Bd. of Educ. of Tp. High School Dist., 211 v. Ross, 05-3700.

• Citation: 486 F.3d 267
• Decision Date: 11 May 2007
• Docket Number: No. 05-3700.,05-3700.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Parties: BOARD OF EDUCATION OF TOWNSHIP HIGH SCHOOL DISTRICT NO. 211, Plaintiff-Appellee, v. Michael and Diane ROSS, individually and as next friends of Lindsey Ross, a minor,<SMALL><SUP>1</SUP></SMALL> Defendants-Third-Party Plaintiffs-Appellants, v. Illinois State Board of Education, Third-Party Defendant-Appellee.

486 F.3d 267

BOARD OF EDUCATION OF TOWNSHIP HIGH SCHOOL DISTRICT NO. 211, Plaintiff-Appellee, v. Michael and Diane ROSS, individually and as next friends of Lindsey Ross, a minor,¹ Defendants-Third-Party Plaintiffs-Appellants, v. Illinois State Board of Education, Third-Party Defendant-Appellee.

No. 05-3700.

United States Court of Appeals, Seventh Circuit.

Argued September 21, 2006.

Decided May 11, 2007.

Jack J. Carriglio, Meckler, Bulger & Tilson, Chicago, IL, Neal E. Takiff (argued), Whitted & Cleary, Northbrook, IL, for Plaintiff-Appellee.

Brett E. Legner (argued), Office of the Attorney General, Civil Appeals Division, Chicago, IL, for Defendant-Appellee.

Nicholas B. Gorga (argued), Latham & Watkins, Chicago, IL, for Defendants-Appellants.

Wendy N. Enerson, Sonnenschein, Nath & Rosenthal, Chicago, IL, for Amicus Curiae, National Disability Rights Network.

Cynthia M. Hansen, Robbins, Schwartz, Nicholas, Lifton & Taylor, Chicago, IL, for Amicus Curiae, Illinois Ass'n of School Boards and Illinois Ass'n of School Administrators.

Before BAUER, CUDAHY, and WOOD, Circuit Judges.

WOOD, Circuit Judge.

This case is about the responsibility of a public school district to provide an education to a student afflicted with Rett syndrome, which is a "neurodevelopmental disorder characterized by normal early development followed by loss of purposeful use of the hands, distinctive hand movements, slowed brain and head growth, gait abnormalities, seizures, and mental retardation." See National Institute of Neurological Disorders and Stroke, Rett Syndrome Fact Sheet, http://www.ninds.nih. gov/disorders/rett/detail_rett.htm?css= print (visited April 9, 2007) ("Rett Syndrome Fact Sheet"). The student's parents, Michael and Diane Ross, believed that High School District No. 211 failed to provide their daughter, Lindsey, who suffers from Rett syndrome, with the free appropriate public education in the least restrictive environment to which she is entitled under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1414. An independent hearing officer held a lengthy hearing and upheld the District's placement of Lindsey. Both the District and Lindsey's parents then turned to the district court, which granted summary judgment to the District on all counts.

Shortly after the district court issued its opinion in this case, Lindsey and her parents filed a second lawsuit against the District and its Director for Special Education. As we explain in the companion opinion issued today in Ross II, the district court dismissed most of the claims in the second case on the basis of claim preclusion; it dismissed some supplemental state claims without prejudice. While we appreciate that Lindsey's parents sincerely believe that her best interests would have been served better under a different plan, we conclude that the district court in both cases correctly held in favor of the school authorities and we therefore affirm.

I

In approaching this kind of case, a district court must take as the basis of its decision the administrative record that the independent hearing officer compiled; it then has the discretion to admit additional evidence to supplement the record. 20 U.S.C. § 1415(i)(2)(C). Once the record is complete, the court is to base its decision on "the preponderance of the evidence" and to grant "such relief as [it] determines is appropriate." Id. The Supreme Court has interpreted this to require the initial reviewing court—that is, the district court—to make an independent decision based on the preponderance of the evidence. See Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). At the same time, the court must give "due weight" to the determinations made during the state administrative process. Id. The Rowley Court emphasized that "the provision that a reviewing court base its decision on the `preponderance of the evidence' is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review." Id. See Patricia P. v. Bd. of Educ. of Oak Park, 203 F.3d 462, 466 (7th Cir.2000).

