Welcome to
DueProcessIllinois.org
About Illinois Due Process .Org
This site is dedicated to helping children with disabilities obtain an
appropriate education. The laws supporting every child's right to an
education
are complicated. There are many fine sites which explain the basic laws
and regulations for children with disabilities, and you may find links
to them below. The purpose of this site is to provide a central
location
where you may obtain copies of actual due process decisions entered
under
the laws of the State of Illinois. These written decisions are entered
by Independent Hearing Officers who decide special education disputes
between
students, parents and school districts. The Illinois State Board of
Education
maintains copies of all these decisions, and you may obtain copies of
them
by calling at (217) 782-5589. The ISBE website contains a
list and short summary of these decisions. (See note
following here.) These decisions are not published regularly as
are
decisions of other courts. To aid the use of these decisions, we are in
the process of posting copies of the opinions here. We have also
included
other harder-to-find materials in our list, such as some decisions of
the
United States District Courts. Decisions of the United States Courts of
Appeals for the last few years are available for free using LexisOne.com
or Findlaw.com. |
What is Due Process?
|
Amendment
V
of the Constitution of the United States of America
No
person shall be ...
deprived of life, liberty, or property, without due process of law.
|
|
Amendment XIV of
the Constitution of the United States of America
Section. 1. All persons born or naturalized
in the United
States and subject to the jurisdiction thereof, are citizens of the
United
States and of the State wherein they reside. No State shall make or
enforce
any law which shall abridge the privileges or immunities of citizens of
the United States; nor shall any State deprive any person of life,
liberty,
or property, without due process of law; nor deny to any person within
its jurisdiction the equal protection of the laws. |
|
Constitution of the State of
Illinois of 1970
Art.1, Sec. 2. Due Process and Equal
Protection. No
person shall be deprived of life, liberty or property without due
process
of law nor be denied the equal protection of the laws. |
|
January 8, 2008:
We are moving the web host of this website, and migrating
the
files to the new server.
While we test the site, some files may be temporarily
unavailable.
This site is still under construction.
We will be phasing the number of opinions and capabilities
of
this site.
Thank you for your patience.
| Technical requirements |
Some of the opinions posted here during the first stage of
the construction
of this site are in the Tagged Image Format (.tif) (fax quality).
If your browser does not have a plug-in for .tif, you can download the
case file and view in your imaging application
(Start>Programs>Accessories>Imaging).
Macintosh users may use GraphicsConverter. Files with the PDF format
can
be read with the free Acrobat Reader. Occasionally there may be a file
in a Microsoft Word Format. |
| Contact |
If you have a decision that should be included on this
site,
please email us at for instructions. |
| Report to us |
To report a new decision or settlement to the Special
Education
Round Table, click Report. |
| Warning |
Do not rely upon the information on this page as legal
advice. Please
consult an attorney if you have any questions. The law is
constantly
changing, and your circumstances may be diferent.
The Regulations of the Illinois State Board of Education are
currently
being revised. Many of the decisions discussed below involved
IDEA
before the 1997 and 2004 amendments, and the outcomes could be
different
after the 2004 amendments to IDEA
|
Links to other Disabilities and Special
Education sites
Searchable ISBE summaries of Due Process
decisions.
The ISBE summarizes the opinions from July1997, through October 2004 in
several separate .pdf files. Here is a link to a html file which
combines the summaries into one file. This combination allows you
to search all the summaries at once instead of repeating the same
search
in all seven files.
ILDPSummary.html
After a gap of 18 months, the summaries started as of April 2006. ILDPSummary2006.html
34 CFR 300.510 (c) (2). (c) Findings and decision to
advisory panel and general public. The
SEA, after deleting any personally identifiable
information,
shall--
...
(2) Make those findings and
decisions
available to the
public.
Freedom of Information Act. (FOIA)
The Illinois Freedom of Information Act is codified at 5
ILCS
140/ sections 1 through 11. http://www.legis.state.il.us/legislation/ilcs/ch5/ch5act140.htm
You can use a FOIA request to obtain information from
any public entity in Illinois. Some information is excluded if it
is private. In Bowie v. Evanston Community
Consol.
School Dist. No. 65, (1989) the Illinois Supreme Court ruled that
schools
cannot refuse to supply the information just by saying it concerns
private
information; they must comply with requests if they can redact out the
personal and private information. In that case, the parents of
students
attending that district's schools sought the disclosure of standardized
test scores for students and a list of educational programs available
in
those schools. The school district was required to disclose record of
achievement
test scores under the FOIA in a masked and scrambled format.
For a complete discussion and analysis of the Act, see
the Attorney General memo:
http://www.legis.state.il.us/legislation/ilcs/ch5/ch5act140.htm
Questions and Answers on Serving Children with Disabilities
Eligible for Transportation
Office of Special Education and Rehabilitative Services (OSERS) in the
U.S. Department of Education prepared a series of question and answers
explaining its current thinking on the regulations controlling
transportation for special education students.
Q&A Transportion
Transportation is a related service as defined by 34 CFR
§300.34(c)(16) of the IDEA regulations and can include travel to
and from school and between schools; travel in and around school
buildings; and specialized equipment such as special or adapted buses,
lifts, and ramps. A child’s individualized education program (IEP) Team
is responsible for determining both if transportation is required to
assist a child with a disability to benefit from special education and
related services, and how the transportation services should be
implemented.
Report
(html, 32 KB) evaluates access
and fairness of Due Process system in Illinois.
Access.pdf (pdf, 215 KB)
The results of Dr. Melanie Archer's analysis were startling.
