Bd. of Educ. of Evanston-Skokie Cmty. Consol. Sch. Dist. 65 v. Risen
| Decision Date | 25 June 2013 |
| Docket Number | No. 12 C 5073,12 C 5073 |
| Parties | Board of Education of Evanston-Skokie Community Consolidated School District 65, Plaintiff, v. D. Michael Risen, Illinois State Board of Education, and L.J., by and through his parents and next friends, James J. and Melissa C., Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
The Board of Education of Evanston-Skokie Community Consolidated School District 65 ("School District" or "District") brings this Individuals with Disabilities Education Act ("IDEA") suit, 20 U.S.C. § 1400 et seq., against L.J. and his parents. The School District is appealing the outcome of a due process hearing after the impartial hearing officer, D. Michael Risen, found that the District failed to comply with the IDEA and awarded reimbursement for some of L.J.'s tuition costs at a private school.1 Presently before the Court are the parties' cross-motions for summary judgment, R. 25, 35, and related briefing. R. 26, 29, 36, 39, 40, 49, 50, 51, 56. For the reasons set forth below, the Court grants in part and denies in part the District's motion for summary judgment and grants in part and denies in part L.J.'sparents' motion for summary judgment. In short, the Court affirms the impartial hearing officer's reimbursement award with the exception of the cost of L.J.'s tuition at The Cove School for the summer of 2011 and the cost of additional private services (beyond transportation to Cove) for the 2011-12 school year.
2003-06 (birth to age 3)
L.J. was born prematurely on April 27, 2003, at 24 weeks gestation. DSOF ¶ 7. He was hospitalized for more than three months, SD 300, and underwent numerous surgeries to his heart, lungs, eyes, and brain. DSOF ¶ 7.
Early on, it was apparent that L.J.'s premature birth would impair his development. From 2003 through 2006, L.J. received early intervention services from the State of Illinois. Id. ¶ 10. Beginning in infancy, L.J. struggled with sensory processing and was hypersensitive to noise, touch, and light. Id. ¶ 8. As a toddler, L.J. exhibited difficulties with visual and auditory distractibility and self-regulation. Id. ¶ 9. He was unable to focus on any task and engaged in disregulated behavior such as acting out, spitting, and lashing out violently. Id.2006-08 (age 3 to 5)
L.J. and his parents reside in Evanston, Illinois. PSOF ¶¶ 6-7. In 2006, as L.J. turned three, his parents brought him to the School District for evaluation. DSOF ¶ 10. In April 2006, the District conducted a special education eligibility evaluation and prepared an Individualized Education Program ("IEP"). SD299-318. The District described L.J.'s disabilities as mild delays in articulation abilities, gross motor delays, and educational delays in socialization, play, and self-care. SD302. It concluded that L.J. needed specialized instruction to address his deficit areas and gross motor needs and recommended "a small, structured, individualized program with low teacher:pupil ratio[]." Id. The District reached a similar conclusion in another IEP in April 2007: "a small, structured class with low teacher/student ratio is needed to support L.J.'s needs." C44.
From 2006 to 2008, L.J. attended the School District's half-day Services for Pre-Primary Aged Children Program ("SPPAC program"), which provided early childhood services in a small class with a low student-teacher ratio and individualized attention, as well as special education supports, services, and accommodations. DSOF ¶ 13. L.J. also received additional private speech and occupational therapy at parental expense on a weekly basis. Id. L.J.'s progress reports from his time at the SPPAC program document that he met or made expected progress toward all of his academic goals. Id. ¶ 14.
In addition to participating in the SPPAC program, L.J. also attended McGaw YMCA Children's Center, a hybrid preschool and daycare program, atparental expense. Id. ¶ 15. Unlike the SPPAC program, the YMCA program had a larger classroom with 20 children. Id. L.J. struggled to self-regulate in the larger classroom setting—punching, biting, and kicking other children—and required an adult to stay with him at all times to keep him from disrupting the class. Id.
2008-09 (age 5 to 6)
In 2008, the School District reevaluated L.J. as he turned five and was age-eligible to attend kindergarten in the fall. DSOF ¶ 17. In a January 2008 IEP, the District again concluded that L.J. needed "specialized instruction" and "a small structured individualized program to address areas of need." C56. But in April 2008, the District proposed placing L.J. in an "inclusion" general education kindergarten classroom for 76% of the school day; L.J. would receive special education services for the remaining 24% of the day. C82. Although L.J.'s neighborhood school was Lincoln Elementary ("Lincoln"), the District proposed that L.J. attend Dewey Elementary ("Dewey"). 2/3/12 Tr. at 93.