Rowley described the reviewing court's task as follows:

[A] court's inquiry in suits brought under § 1415(e)(2) is twofold. First, has the State complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act's procedures reasonably calculated to enable the child to receive educational benefits? If these requirements are met, the State has complied with the obligations imposed by Congress and the courts can require no more.

458 U.S. at 206-07, 102 S.Ct. 3034. We have interpreted this to mean that we should review the administrative record and the district court's findings of fact deferentially. We will reverse only if those findings are clearly erroneous. See Heather S. v. State of Wisconsin, 125 F.3d 1045, 1053 (7th Cir.1997). We review questions of law, as usual, de novo. Like the district court, we must refrain from imposing our own notions of sound educational policy for those of the responsible school authorities. Id. at 1052-53. We note as well that at the administrative level, the Supreme Court has held that the burden of proof in a hearing challenging an educational placement decision is on the party seeking relief. See Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 126 S.Ct. 528, 531, 163 L.Ed.2d 387 (2005). In this case, the parties seeking relief (in the form of a different placement for Lindsey) were Lindsey and her parents; under Schaffer, they had the burden of proof.

II

Victims of Rett syndrome are almost all female, because it is caused by mutations on a gene found on the X chromosome — males with the damaged gene usually die shortly after birth. See Rett Syndrome Fact Sheet. The severity of any given person's disease varies. The district court described Lindsey's condition as follows:

Lindsey is nonverbal and suffers from apraxia, an inconsistent ability to control the body and limbs. She has, however, a higher level of motor functioning than the majority of girls with Rett Syndrome; among other things, Lindsey can swim, ski, and ride a horse. Lindsey also has a higher level of cognitive functioning than most girls with Rett Syndrome. Though the average mental age of girls afflicted with Rett Syndrome is estimated to be eight to ten months, doctors estimate Lindsey's cognition to be between the seven and twelve year old equivalency. . . . It should be noted, however, that because girls with Rett Syndrome are nonverbal and have poor motor control, it is quite difficult to measure their cognitive ability accurately.

Among the many effects of Rett Syndrome are that Lindsey's hands get locked together, and she needs assistance in unlocking them. In addition, and perhaps significantly for purposes of this case, Lindsey engages in vocalizations, which can be loud and last for anywhere from a few seconds to over a minute. The cause and meaning of the vocalizations is not known with any certainty. Rett Syndrome also causes Lindsey to engage in self-injurious behaviors, which include hitting herself on the chin or head, the cause of which is also unknown. Lindsey also sometimes strikes others, usually by butting them with her head.

Until she entered high school, Lindsey attended regular public schools in her neighborhood — in educational jargon, she was "mainstreamed." In the fall of 2001, she entered James B. Conant High School, in Hoffman Estates, Illinois; Conant is one of the five high schools within District 211. That year, she was placed in five regular education classes; she received extensive assistance from her own special education teacher and teacher's aide, who accompanied her throughout the day. They provided whatever academic or physical services she required, including behavioral interventions, calming measures, assistance with hygienic needs, and help with communication devices. Conant provided a work room for her private use, for times when she needed individualized instruction or she had to be separated from the other students. Occasionally, separation became necessary. For example, in May of her freshman year, she head-butted two staff members, causing nasal fractures in both. Following these incidents, she was removed from Conant. Over the summer, her parents had her evaluated by a specialist in Alabama, who recommended continued monitoring. At approximately the same time, the District arranged for a multidisciplinary review of Lindsey's case to be conducted by Dr. Bennett Leventhal and Dr. Marrea Winnega of the University of Chicago Developmental Disorders Clinic. This review concluded that Lindsey's behavior was interfering with her ability to make educational progress and recommended that she be taken out of Conant and placed in a special education setting.

On August 23, 2002, the District held a meeting for the purpose of reviewing Lindsey's "Individualized Education Plan" (IEP) for her upcoming sophomore year. The District recommended special placement, but Lindsey's parents strongly maintained that she would be better off remaining at Conant. They requested an administrative hearing and indicated that they wanted to exercise the "stay put" provision of the IDEA, 20 U.S.C. § 1415(j), under which an eligible student remains in her current school or program during the pendency of an administrative hearing. Litigation erupted at that point: the District filed suit in the federal district court, asking it to prohibit the parents from invoking the "stay put" provision. The court granted a temporary restraining order, but matters calmed down somewhat when the parents decided to keep Lindsey at home rather than put her in the special education setting.

Under a compromise memorialized in an agreement dated November 5, 2002, the parties agreed that Lindsey was to be returned...