- Overall, school districts have prevailed in over two out of three
special
education due process hearings in the time period 1997 to 2002
- In the last 1 1/2; years, the school districts have been
increasingly
prevailing at due process hearings, with the school districts
prevailing
in more than 72 percentage of cases in 2001
- Almost half of the hearing officers decided in favor of the
school
district,
in excess of 80% of their decisions
- During the 1997 to 2002 time period, parents were successful in
49.6
percent
of the cases when they were represented by an attorney, but only
successful
in 16.8 percent when unrepresented by an attorney.
These preliminary statistics have caused considerable concern with
respect
to both the adequacy of the due process system in identifying and
addressing
parent concerns, the fairness of the due process system, and the
adverse
impact on the success of parents when they do not have access to
affordable
legal counsel.
Damages for harassment
Excellent article: Mark Weber, a Professor of Law at dePaul
University,
has written a law review article:
Disability Harassment in the Public Schools, William and
Mary Law Review, vol. 43, no. 3, Feb 2002.
The article explains the need for antiharassment laws in our
public schools, the current legal environment, and the need for courts
to enforce current laws against schools and granting damages to
compensate
for actual harm caused by harassment. Please check your local law
library for a copy, use Lexis or Westlaw, or contact William
and Mary Law School for a copy.
abstract
Retaliation. In Jenkins
v. Rock Hill Local School District and Lloyd Evans(.pdf) the 6th
Circuit Court of Appeals held that a parent could sue the school
district when it retaliated against her daughter who had diabetes. The
school inhibited her First Amendment rights when she complained about
the principal expelling the student because she had diabetes.
OCR
memo on harassment
Peters v. Rome City School District
New York Case affirming jury verdict imposing $75,000
damages where the time-out room was unfurnished and had padding on the
walls, door and floor. Although defendant notified plaintiff each time
Christopher was placed in the time-out room, plaintiff did not observe
the room until March 22, 1993, and she testified at trial that it
lacked
ventilation and had an odor of "dirty feet [and] urine," and she
described
the padding on the floor as ripped and dirty. Defendant's expert
testified
at trial that there was nothing inappropriate about the room. It is
undisputed
that Christopher was not permitted to leave the time-out room until he
had remained seated in an upright position without moving for three
consecutive
minutes; that on at least one occasion Christopher fell asleep in the
room;
and that there were occasions when Christopher was confined to the room
for periods in excess of one hour.
Eason v. Clark County School District (the Witte case)
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/487D7532E20D23F588256C3100544878/$file/0017370.pdf?openelement
Shawn Witte and Derrick Eason appeal the dismissal of
their actions alleging severe abuse and excessive corporal
punishment inflicted by educators at Variety School,
a public school attended exclusively by students with disabilities, in
Nevada's Clark County School District. Shawn and Derrick
both
sued the District and individual District personnel for violations of
their
constitutional rights to substantive due process and equal protection
under section 1983, the Rehabilitation Act, the Americans with
Disabilities
Act
and state law. In both cases, the district court held that all
defendants
were entitled to Eleventh Amendment immunity, dismissed all claims and
taxed costs against Shawn and Derrick. We reverse the dismissal of the
section 1983 and state law claims against all defendants, as well as
the
ADA and Rehabilitation Act claims against the District, because the
Clark
County School District is not an "arm of the state" and therefore does
not enjoy Eleventh Amendment immunity.
Scruggs v. Meriden Board of Education (District of
Connecticut,
August 22, 2005),
Allowing a lawsuit to proceed by denying a motion to dismiss, the U.S.
District Court for the District of Connecticut permitted the mother of
a special education student who committed suicide to press her claims
that
a school's failure to deal with the persistent bullying and harassment
of her son constituted a violation of constitutional due process equal
protection provisions, as well as intentional discrimination under the
Rehabilitation Act and the Americans with Disabilities Act, and
conspiracy
by a tacit agreement.
Also of interest is K.M. v. Hyde
Park Cent. Sch. Dist., 2005 WL
1963939
(Aug. 11, 2005), which upholds claims against both the school district
and individual defendants for pervasive and severe harassment.
Given
the Alito nomination, his opinion regarding harassment undermining FAPE
in
Shore
Reg'l High Sch. Bd. of Educ. v. P.S., 381 F.3d 194 (3d Cir.
2004) is of more interest.
ScruggsDConn.pdf
List of Decisions
(to be organized later)
Board of Education of
Elmhusrt-District
205 v. Daniel M. v. Gotha (Sept. 5, 2006) (177KB, pdf)
Parents
stated a cause of action against the Special Education administrator
under
section 1983 for denying legal rights when she obstructed the
construction
of a proper IEP. The issue of damages was postponed until the
Seventh
Circuit decides the Malone case.
DW v. Grayslake Comm Cons School District #46
(August 2002) (html, 86Kb)
After 12 days of due process hearing, the IHO ruled
that
the child's parents properly made a unilateral placement at
Heartspring
School which is a residential school in Kansas that works primarily
with
children with autism who have intense behavioral needs. He
ordered the district to reimburse the parents for expenses
connected
with the placement and for the district to contract with the
school.
The standard under Burlington had been met. The
district's
proposed placement was ruled to be inappropriate as the curriculum and
design of the program did not represent FAPE for this child's needs.
The IHO further ruled that the
district
failed to exercise its supervisory duties when the child was at a
private
therapeutic day school. The program failed to address his
behavioral
needs and the district failed to act when it knew that the child's
needs
were not being met. It was ordered that the child receive 9
additional
months of eligibility for the 9 months he did not receive a FAPE in
this
program. Additional remedies included cash reimbursement for
expenses
for programming and services that the parents incurred that the
district
should have paid.
Overriding the Non-Consent for Placement
Are Illinois Hearing officers giving schools powers not allowed by the
law?
ISBE2011.tif
Case #002011 -- Marie Bracki, Hearing Officer
Consent for initial special education placement
The district requested the due process hearing to
override
the parent's non-consent for initial placement of the student. A second
evaluation was conducted changing the student’s eligibility from
"mental
impairment" to "learning disability" The parent still refused consent,
refused to participate in the hearing, and intended to place the child
in a private school. The district filed a Motion for Summary Judgment.
