues regarding the student's eligibility, as well as any proposal for
services. Ill. Admin. Code Tit. 23, § 226.605 (1995). The hearing
officer is empowered to determine issues of eligibility and appropriate
services in light of the evidence presented, and he may order the provision
of such services if he determines that the student is eligible. Ill. Admin.
Code Tit. 23, § 226.675 (1995).
Plaintiffs claim that Michael is eligible for services under the IDEA
because of his speech impairment. The C.F.R. defines speech impairment
as "a communications disorder such as stuttering, impaired articulation,
a language impairment, or a voice impairment that adversely affects a child's
educational performance." 34 C.F.R. § 300.7(b)(11) (1995). The Illinois
Administrative Code defines speech impairment as "deviations of speech
and/or language processes which are outside the range of acceptable deviation
within a given environment and which prevent full social or educational
development." Ill. Admin. Code Tit. 23, § 226.552(c) (1994).
Plaintiffs argue that speech impairments are different from other disabilities
and require a different eligibility analysis. As noted above, the procedures
to determine whether a student is a "child with a disability" and thus
eligible for services under the IDEA is based on an examination of "a variety
of sources, including achievement tests, teacher recommendations, physical
condition, social or cultural background, and adaptive behavior," 34 C.F.R.
§ 300.533(a)(1). The inclusion of "achievement tests" implies that
academic achievement may be a component of any determination that a disability
"adversely affects a child's educational performance." The issue is whether
it is required. Plaintiffs assert it is not required--at least for speech
impairments--by relying on the advisory note which follows § 300.533(a)(1)
and on an agency letter interpreting the same. The advisory note attempts
to clarify the criteria for evaluating speech-impaired students:
The [school] would not have to use all sources in every instance. The
point of the requirement is to ensure that more than one source is used
in interpreting evaluation data and in making placement decisions. For
example, while all of the named sources would have to be used for a child
whose suspected disability is mental retardation, they would not have to
be necessary for certain other children with disabilities, such as a child
who has a severe articulation impairment as his primary disability. For
such a child, the speech-language pathologist, in complying with the multiple
source requirement, might use: (1) A standardized test of articulation,
The comment acknowledges that every criterion is not applicable to the
evaluation of every disability, and more specifically, in the evaluation
of a student with a communicative speech disorder, such as plaintiff's,
focus on an objective level of speech ability and the observation of speech
behavior is paramount.
(2) observation of the child's articulation behavior in conversational
speech. 34 C.F.R. § 300.533 note (1995).
The Office of Special Education and Rehabilitative Services (formerly
entitled Office of Special Education Programs or "OSEP"), which is the
principal agency empowered to administer the IDEA, 20 U.S.C. § 1402,
abides by the same interpretation. In a 1980 letter, Assistant Secretary
Edwin Martin articulated OSEP's position on the procedures to determine
which speech impairments were eligible for services under the IDEA. He
It is clear that, in establishing the existence of a speech/language
impairment that is "handicapping" in Part B terms, a professional judgment
is required. The basis for that judgment is the child's performance on
formal and/or informal measures of linguistic competence and performance,
rather than heavy reliance on the results of academic achievement testing.
The impact of the child's communicative status on academic performance
is not deemed the sole or even the primary determinant of the child's need
for special educational services. It is the communicative status--and professional
judgments made in regard to assessments of communicative abilities--which
has overriding significance. In the event that the speech-language pathologist
establishes through appropriate appraisal procedures the existence of a
speech/language impairment, the determination of the child's status as
a "handicapped child" cannot be conditioned on a requirement that there
must be a concurrent deficiency in academic performance. Admin. R. 291.
OSEP reaffirmed its position in two 1989 letters by Acting Assistant Secretary
Patricia McGill Smith, Admin. R. 285, and Director Judy Schrag, Admin.
R. 283-84, published at 16 Ed. Health L. Rptr. 82, 82-83 (1990). The court
must determine the proper weight to assign the advisory note and the interpretive
agency letter. Advisory notes or commentary are "akin to an agency's interpretation
of its own legislative rules [which] must be given 'controlling weight
unless it is plainly erroneous or inconsistent with the regulation.'" Stinson
v. United States, __ U.S. __, 113 S.Ct. 1913, 1919, 123 L.Ed.2d 598 (1993)
(citing Bowles v. Seminole Rock Co., 325 U.S. 410, 414-15, 65 S.Ct. 1215,
1217, 89 L.Ed. 1700 (1945)). Interpretive agency letters are afforded the
same deference. They aid the court "insofar as" or "to the extent that"
they do not contradict clear statutory or regulatory mandates: In administrative
law, [t]he first question is how the agency understands its own rules--for
an agency possessed of the ability to adopt and amend rules also may interpret
them, even if the interpretation chosen is not the one that most impresses
an outside observer. Chicago School of Automatic Transmissions, Inc. v.
