375 F.3d 603 (7th Cir. 2004), 03-3858, Alex R., ex rel. Beth R. v. Forrestville Valley Community Unit School Dist. #'221

Docket Nº:03-3858.
Citation:375 F.3d 603
Party Name:ALEX R., a minor, by and through Beth R., and Beth R., his mother and next friend, Plaintiffs-Appellants, v. FORRESTVILLE VALLEY COMMUNITY UNIT SCHOOL DISTRICT # 221, Defendant-Appellee.
Case Date:July 15, 2004
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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375 F.3d 603 (7th Cir. 2004)

ALEX R., a minor, by and through Beth R., and Beth R., his mother and next friend, Plaintiffs-Appellants,

v.

FORRESTVILLE VALLEY COMMUNITY UNIT SCHOOL DISTRICT # 221, Defendant-Appellee.

No. 03-3858.

United States Court of Appeals, Seventh Circuit

July 15, 2004

Argued April 2, 2004.

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Charles P. Fox (argued), Chicago, IL, for Plaintiffs-Appellants.

Nancy F. Krent (argued), Hodges, Loizzi, Eisenhammer, Rodick & Kohn, Arlington Heights, IL, for Defendant-Appellee.

Before EASTERBROOK, MANION, and WILLIAMS, Circuit Judges.

MANION, Circuit Judge.

Under the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1401, et seq., ("IDEA"), a state that accepts federal funding to educate disabled children must provide such children with an education that is free, public, and appropriate. Alex R. 1, through his mother, appeals from the district court's entry of judgment in favor of the Forrestville Valley, Illinois Community Unit School District # 221 ("the District"), arguing that the District did not provide him with an appropriate education from April through November 2001 and that it committed several other violations of the IDEA. We affirm.

I.

Alex suffers from a variant of the Landau-Kleffner Syndrome, a rare neurological disorder that begins in childhood and affects parts of the brain that control speech and comprehension. Children afflicted with the disorder may display symptoms that include hyperactivity, poor attention, depression, and irritability.

The District knew that Alex had the syndrome before he entered kindergarten in the late summer of 1998. In May 1998, it accordingly prepared for Alex an individualized education program ("IEP"), which is a written statement that maps out how a school district will provide an IDEA-compliant education. See 20 U.S.C. § 1414(d) (2000). The IEP called for Alex to be included in the regular-education classroom at the German Valley Grade School and provided for individualized instruction; the assistance of a classroom aide; an extended kindergarten day for instruction and therapy; and speech and language services for 60 minutes per week. The District likewise prepared IEPs for Alex in April 1999 and April 2000, modestly adjusting the program annually to meet Alex's changing needs before he progressed to the first and second grades. Although Alex exhibited behavioral problems consistent with his disability, he committed no disciplinary infractions from kindergarten through second grade.

During Alex's year in the second grade (2000-01), his parents divorced, his sister was sexually assaulted, and his disability-related behavior began to impede his learning. Exactly at what point Alex's learning began to be obstructed is unclear. The resource-room teacher who worked with Alex for all of that year testified that Alex's disability-related behavior did not impede his learning until the second half of the year, although even then learning was still possible with sufficient redirection. One of Alex's second-grade teachers, however, testified that Alex's behavior impeded his learning during the first three, and last nine, weeks of the school year. (In between, that teacher was on maternity leave and could not observe Alex.) 2 Despite

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whatever impediment to learning existed, however, Alex's record shows satisfactory progress for every course in his second grade year.

Confronted with the deteriorating situation, in February 2001 the District directed school psychologist Marlene Schuler to conduct a functional behavioral assessment of Alex. Schuler had almost a decade of experience as a school psychologist and had conducted four such assessments. She also had worked with Alex since before kindergarten. In April 2001, the District prepared a functional behavioral analysis based on Schuler's data. Its conclusion was that Alex had problems with off-task behavior and making noise.