The district was ordered to implement its IEP. The district was
represented
by counsel. The parent did not participate and was not represented.
However, the following gives a contrary
interpretation
of the law:
http://www.ed.gov/offices/OSERS/OSEP/Policy/3q2001pl/cox092401eval3q2001.pdf
This Federal Office of Special Education Programs
letter states that IDEA does not permit school districts to initiate a
due process hearing to override a parent's refusal to consent to a
child's
placement.
A link to a unverified text version of this document
is included here since it was posted here before it was posted on the
OSEP
website. [site as: Federal Register: February 22, 2002 (Volume 67,
Number
36) Page 8445-8447.]
OSEP
09/24/2002.htm
Note that any party may initiate due process
regarding
evaluation-- See http://www.ed.gov/offices/OSERS/OSEP/Policy/2q2001pl/redact041601eval-2q2001.pdf
1997 OCR Letter to Durheim:
"OCR has determined, through policy clarification,
that
the Section 504 regulation, as referenced in your November 20, 1997,
letter,
requires parental consent prior to the conduct of initial student
evaluation
procedures for the identification, diagnosis, and prescription of
specific
educational services. Parental discretion in matters involving student
assessment/evaluation is an inherent part of the regulation and
parental
discretion is an appropriate and necessary policy component at the
initial
evaluation phase. Subsequent student evaluations, however, are not
subject
to parental consent."
More OSEP guidance on consent:
[* Letter dated March 20, 2003 to Vermont Department
of
Education Legal Counsel Geoffrey A. Yudien,
clarifying
(1) that a
school district may not override parental consent for
the initial
provision of special education and related services,
(2) that a school
district is not required to obtain separate
parental
consent for
additional services that the individualized
education
programs team
deems necessary or for a continuation of services
after
the parent has
previously consented to the initial provision of
services,
and (3) that
the protections under the IDEA, including the
discipline
procedures at
34 CFR 300.520-300.529, would not apply to children
whose
parents have
refused consent for the initial provision of special
education and
related services.
http://www.ed.gov/policy/speced/guid/idea/letters/2003-1/yudien032003eval1q2003.pdf
[*] Letter dated February 11,
2003
to New Jersey Director of
Special Education Barbara Gantwerk, clarifying (1)
the
ways in which
school districts can document efforts to obtain
parental
consent for
the initial provision of special education and
related
services and
reevaluations, and (2) that school districts are not
required to
provide the Part B discipline protections to children
who are not
receiving special education because their parents
have
refused to
consent.
http://www.ed.gov/policy/speced/guid/idea/letters/2003-1/gantwerk021103eval1q2003.pdf
Other Illinois opinions demonstrate that school districts often file
petitions
without jurisdiction:
ISBE2209.tif
Case # 002209 -- James Wolter, Hearing Officer
Regular Education vs. Special Education Placement
The district requested the hearing in order to place
the student in a self contained special education program housed in his
neighborhood school without parental consent. The parents
wanted
the student to remain in the regular education placement. At the time
of
the hearing, the student was 8 years old entering the 3 rd grade and
receiving
speech therapy and counseling. The hearing officer found that the
district
had conducted an appropriate IEP conference and developed an IEP that
was
reasonably calculated to provide benefit to the student. The placement
recommended by the district was affirmed. The district was represented
by legal counsel; the parent was not represented.
Case #002789 - Charles Aschenbrenner, Hearing Officer
Consent for Initial Placement in Special Education
ISBE Synopsis: The District requested the
due
process hearing seeking an order to compel placement in special
education
without parental consent. A previous hearing was held to compel
consent
to conduct a case study evaluation. The District's request to conduct
the
evaluation was granted. The hearing officer found the student eligible
for special education under the category of learning and behavioral
disabilities.
However, the parent refused to provide consent for placement in special
education. At the time of this hearing, the student was nine years old
and enrolled in a third grade classroom. The District was seeking an
order
to place the student in a therapeutic day school. The hearing officer
found
that the preponderance of the evidence showed that the student's
educational
needs could best be met in a BD self-contained special education
program.
The District was represented by legal counsel; the parent was not
represented.
Case #002953 - James A. Wolter, Hearing Officer
Least Restrictive Environment, Initial Consent for
Placement
ISBE Synopsis: The district requested the
hearing
to compel placement of the student in a full-day special education
kindergarten placement. At the prehearing conference call the parent
informed
the hearing officer that there would be no need to proceed with the due
process hearing because she had given the district written
authorization
to place the student in a special education kindergarten program and to
review the student's progress every three months. The district agreed
with
the parent and made a motion for a directed summary judgment. The
motion
was granted. The district was ordered to provide the student with a
half-day
regular education program and half-day special education kindergarten
program
commencing the 2002-03 school year. The district was represented by
legal
counsel; the parent was not represented.
Note that the parents must file for due process to revoke
consent
Case #002542 - Judge Quinn Dempsey, Hearing Officer
Appropriate Placement, Termination of Services,
Revocation
of Consent
The parent requested the hearing because they wanted
the student returned to general education. Pursuant to 23 IAC
226.540(a)(3)
and (i) a parent who desires to revoke consent must request a due
process
hearing; the mother did so in this instance. During the 2001-02 school
year, the student was enrolled in a language arts/reading pull-out
program
for students with learning disabilities. It was the hearing officer's
finding
that the psychological evaluation, which consisted of two pages, was
inadequate
to support placement in special education. The hearing officer ordered
the student be removed from all special education services and placed
in
a standard 7th grade curriculum. The both parties were represented by
legal
counsel.