Accreditation Alliance of Career Sch. and Colleges, 44 F.3d 447, 450 (7th
Cir.1994) (citing Stinson, 113 S.Ct. at 1919); see also Estate of Kurz
v. Commissioner of Internal Revenue, 68 F.3d 1027, 1030 (7th cir.1995)
(deferring to agency's interpretive letter because agency has "substantial
leeway in their interpretation" of their own regulations); Jones v. Illinois
Dept. of Rehabilitation Serv., 689 F.2d 724, 729 (7th Cir.1982) (holding
agency's interpretive letter was entitled to "substantial deference").
Therefore, the court will defer to the OSEP's interpretive letter unless
it violates the clear meaning or purpose of the statute, the regulation,
or applicable legal precedents.
Defendants assert that the OSEP letter violates two binding legal authorities.
First, they assert that the letter runs counter to the C.F.R.'s definition
of a speech impairment, which requires the disability "adversely affect
the child's educational performance." 34 C.F.R. § 300.7(11). Echoing
the logic of the Level II due process hearing officer, the essence of defendants'
argument is: "An adverse affect on educational performance necessarily
requires an adverse affect on academic achievement." The Code does not
explicitly define how severe a disability must be before it "adversely
affects the child's educational performance." As noted above, the procedures
to determine eligibility--that is, whether a child has a disability and
whether the disability adversely affects his educational performance--require
the examination of "a variety of sources" of data. 34 C.F.R. § 300.533(a)(1).
One source of data is academic aptitude testing. Id. However, in determining
eligibility, the MDC must ensure that "no single procedure is used as the
sole criterion for determining an appropriate educational program for a
child." 34 C.F.R. § 300.532(d). Nothing in the Code explicitly requires
the use of any single source; an analysis of the "variety of sources" upon
which eligibility hinges may or may not examine aptitude tests. Therefore,
the Code's language does not, on its face, contradict the agency's interpretation
or the commentary following 34 C.F.R. § 300.533, upon which the OSEP
letter principally relies.
Defendants' next argument is more complex. They assert that the letter
runs contrary to Board of Ed. v. Rowley, again echoing the logic of the
Level II hearing officer. A priori, the court notes that the issues in
Rowley and the present case are different. In Rowley, the Supreme Court
faced the issue of "what is meant by the [IDEA's] requirement of a 'free
and appropriate education.'" 458 U.S. at 186, 102 S.Ct. at 3040. The present
case concerns the appropriate standard for eligibility. In deciding the
issue of eligibility, the Level II hearing officer mistakenly applied the
standard to determine whether an IEP was "appropriate." See Admin. R. 10-11.
This error is not fatal to his decision if the standard for determining
what services are "appropriate" for IEPs is the same as the proper standard
for determining eligibility for special education services. The court now
turns to a comparison of those two standards. While the propriety of an
IEP hinges on whether it provides a "free and appropriate education," as
defined by the Court in Rowley, eligibility hinges on whether the student
is a "child with a learning disability," 20 U.S.C. § 1401(a)(1), whose
condition "adversely affects the child's educational performance." 34 C.F.R.
§ 300.7. The inquiry into whether an education is "free and appropriate"
is whether the IEP is "reasonably calculated to enable the child to achieve
passing marks and advance from grade to grade." Rowley, 458 U.S. at 203-04,
102 S.Ct. at 3049. Defendants contend that the inquiry into whether a student
is eligible for services is identical, and that a child who is passing
from grade to grade is not eligible for services under the IDEA. However,
Rowley does not so hold. The plaintiff in Rowley was a deaf student who
challenged a school district's decision to deny her an in-class sign language
interpreter under the IDEA. She was succeeding in her academic classes
on the strength of her ability to read lips. She contended, however, that
she could excel at her course work if the school would provide her an interpreter.