L.J.'s parents ultimately decided to delay kindergarten for a year on the advice of L.J.'s doctors, including Dr. Alan Rosenblatt, his neurodevelopmental pediatrician, and Dr. Sharon Johnson, his psychologist. DSOF ¶ 17. The consensus among L.J.'s private providers was that he was not developmentally, academically, or socially ready to perform with other children his age. 2/3/12 Tr. at 93-94.
Instead, L.J.'s parents enrolled him full-time in the YMCA preschool for the 2008-09 school year at their expense. DSOF ¶ 17. L.J.'s parents selected the YMCA program because they felt it was a positive, loving environment, he had made someprogress and some friendships there, and the YMCA had an open-door policy that allowed L.J.'s mother to be present to help L.J. 2/3/12 Tr. at 96. During that year, L.J. continued to receive private speech and occupational therapy, and received additional social-work services, including from a School District social worker. DSOF ¶ 18. L.J. continued to experience difficulties at the YMCA program. As L.J.'s father testified, 4/26/12 Tr. at 267-68.
2009-11 (age 6 to 8)
For the 2009-10 school year, L.J.'s parents did not approach the School District. PSOF ¶ 16. Instead, they enrolled L.J. in kindergarten at Baker Demonstration School ("Baker"), a private school located in Wilmette, Illinois. DSOF ¶ 19. Baker does not hold itself out as a special education provider but still accepts students with disabilities. 3/14/12 Tr. at 28-29. L.J.'s parents chose Baker because of its smaller class sizes (approximately 15 students), low student-teacher ratio, individualized teaching approach, and what they perceived as a "great feeling of overall acceptance of children who had difficulties." DSOF ¶¶ 19, 22. L.J.'s parents wanted to replicate many of the District's recommendations from its January 2008 IEP in the small school setting that Baker provided. Id. ¶ 23.
At Baker, L.J. was educated alongside his regularly-functioning classmates. Although Baker, as a private school, does not develop formal IEPs, PSOF ¶ 18, it does formulate educational plans for special needs students and allows privateproviders to come into the school to provide additional support services. DR ¶ 18. L.J. continued to receive private speech and occupational therapy at Baker and was treated by an outside behavioral specialist and other doctors. DSOF ¶ 24. L.J. made some progress and had a generally positive experience in kindergarten, but also continued to show developmental delays and often got into verbal or physical confrontations with other children. DSOF ¶ 25; PR ¶ 25.
Based on L.J.'s kindergarten experience, his parents chose to have him continue at Baker for first grade for the 2010-11 school year. DSOF ¶ 25. For first grade, Baker implemented an educational plan for L.J. that included 11 classroom interventions and 26 accommodations. Id. ¶ 27. The accommodations included one-on-one instruction when possible, modified assignments, tailored direction, frequent movement breaks, frequent verbal and visual cues, preferential seating, and transition strategies. Id. With the educational plan in place, L.J.'s first grade teacher began the school year "optimistic and delighted." Id. ¶ 28.
Unfortunately, L.J.'s classroom behavior and academic performance significantly and progressively deteriorated. Id. ¶ 26; PSOF ¶¶ 23-24. In the first few months, L.J. was falling behind in reading and math, struggling in art and drama, exhibiting anger and aggression, and disrupting the classroom. DSOF ¶¶ 26, 28-29. By early 2011, L.J. had increasing difficulties with self-regulation, impulsivity, and attention, and the academic, social, and behavioral gaps between L.J. and his classmates widened. Id. ¶ 31. Even though L.J. was a year older than his classmates after he was held back a year, he struggled academically, would callhimself "stupid," and even threatened to kill himself. Id. ¶ 32. Baker and L.J.'s parents tried various additional strategies and interventions to help L.J.—including a private, in-school reading tutor—all to no avail. Id. ¶ 35.
In February 2011, Baker's staff informed L.J.'s parents that L.J.'s needs exceeded Baker's resources and that the parents would need to find an alternative second grade placement. Id. ¶ 36. Baker's staff recommended locating another school that also offered small class sizes, but in a specialized environment with teachers highly trained in special education. 2/3/12 Tr. at 111. L.J.'s parents immediately thought of returning L.J. to the School District. Id.
2011-12 (age 8 to 9)
In February or early March 2011, L.J.'s mother informed the School District of her intent to register L.J. for second grade in the fall and requested that the District begin the case study evaluation process. DSOF ¶ 37; 2/3/12 Tr....
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