Attorneys Fees cases
New Article: Buckhannon, Special Education Disputes, and Attorneys’
Fees: Time for a Congressional Response Again
This note examines the impact of Buckhannon on IDEA litigation,
arguing that Buckhannon undermines the role of the IDEA fee-shifting
provisions
in the enforcement of the IDEA. Under the Buckhannon regime,
plaintiffs
risk incurring attorneys’ fees far in excess of the value of their
claims;
even if they ultimately obtain all of the relief they originally
sought.
Inevitably, parents will bring fewer claims, however meritorious, and
more
children will be denied the opportunity for FAPE. In time, fewer
disabled
children will mature into self-sufficient, independent adults—an
individual
and societal harm that Congress intended the IDEA to remedy.
http://www.law2.byu.edu/jel/v2003_2/Hanson.pdf
Jessica P decision.pdf
(176 KB) Judge Manning granting summary judgment in an attorney fee
claim.
CPS opposed the claim asserting that fees should bereduced or even
eliminated
based on a pre-hearing offer of settlement, and that the hours claimed
were unreasonable. Judge Manning rejected all CPS claims, and
awarded
the full $97,101.25 claimed by the parent.
Jessica P 2nd decision.pdf
(ISBE4284)
(95 KB)
IT IS HEREBY ORDERED that the school district shall
convene
an IEP meeting using the summer assessment team no later than July 25,
2005 and, utilizing the Parent's independent evaluations conducted by
the
Evanston Northwestern Hospital Clinic on December 2, 2004 and Mr.
Arnell
Brady on April 20, 2005, determine if the Student has a specific
learning
disability. If necessary, the Student's October 15, 2005 IEP shall be
revised
to provide special education and related services appropriate to that
disability.
IT IS FURTHER ORDERED that the Student's IEP shall be
revised to include a behavior intervention plan that contains
appropriately
stated and measurable interventions and is reasonably calculated to
address
behaviors related to the Student's emotional disturbance disability and
learning disability, if determined and deemed necessary. As the record
contains significant data regarding the Student's school and classroom
activities in the 2004-05 school year, the decision of whether to
conduct
a new functional analysis is left to the IEP team, in consultation with
appropriate staff and the Parent.
IT IS FURTHER ORDERED that the District is to
undertake
all reasonable efforts to locate and provide to Parent or her attorney
the social work progress notes from the 2004-05 school year and any
e-mail
communications regarding the Student by July 25, 2005. If necessary,
the
District shall have its information technology staff develop e-mail
search
instructions and disseminate the same to applicable District and
school-based
staff.
IT IS FURTHER ORDERED that the District shall offer
the
Student compensatory services in the form of the tutoring/mentoring
program
recommended by Dr. Terry Smith and set forth in the hearing testimony
and
exhibits. The tutor/mentoring program shall be provided to the Student
for period of two years beginning no later than August 1, 2005 unless a
later date is mutually agreed upon by the parties, and at a total cost
not to exceed $24,000 (twenty four thousand and ‰ dollars), the full
cost
to be borne by the District. The tutoring/mentoring, program shall be
in
addition to any other compensatory services the IEP team deems
necessary
and appropriate, including but not limited to a collaborative team
teaching
model for all academic core subjects and extended year services.
TD.pdf (52Kb) (Sept. 26, 2002)
Northern District of Illinois. Parents are
prevailing
parties even if they make a favorable settlement prior to winning a
trial.
The court distinguished cases arising under other statutes since IDEA
specifically
allows fees when the parties settle. The court also awarded costs
which include the Parent's expert witness fee. (Reversed on
appeal:
02-3928 T.D. v. LaGrange School 102, argued May 20, 2003.)
BrandonK.pdf
(256K) (2001)
District Court ordered payment of attorneys to
parents
as prevailing parties to a settlement agreeement.
JoseLuis.pdf
(203K) (2001)
District Court did not order payment of attorneys to
parents as prevailing parties to a settlement agreeement.
Joshua.pdf (358K, 12 pages) 2000-C-0340
(08/31/2002)
District Court denied fees where DP order was not
better than school district offer made ten days prior to hearing.
Erik A. v. Bd Ed City of Chicago
U.S. District Court orders payment of 75% fee based on partial success.
HomeSchool.tif
HomSchAG.html
Illinois Attorney General Opinion stating parents
could
home school a child with disabilities.
T.H.
v. Palatine .doc District Court Opinion (MS Word format)
TH v. Palatine , html level II due process
decision
TH v. Palatine , html, level I due process
decision
Jayden S.
The parents of a child with autism requested the
Department
of Human Services provide ABA. The department agreed to provide 30
hours
per week, but the IHO determined it violated the IDEA by splitting
provision
of the hours 18 specified in the IFSP to be given by a department
therapist,
and 12 by the mother. At the direction of the Department, the parents
spent
over $2,000 on training and the mother took on the role of
"developmental
therapist" for her son. She also provided support and training to the
department
funded therapists because they were unfamiliar with ABA therapy. The
child
markedly improved while receiving the therapy, and the parents
requested
reimbursement for the costs of training. The department refused,
claiming
the expenses were not approved, and while it might pay for approved
training,
it did not reimburse parents for their direct expenses. The IHO
rejected
the department's position. He determined the mother acted "well beyond
the parental role contemplated by the IDEA."
The "inadequacy" of the IFSP required the mother
to fill
the gap and it was unreasonable for the department to expect an
"untrained,
high school educated mother" to provide ABA therapy without training,
the
IHO concluded. Because the department's IFSP team determined the child
needed 30 hours of ABA therapy, it was obligated to provide it. The
failure
to include all 30 hours in the IFSP amounted to a reduction not linked
to the child's unique needs and therefore violated the IDEA. The IHO
ordered
the department to reimburse the parents. deMora cited.
Bd of Ed of Paxton-Buckley-Loda School
District # 10 v. Jeff S.
School violated procedural safeguards, failed to
provide
least restrictive environment, failed to consider an appropriate
methodology.