The school denied that it had a responsibility to help her achieve the
best possible education, arguing instead that "free and appropriate" meant
only one which allowed a student to matriculate from grade to grade. Considering
the plaintiff's successful academic achievement, the court determined that
the student was receiving an "appropriate" education. 458 U.S. at 204,
102 S.Ct. at 3049. However, the court limited its holding in a footnote.
We do not hold today that every handicapped child who is advancing
from grade to grade in a regular public school system is automatically
receiving a "free and appropriate public education." In this case, however,
we find [the student's] academic progress, when considered with the special
services and professional consideration accorded by the [school] administrators,
to be dispositive. 458 U.S. at 203 n. 25, 102 S.Ct. at 3049 n. 25.
Thus, the Court noted that the simple fact that a student is advancing
from grade to grade is not per se evidence of an appropriate education.
It did not hold that the student was ineligible for services because she
was achieving academically; rather, the Court simply deferred to the substantially
factual determination made by the school in light of the student's academic
progress with the assistance she was already receiving. Later in the opinion,
the Court refused to "establish any one test for determining the adequacy
of educational benefits conferred upon all children covered by the [IDEA]."
458 U.S. at 202, 102 S.Ct. at 3049. Because the Supreme Court explicitly
rejected the notion that the sole test for an appropriate education was
advancement from grade to grade, or, in other words, academic achievement,
the court finds no authority from Rowley to impose such a requirement on
the test for eligibility in the present case. Therefore, the OSEP's letter
is not contrary to the statute, regulation, or legal precedent. Because
the interpretive letter does not offend any binding legal authority, the
court defers to OSEP's interpretation and adopts its position with regard
to the eligibility criteria for speech impairment. "Educational performance"
means more than a child's ability to meet academic criteria. It must also
include reference to the child's development of communication skills, social
skills, and personality, as the Code, itself, requires. See 34 C.F.R. §
300.533(a)(1) (requiring analysis of a "variety of sources"). Whether the
balance of these factors tips towards eligibility depends on the manner
in which the specific disability afflicts the student. Today, the court
simply holds that a child whom experts determine suffers from a speech
impairment so severe as to inhibit his ability or desire to communicate
with his teachers and peers meets the criteria of "speech impairment" which
"adversely affects the child's educational performance" under 34 C.F.R.
§ 300.7(11) and, thus, is a "child with a disability" under 20 U.S.C.
§ 1401(a)(1). Under this standard, the court determines that Michael
meets the statutory criteria and is eligible for services under the IDEA.
The Level I hearing officer found that Michael was a "child with a disability"
and eligible for services, after weighing the evidence provided by both
parties. Because defendants do not challenge the underlying facts contained
in the record, the court declines to do so as well. Moreover, after a review
of the hearing transcripts and records, the court is independently satisfied
that the Level I hearing officer correctly determined Michael's eligibility
based on the severity of his speech impairment. Accordingly, the court
finds that Michael is "a child with a disability" and eligible for services
under the IDEA.
Plaintiffs seek several forms of relief. First, they seek thirty minutes
of speech therapy per week, as the Level I due process hearing officers
initially ordered. A court may order that a school provide certain services
as part of a student's IEP. See, e.g., Board of Ed. of Murphysboro v. Illinois
State Bd. of Ed., 41 F.3d 1162 (7th Cir.1994) (ordering that a student
be educated at specific educational facility). The Level I Hearing Officer
was empowered to: determine whether the evidence establishes that the child
has needs which require special education services. . .[and] shall order
the parties to take all steps necessary to ensure appropriate placement
and services for any child found to be eligible. Ill. Admin. Code Tit.
23, § 226.675 (1995). In reviewing the denial of eligibility and services,
the Level I hearing officer rejected defendants' proposed services, ordered
that defendants provide Michael with weekly speech therapy, and that an
MDC convene to determine if any other services were appropriate.
After independently reviewing the evidence, and giving due weight to
the determinations below, the court finds that the Level I hearing officer's
order of weekly therapy was appropriate given Michael's disability. Accordingly,
defendant Downers Grove Grade School District is ordered to reconvene the
MDC within 30 days from the date of this order to make a determination
of Michael's eligibility and formulate an IEP which provides for services
consistent with this court's findings and to determine if other services
are appropriate at this time.