The District also arranged a number of visits by outside consultants. Project Choices, an independent consulting group funded by the Illinois State Board of Education, observed Alex in school on April 12, September 11, and September 24, 2001. The District and Alex's mother agreed to wait until after Project Choices completed its observations and provided its input before completing a formal behavioral intervention plan to guide Alex to more appropriate behavior. In its reports, Project Choices congratulated the school for having "an excellent team of professionals" working with Alex. Project Choices also commended Alex's third-grade teacher, Denise Cheek, for having "a very welcoming classroom" and noted that Alex's aides did "a beautiful job of supporting Alex." Project Choices made several recommendations, such as breaking tasks into smaller blocks of time, that the District implemented for Alex in the third grade. The District further arranged for an observation by Geri Gelander, a specialist in low-incidence disabilities who had earlier worked with another student diagnosed with the syndrome. Gelander observed Alex on October 3, 2001, and made a number of recommendations that the District implemented.

In the meantime, in May 2001, the District's IEP team 3 prepared the IEP for Alex's upcoming year in the third grade. The third-grade IEP called for Alex to study math and social studies in the regular-education classroom, and to study reading, language, and spelling in a resource room. He was to receive special speech and language training for one hour per week; a classroom aide; occupational therapy for two hours per semester; and social-work

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services for one hour per semester.

Alex began the third grade in the late summer of 2001. At that point, he was nine years old and weighed about 150 pounds. He soon began to commit a series of violent attacks on staff members, his fellow students, and property. During a field trip on September 25 (the day after Project Choices made its last visit and rendered its compliments), Alex filled a glove with rocks and hit several other students with it. The IEP team met on September 26 and revised Alex's IEP to include an individual aide and a sensory diet.

On October 3, Alex left the school building, crossed the street to an auto body shop, and swung a piece of sheet metal at staff members who came to retrieve him. Alex refused to return, and school personnel then carried him back to school while he dragged his feet. Shortly thereafter, on October 10, the District's IEP team met to draft a behavioral intervention plan, which they completed on October 17. The plan called for various tactics, including, among other things, an adopted curriculum; more visual aids; sensory breaks; and a "water bottle with pop top." Before the plan was implemented, however, Alex became increasingly violent.

On October 11, Alex began pacing in the back of his classroom and speaking loudly. He swung his backpack near students and desktop computers and charged his individual aide, striking her. Alex then began rolling around the room, first near students' desks and then near the legs of a folding table holding computer equipment. School staff removed Alex to another classroom, where he imitated karate-style chops and kicks. He also charged his teacher, ramming her into the classroom door, clawing her, and, as a photo taken by the District reveals, leaving scratch marks on her chest.

Beginning on October 12, Alex served a five-day suspension for this incident. Also after this episode, Alex's mother filed a charge with Illinois Department of Children and Family Services, alleging that Cheek kicked Alex without justification during these events. The ensuing investigation did not find that the teacher engaged in any wrongdoing. Alex's mother also complained to the sheriff's department, but the investigation by law enforcement resulted in no charges being filed against the teacher. In the wake of these events, school superintendent Lowell Taylor wrote a memo to staff members, dated October 16, in which he instructed that "[f]light risk will be responded to by summoning law enforcement. Faculty and staff should not put themselves or others at unreasonable/substantial risk because of Alex's violent tendencies."

On October 19, Alex left school during the day and walked home, while an aide and the principal followed him. On October 22, he once again became disruptive in class. After school staff evacuated the other students, Alex pulled papers from the wall and tore them. He rifled through other students' desks, taking pencils and biting them in half. He kicked a bucket of Leggos across the room. The District's photos of the aftermath of this disruption reveal a shambles. Beginning on October 23, Alex served a two-day suspension for this incident.

The IEP team again met on October 24 and revised Alex's IEP to place him in the regular-education classroom at the Leaf River Grade School, in accordance with the request of Alex's mother that he be reunited there with one of his favorite teachers, who had transferred to that school. Alex was to have an individual aide; occupational therapy for two hours a semester;

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speech and language therapy for one hour per week; and social work services for one hour per semester. On October 26, Alex began at the new school. Around lunchtime on that day, a caseworker from the Department of Children and Family Services arrived to investigate a charge against Alex's mother regarding a problem at home. Alex met the caseworker in a conference room, but then left the room rolling on a chair into his classroom, where he hit another student and rammed the teacher several times.

Although the teacher tried to stop...

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