Private school reimbursement ordered. The District violated
procedural
safeguards when it simply chose not to consider a methodology
which
would allow a regular preschool program in determining placement
ISBE2274.tif
(974 Kb, 28 pages)
ISBE2274.htm (scanned OCR, 86
Kb)
Case # 002274- Charles L. Aschenbrenner, Hearing
Officer
The District did not comply with procedural aspects
of
IEP, which was inadequate. HO ordered placement in a
residential
school for an Aspergers/BD/ED child.
JohnM.pdf (688k, 23 pages)
Case # 2001-C-1063 (06/18/2002)
U.S.
District
Judge Guzman orders compensatory OT for Downs Child where
- School's OT
provider
had not fully reached her certificate and hearing officer failed to
consider
importance of OT deficits and lack of progress there.
- Procedural
violations glossed over.
- Reimbursement of Independent evaluation.
- Parents were prevailing parties for fees.
Seventh Circuit uses strict interpretation of Stay Put
The stay put in John M was
appealed to the Seventh Circuit which ruled:
In enacting the
stay-put provision, Congress intended
"to strip schools of the unilateral authority they had traditionally
employed to exclude disabled students . . . from school." ...A child's
interim educational regime must produce as closely as possible the
overall educational experience enjoyed by the child under his previous
IEP.
To achieve that result, we must recognize that educational
methodologies, appropriate and even necessary in one educational
environment, are not always effective in another time and place
in serving a child's continuing educational needs and goals.
Nevertheless, when asked to approve an alteration in educational
methodology in a stay-put order, we must give careful attention to the
purpose of the stay-put provision. The recognized and defined special
needs of the child and the educational goals originally set by the
parents and by professional educators must be respected. Protestations
that educational methodologies proven to be helpful to the child in the
past are now impossible must be evaluated with a critical eye to ensure
that motivations other than those compatible with the statute, such as
bureaucratic inertia, are not driving the decision.
John M-7th
Circuit Appeal on Stay Put (123 KB) (2007)
see also OY
v. CPS, stay put order(178 kb)
(Oct 2008)
JL v. Oswego Unit School District (342K 12
pages)
Case #2000-C-1803 (060/07/2001) case of sexual
harassment
by busdriver is not educational and is independent of IDEA, thus can be
brought as separate lawsuit, citing Charlie F. (7th Cir 1996). District
argued its corrective actions could have been addressed in the IDEA,
but
the court looked to the nature of the action Plainitff argued
District's
response showed deliberate indifference to his plight.
see also
Doe v. Chicago Board of Education.
339 Ill. App. 3d 848 (2003)
http://www.state.il.us/court/Opinions/AppellateCourt/2003/1stDistrict/June/Html/1020207.htm
This case presents question as to whether trial
ct. properly
dismissed
plaintiff's willful and wanton negligence action
alleging
that
plaintiff-special education student incurred injuries
during sexual
assault committed by fellow student on school bus?
App.
Ct., in
reversing trial ct., found that plaintiff adequately
stated cause of
action, and that defendant was not entitled to
immunity
under section
4-102 of Local Governmental and Governmental
Employers
Tort Immunity Act
since plaintiff pleaded knowledge on part of
defendant
that attacker was
likely to commit sexual assault and that attendant
was
required on bus.
The Illinois supreme court affirmed, holding that tort did not apply to
the school district.
Although the complaint does contain allegations that the Board failed
to prevent a
sexual assault, it also contains allegations implicating willful and
wanton conduct
based on allowing the bus to operate without supervision, knowing that
the
perpetrator was not to be left unsupervised among other children. 213
Ill. 2d 19 (2004)
Hernandez v. Board of Education
of City of Chicago (18 pages)
Case #2001-C-0097 (05/04/2001) Court ordered Board to
provide interim services during pendancy of case. Student had
been
denied services. Additional evidence to be admitted during
District
Court review of DP.
Child Find
ISBE3851.htm : (Jessica P.
v. Chicago Public Schools) ISBE3851.doc
There are sufficient facts in the record
demonstrating
that the school district had knowledge that the student might be
eligible
for special education before the occurrence of the two incidents which
resulting in attempts to expel the student. In light of the
foregoing,
it is clear that the school district had a burden to offer the
procedural
safeguards of IDEA to the mother of the student when it suspended the
student
in excess of ten days and when it twice attempted to expel the
student.
Those procedural safeguards included but were not limited to a
manifestation
determination "as if" the student had been a special education student.
34 CFR §300.541 Failure to afford this student the
protections
to which she was entitled under IDEA renders the expulsions and
suspensions
in excess of ten days null and void.
It is clear from the record that the school district
did not conduct an adequate assessment of the student's levels of
cognition
or her academic performance
In light of the school district's failure to initiate
a case study evaluation until March 2004 and its failure to adequately
assess the student's level of cognition or academic performance as part
of the evaluation, there was no way that the IEP team could fashion an
Individualized Education Plan which might provide educational benefit
for
this student.
Compensatory services ordered among other relief.
Egregious School District Behaviour
ISBE2535.PDF
(3436 KB, 18 pages) School superintendent lied under
oath about treatment a disabled child was receiving in his
school.
School created a hostile and harassing environment which caused
student's
discipline problems. Student attempted to flee school and was
found
near death. School's request for therapeutic day school
declined.
School ordered to include child and to implement supports and staff
training
to make inclusion work.
The simple fact that a student is advancing from grade
to grade is not per se evidence of an appropriate education
Lillie Felton
This OSEP Policy letter from 1995 explains:
- SLD Evaluation Team May Consider Extra
Learning
Support
in Determining Educational Achievement
- In determining a child's current level of
educational achievement
for purposes of specific learning disability (SLD) identification, it
would
generally be appropriate to consider information about outside or extra
learning support provided to the child when determining whether a child
who receives satisfactory grades is nevertheless not achieving at
age-level.