Next, plaintiffs seek reimbursement for all private speech therapy
which they have provided to Michael since defendants refused Michael services
at the MDC on February 16, 1993, which prompted plaintiffs to request a
due process hearing. The Level I hearing officer denied plaintiffs reimbursement
because the district "acted in good faith." Admin. R. 1310. Nowhere does
federal or state law require a showing of bad faith before a successful
student may be reimbursed for private appropriate services. Under previous
incarnations of the IDEA, exceptional circumstances were needed to justify
monetary relief, see Anderson v. Thompson, 658 F.2d 1205, 1213-14 (7th
Cir.1981). However, the Supreme Court's opinion in School Comm. of Town
of Burlington v. Dept. of Ed., 471 U.S. 359, 368, 105 S.Ct. 1996, 2002,
85 L.Ed.2d 385 (1985) eliminates any such requirement. See, e.g., Max M.
v. Ill. St. Bd. of Ed., 629 F.Supp. 1504, 1513 (N.D.Ill.1986) (relying
on Burlington to reimburse parents for private appropriate services despite
lack of bad faith by school district). Thus, plaintiffs are entitled to
reimbursement "if a federal court concludes both that the public placement
violated the IDEA, and that the private school placement was proper under
the Act." Florence County Sch. Dist. v. Carter, __ U.S. __, 114 S.Ct. 361,
366, 126 L.Ed.2d 284 (1993); Burlington, 471 U.S. at 368, 105 S.Ct. at
2002. However, any reimbursement must be calculated at a rate that "qualified
personnel would normally and reasonably charge for the [IDEA] services
obtained privately by the deprived party." Max M., 629 F.Supp. at 1514
(regarding medical services). The court has already determined that the
"public placement" or, in this case, the lack thereof, violated the IDEA
and that thirty minutes of speech therapy per week was appropriate. Therefore,
defendants are ordered to reimburse plaintiffs for the cost of private
speech therapy which plaintiffs actually provided for the period of February
17, 1993 through the date of this order. The reimbursable cost is limited
to thirty minutes per week.
Next, plaintiffs seek costs and attorney fees pursuant to 20 U.S.C.
§ 1415(e)(4)(B). The court may award costs and attorneys fees to the
parents and child if they are the "prevailing party." 20 U.S.C. §
1415(e)(4)(B); Hunger v. Leininger, 15 F.3d 664, 670 (7th Cir.), cert.
denied, __ U.S. __, 115 S.Ct. 123, 130 L.Ed.2d 67 (1994); Max M. v. New
Trier High Sch., 859 F.2d 1297, 1301 (7th Cir.1988). Those costs and attorneys
fees may cover both the judicial and administrative proceedings. Brown
v. Griggsville Community Unit Sch. Dist., 12 F.3d 681, 683 (7th Cir.1993)
(relying on Moore v. District of Columbia, 907 F.2d 165 (D.C.Cir.) (en
banc), cert. denied, 498 U.S. 998, 111 S.Ct. 556, 112 L.Ed.2d 563 (1990));
Reid v. Board of Ed., 765 F.Supp. 965, 967-68 (N.D.Ill.1991). Any fee award
must be based on "rates prevailing in the community in which the action
or proceeding arose for the kind and quality of services furnished." 20
U.S.C. § 1415(e)(4)(C).
In the present case, plaintiffs are the prevailing party. They have
successfully challenged the denial of services, and they have obtained
those services they initially sought. Therefore, the court awards plaintiffs
all attorney fees from the two due process hearings and the present action
in federal district court, subject to § 1415(e)(4)(C). Plaintiffs
may submit a petition for fees and costs within 21 days of this opinion.
Defendants may file objections within 14 days thereafter. Plaintiffs may
then file a reply within 7 days thereafter.
Defendants' motion for summary judgment is denied. Plaintiffs' cross-motion
for summary judgment is granted. Downers Grove Grade School District is
ordered to reconvene a multidisciplinary conference to formulate an IEP
for Michael and discuss what services are appropriate in light of this
memorandum opinion and order within 30 days of the date of this order.
Defendants are ordered to reimburse plaintiffs for any expenses incurred
in providing Michael with appropriate private speech therapy from February
17, 1993 through the date of this order. Defendants are ordered to reimburse
plaintiffs for attorney fees and costs for the administrative and judicial
proceedings. Plaintiffs shall submit a petition for fees and costs within
21 days from the date of this order. Defendant shall file any objections
within 14 days from the date thereafter. Plaintiffs shall file a reply
within 7 days from the thereafter. The court shall retain jurisdiction
over these proceedings to monitor compliance.
IT IS SO ORDERED.