Such information may indicate that a child's current educational
achievement
reflects the service augmentation, not what the child's achievement
would
be without such help.
- Children With High I.Q.'s Not Excluded From
SLD
Disability
Category
- There is no categorical exclusion for
children
with high
IQs in Part B; therefore, if a student with a high I.Q. is not
achieving
at his expected performance standard for reasons other than those
specified
in 34 CFR 300.541(b), (the criteria for determining the existence of a
specific learning disability (SLD)), and otherwise meets the criteria
for
that disability in accordance with that provision, the child can
properly
be identified within the meaning of that disability. Each child who is
evaluated for a suspected learning disability must be measured against
his own expected performance, and not against some arbitrary general
standard.
- SLD Evaluation Must Include Testing of All
Seven
Areas
Listed in 34 CFR 300.541(a)(2)
None of the seven areas listed in 34 CFR
300.541(a)(2)(i)-(vii),
the Part B regulation which establishes the criteria for determining
the
existence of a specific learning disability (SLD), can be categorically
excluded from a multidisciplinary team's evaluation to determine
whether
a child has a SLD. To the contrary, each of these areas must be taken
into
consideration, and a state policy which requires otherwise may be
suspect.
New:
"Participation by a student with a
disability in an accelerated class
or program generally would be considered part of the regular education
or the regular classes referenced in the Section 504 and the IDEA
regulations. Thus, if a qualified student with a disability
requires
related aids and services to participate in a regular education class
or program, then a school cannot deny that student the needed related
aids and services in an accelerated class or program. For
example, if
a student’s IEP or plan under Section 504 provides for Braille
materials in order to participate in the regular education program and
she enrolls in an accelerated or advanced history class, then she also
must receive Braille materials for that class. The same would be
true
for other needed related aids and services such as extended time on
tests or the use of a computer to take notes.
Conditioning enrollment in an
advanced class or program on the
forfeiture of needed special education or related aids and services is
also inconsistent with the principle of individualized determinations,
which is a key procedural aspect of the IDEA, Section 504 and
Title II. As noted above, under Section 504, the provision of
FAPE is
based on the student’s individual education needs as determined through
specific procedures--generally, an evaluation in accordance with
Section 504 requirements. 34 CFR 104.35. An individualized
determination may result in a decision that a qualified student with a
disability requires related aids and services for some or all of his
regular education classes or his program. Likewise, the IDEA
contains specific procedures for evaluations and for the development of
IEPs that require individualized determinations. See 34 CFR
300.301
through 300.328. The requirement for individualized
determinations is
violated when schools ignore the student’s individual needs and automatically
deny a qualified student with a disability needed related aids and
services in an accelerated class or program. "
This theme is reflected in Kent T. v. Elmhurst Community School
District
#205 (N.D. Ill. 2002) http://www.wrightslaw.com/law/caselaw/2002/IL.kevint.elmhurst.pdf
"a child's capicity to learn must also be considered when
evaluating
an IEP," and citing Bd of Ed Oak Park River Forest #200 (N.D.
Ill.
) 21 F. Supp at 877: "the district failed to institute a 'systematic
and
comprehensive plan to deal with [the student's] reading difficulties,'
and that '[s]uch a failure was manifested ... by the absence of any
goals
or objectives that specifically addresses these reading deficits.'"
See also Mary P.v. ISBE, (html) (U.S.
Dist Ct, N.D. Ill. 1996):
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
Zachery v. Monticello Community School District No. 25, ISBE
07-0145
Asperger child was entitled to an IEP even though he met academic
acheivement
level, but lacked social skills.
School must use some
methodology
Frank H v. CPS, 2007 - 0182
"As to the district’s argument that methodology is left to the
district's discretion, Lachman holds that when a proposed IEP
is "based
upon an accepted, proven methodology," a parent does not have the right
to compel a district to provide a different methodology that the parent
considers more appropriate. Lachman, 852 F. 2d 290 (7th Cir.
1988).
The September 12th IEP does not identify any methodology – let alone an
accepted and proven methodology - for teaching this student to read,
which
is precisely the parent's objection: the IEP does not meet the
student's
needs because it provides no methodology to remediate his dyslexia and
therefore puts him at substantial risk for further academic failure."
Petrina v. CPS Feb. 4, 2008.(scanned pdf,
32 pages, 2.87 MB)
School provided
no systematic research-based methodology and questionable content for
teaching a student to read. No phonics or other methodology, no
goals tailored to meet her individual needs.
Petties v. District of
Columbia:
School District must supply the services listed in IEP.
Ash v. Lake Oswego School District
(9th Cir. 1992)
Letter to Zirkel (OCR 1993)
The standard of services is not "reasonable accommodation" or other
limited services.
IDEA requires complete FAPE (Free, Appropriate Public Education).
Eric A. v. Chicago Public Schools,
ISBE
4514 (2005).
A district is entitled to establish its own
curriculum
and instructional techniques as long as they successfully meet
students'
needs, providing FAPE. If the district does not develop and/or
implement
an IEP that provides the student with FAPE, parents may request that
the
district pay for private instruction and/or related services in order
to
provide FAPE, or they may request compensatory education. Florence
County
School Dist. v. Carter, 510 U.S. 374 (1993); Burlington School
Committee
v. Massachusetts Dept. of Educ., 471 U.S. 374 (1985). While the IEP
must
be provided in the least restrictive environment "to the maximum extent
appropriate," the law also allows removal to more restrictive
environment
as necessitated by the nature and severity of the child’s disability.
105
ILCS 5/14-8.02(d) (2002) While the District’s curriculum and techniques
must provide "educational benefit," that requirement is not the
equivalent
of providing the "most" beneficial possible services or requiring that
the student achieve his highest potential. Board of Educ. of
Murphysboro
Community Unit School Dist. No. 186 v. Ill. St. Bd. of Educ., 41 F.3d
1162,
1167 (7th Cir. 1994), citing, Board of Educ. of Sch. Dist. No. 21 v.
Ill.
St. Bd. of Educ., 938 F.2d 712, 715 (7th Cir. 1991), cert. denied, --
U.S.
--, 112 S. Ct. 957, 117 L.Ed.2d 124 (1992).
Jason S. v. Chicago Public Schools, ISBE 4526
(2005)
In light of the Parent's experience with
the
District, which delegated her many attempts to get help from the
highest
level down through the bureaucracy with no relief ever ensuing, she is
right to have no faith that CPS will provide FAPE for her son.
Thus it is ordered:
1. That District pay for placement in a private
therapeutic
day school.
2. That District pay for cognitive, psychosocial,
speech/language,
and assistive technology assessments either administered by the
therapeutic
day school or by independent evaluators .
Jason A. Chciago Public Schools, ISBE 4331 (2005)
However, the last agreed upon IEP placed the student
in a blended pre-K classroom and staff attested to the fact that he had
made progress in that setting. One of the parent’s witnesses was
surprised
at how well the child behaved in her office for the evaluation and was
amazed at the progress he had made. The fact that the District does not
have a full-day blended kindergarten class at this time does not change
the process for determining what a specific student requires. In a
blended
classroom, this student would have access to non-disabled peers. This
is
a critical time for language development and social interaction. The
placement
should maximize his exposure. The ISBE Memorandum dated April 10, 2003
supports this finding. Further, the Seventh Circuit Court of Appeals
has
upheld the doctrine that progress is a key consideration in determining
the appropriateness of a least restrictive environment. This is noted
in
two recent Illinois cases, namely Beth B v Lake Bluff SD and Kevin B v
LaGrange SD.
Michael S. v. CPS,
ISBE 2007-007 (2007) (130 KB)
While the team's strategy of lowering the bar of
expectation
ensures that Michael will pass his courses at Steinmetz, it falls far
short
of Rowley’s requirement that the IEP confer some educational benefit on
the student. It cannot credibly be argued that Michael was making
progress
at the same time he was regressing. In short, the evidence confirms
that
the District denied Michael a FAPE because it failed to provide him
with
an appropriate IEP that enabled him to receive some educational benefit.
In JB, IHO Alan Cook ordered residential placement at
CPS expense for a 14 year old girl who has been on runaway status or
intermittently
hospitalized for about 18 months. He also accepted a
recommendation
that, as a compensatory service, CPS pay for monthly visits by the
child’s
guardian. ISBE 2007-0175 (pdf scan
1290 KB)
"The IEP should respond to the needs and disabilities attributable
to
the student at the time the IEP is developed. If residential
placement
is appropriate, it should be given to the student. It is not
necessary
to first go through unsuccessful placements in regular education
and
therapeutic
day school programs."
---------------
By contrast, in ISBE case number 2008-0211
Officer
Wolters wrote:
Finally,
the parent argued that it makes no difference whether the student
exhibited aggressive behavior in school or only at home. The parent
contends that if the student required a residential placement because
of aggressive behavior at home, the district has the responsibility for
providing the student with a free appropriate public education and
therefore responsible for providing the student with a residential
placement Independent School Dist. No.
284 F 3d 769, 77 (8th Cir 2001). The district countered that
educational needs for residential placement and non-educational needs
for residential placement are distinguishable and relevant in
determining whether the district is required to provide a student with
a residential placement Dale M. v.
Bd. Of Ed. Of Bradley-Bourbonnas High School Dist.No. 307, 237
F.3d 813, 817 (7th Cir. 2001).
Assessment and Independent Evaluation
In FS, IHO
Schwartz ordered an IEE to assess LD issues
for a 10 yr old with severe EBD. This is a preliminary
order.
The case remained open for issue of placement following the evaluation.
ISBE 2007-0182 (30 KB). The final
opinion is listed above (Frank).
"Although all the student's IEPs have
consistently noted reading
problems
and consistently indicate that the student is reading below grade
level,
the district has never provided a learning disability or reading
evaluation
for the student. There has been no investigation as to whether the
student's
documented reading deficiencies or a learning disability have an impact
on his behavioral problems. This hearing officer cannot determine
whether
there are services to which the student may be entitled without such an
assessment."
Board of Ed of Ottawa Township v. U.S.
Department
of Education
Two Illinois school districts have sued the U.S. Department of
Education,
claiming that some of the accountability measures of the No Child Left
Behind Act should be invalidated because they are in direct conflict
with
the Individuals with Disabilities Education Act.
The responsive pleadings give a great explanation of the NCLB.
The U.S. District Court dismissed the complaint, stating that the
plaintiffs
failed to state an injury. The school districts refiled, alleging
that if they taught the children reading and writing to pass the NCLB,
they would decrease the instruction in the functional curriculum of
communication
and daily living skills, and a child might lose self-esteem in taking
harder
courses. The U.S. has moved to dismiss the second complaint as
well.
The Complaint:
U.S. Dept Ed motion to dismiss, and response
State of Illinois motion to dismiss, the response and the reply:
order dismissing first complaint
motion to dismiss amended
complaint
Judgment dismissing complaint (March
31, 2007, 46 KB)
Appellate decision affirming dismissal
(Feb 11, 2008, .pdf 85 KB)
Dist. Ct. erred in finding that
plaintiffs-school districts lacked standing to bring action seeking
declaration that requirements of No Child Left Behind Act were
subordinate to requirements set forth in Individuals with Disabilities
Education Act (IDEA) where basis for Dist. Ct.'s ruling was observation
that plaintiffs could resolve any conflicts by simply turning down
federal money awarded under said statutes and thereby escape any
conflicting obligations. Plaintiffs had standing to bring instant
action since condition on federal grants can cause concrete injury that
would establish standing requirement even if said condition could be
avoided by turning down money. However, remand was not necessary since
plaintiffs' lawsuit was not meritorious since requirements of IDEA,
which had been enacted prior to No Child Left Behind Act, were
subordinate to No Child Left Behind Act.
Is the implication that the NCLB would trump any provision of of IDEA
which conflicted with it?
FC v. Palmyra Board of Education (New Jersery Admin
decision
on Section 504)
- Goals and objectives
- Parents' transportation costs
http://lawlibrary.rutgers.edu/oaldecisions/initial/eds11898-96.html
"Petitioner F.C., who is fifteen years old, is a qualified handicapped
person under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.
794,
because he has Attention Deficit Hyperactivity Disorder ("ADHD").
Petitioner
alleges that respondent has failed to develop and implement a Section
504
accommodation plan which adequately addresses both his academic and
affective
needs. Pursuant to Section 504 and its implementing regulation, 34 CFR
104.1 to 104.61, petitioner initially sought a Section 504 plan which
included
specific goals and objectives in the areas of self-image and
self-esteem,
and one to one instruction in written language during the school day.
He
also sought a Section 504 evaluation, as well as a change in case
manager
and Section 504 compliance officer. "
and from the end, the HO's decision...
"Since respondent's Section 504 accommodation plan for petitioner was
seriously deficient, despite the good faith efforts of petitioner's
parents
to obtain an appropriate program for him, the parents were entitled to
seek an alternative private placement. Doing their best to locate an
appropriate
program and placement, they enrolled petitioner in a day placement at
the
Hill Top Preparatory School. The credible evidence in the record
demonstrates
that petitioner is receiving an adequate education at Hill Top. Thus, I
CONCLUDE that petitioner's parents are entitled to reimbursement for
the
cost of his private placement and transportation expenses. This
reimbursement
should be for the period from his enrollment at High Top Preparatory
School
to the present, and should continue so long as respondent fails to
offer
petitioner a free appropriate public education, pursuant to Section 504
of the Rehabilitation Act of 1973 and 34 CFR 104.33.
ISBE5104 Chelsea B. vs. Bd
of Ed of City of Chicago #299
It is the finding of this due process hearing that
the
district provided the student with an appropriate education from
January
2005 to the present. However, the district had cause to know the
student
required a case study evaluation in September 2004 when she reenrolled
in her school of origin. As stated above, there is no justification to
order the district to place the student in a more restrictive setting.
However, ordering the district to provide the student with after school
tutoring to compensate for the special education service she did not
receive
is warranted.
An order directing the district shall provide the
student
with after school tutoring is warranted
ISBE4498 Sarah N. v. Yorkwood Community Unit Sch
Dist 225
(pdf, 471 KB)
Student not eligible for special education as her
ADHD
did not adversely effect her academic performance and thus did not meet
"other health impairment."
ISBE4990 Octavia B. v. Bd Ed City of Chicago #299
(pdf, 871 KB)
Octavia B is a Stacey Stutzman decision against CPS,
ordering "immediate"
placement at Acacia for a 7 yr old girl in 2d grade
who
is a non-reader.
IHO found substantial child find violations,
inadequate
assessments and an
inadequate IEP. It is noteworthy that she
issued
an interim order prior to
the hearing that required IEE at public expense in
areas
of central
auditory processing, speech/language and social
emotional
status, domains
which were ignored when CPS conducted an initial
evaluation
in response to
the due process request. She also ordered CPS to pay
for the evaluator to
attend an IEP meeting.
ISBE4948 Christopher J. v. Bd of Ed of City of Chicago #299
Interim order (pdf 28 KB) (denying IEE)
Decision (pdf 159 KB)
Christopher J is a 13 year old boy now in 7th grade;
CPS provided only
speech from 1st through 6th grade, when they did a
full
evaluation in
response to a due process request. Showing
again
that CPS has difficulty
doing it right even when they know a due process case
is pending, the
evaluation found this boy to have full scale IQ of
53,
and labeled him
cognitively impaired. IEE's established
non-verbal
cognitive skills in the
average range. Mary Schwartz found child-find
violations,
CPS's
assessments to be inadequate, and inappropriate
IEP's.
She ordered placement
at Acacia, and directed payment for IEEs obtained by
the parent, but denied
payment for evaluators to attend IEP meeting.
IHO
also ordered extensive
compensatory services: tutoring at home by a
special
ed certified teacher
for two hours per week for two years, and an
additional
60 mpw of speech
services for two years.
Brett
K v. Momence
SD pdf (2.45 MB)
Decision by Judge Zagel regarding transportation for a 9 yr old boy
with autism, who is nonverbal and incontinent. The family lives
in
Kankakee County, and the boy's IEP provides for a private therapeutic
day
placement in southern Cook, about 50 miles away. The SD, in order
to save money, arranged for a neighboring SD bus to pick up the boy,
with
the result that his outbound trip was regularly two hours or
more.
The return trip was about 1 ½ hours. Judge Zagel upheld
IHO
Hervey's
decision that the record lacked sufficient evidence of a direct impact
from the extra travel time on educational progress. There was
also
an attorney fee claim on some other issues that Hervey did rule
favorably,
such as requiring an aide on the bus (the SD refused to provide, in the
IEP, for an aide on the bus); however, Zagel found the relief obtained
to be deminimus
Jujuan R v. CPS, html, ISBE 07-0023
Susan Cox decision against CPS. The case involves a
horrible
history of misdiagnosis, failure of evaluation, violation of procedural
safeguards. and failure to disclose an evaluation that had been
performed
that showed the student had been misdiagnosed and
mislabeled.
As relief, placement at Oconomow, two years of compensatory, and full
impelmentation
of all the recommendaitons of the private evaluators.
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