Board of Educ. of Community Consol. School Dist. No. 21, Cook County, Ill. v. Illinois State Bd. of Educ., 90-3599
| Decision Date | 21 August 1991 |
| Docket Number | No. 90-3599,90-3599 |
| Citation | 938 F.2d 712 |
| Parties | 68 Ed. Law Rep. 987 BOARD OF EDUCATION OF COMMUNITY CONSOLIDATED SCHOOL DISTRICT NO. 21, COOK COUNTY, ILLINOIS, Plaintiff-Appellant, v. ILLINOIS STATE BOARD OF EDUCATION, Douglas C. Cannon and Sheldon and Pauline Brozer on Behalf of Adam Brozer, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Marian C. Haney, Eugene G. Bruno, Fay Hartog-Rapp, Joan E. Gale, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., for plaintiff-appellant.
Mary Ellen Coghlan, Asst. Atty. Gen., Office of the Atty. Gen., Michael D. Gerstein, Chicago, Ill., for defendants-appellees.
Before CUMMINGS, WOOD, Jr. and FLAUM, Circuit Judges.
Adam Brozer is a fifteen-year-old junior high school student who is handicapped primarily by a behavior disorder and also by a learning disability. In this appeal, brought pursuant to the Education of the Handicapped Act, 20 U.S.C. Sec. 1400 et seq. ("EHA"), 1 the sole issue is whether the district court erred in affirming an order of the Illinois State Board of Education directing that Adam be placed in a private day school near his family's residence in Wheeling, Illinois.
Adam was first identified as behavior disordered in May 1986. His school district, here the plaintiff, recommended that Adam be placed in the Student Support Center ("SSC") of the Kilmer School, a public school in Buffalo Grove, Illinois. Adam's parents acquiesced in the recommendation after initially resisting, and Adam was placed in an educational program run through the SSC at Kilmer.
From February 1987 through the end of the 1988-1989 school year, Adam progressed moderately, receiving grades in the "B" to "C" range. Adam's classroom teacher provided extensive services for his behavior disorder in the 1988-1989 school year, but his behavior deteriorated. He was at times disruptive and violent. The district became concerned that adequate support services would not be available to Adam the following year at Holmes Junior High School in Wheeling. After holding a multi-disciplinary staff conference in February 1989 to discuss appropriate placements, the district recommended that Adam be placed at the Behavior Education Center at Jack London School, also in Wheeling ("BEC/Jack London"). BEC/Jack London is an alternative public school for students who suffer mainly from severe behavioral disorders.
In May 1989 another multi-disciplinary staff conference was held to formulate the "individualized educational program" or At Holmes, Adam's behavior worsened rapidly. One of his teachers described him as "out of control," and he was failing all of his first semester classes. Because the Brozers withdrew their consent for Adam to be disciplined in school or to receive social services, Adam's teachers could not as easily intervene to teach Adam to behave responsibly.
IEP, required under the EHA. See 20 U.S.C. Sec. 1401(a)(18). Again the district recommended the BEC/Jack London placement. The Brozers objected, preferring that Adam be placed at the Student Support Center at Holmes Junior High. The district deferred, and Adam started junior high school at Holmes in the fall of 1989.
On November 11, 1989, at a third multi-disciplinary staff conference, the MDC team concluded that Adam's placement at Holmes was failing to meet his educational needs. The district again recommended a more restrictive placement for Adam at BEC/Jack London. When Adam's parents refused to consent to this placement, the district initiated the informal due process review procedure established by 20 U.S.C. Sec. 1415(b)(1)(E) to determine the appropriate placement for Adam.
The Level I (local review) hearing was held on February 23 and 28, 1990. Adam's parents opposed the BEC/Jack London placement on the grounds that because Adam was not mainly behavior disordered, the BEC/Jack London facility did not suit his needs. The Level I hearing officer agreed with the district that Adam was primarily behavior disordered and only secondarily learning disabled. The hearing officer also noted the "irreconcilable differences" that had developed between the Brozers and the district. She listed actions taken by the Brozers which impeded the district's efforts to aid Adam's education. Among these were: 1) the parents' refusal of support services for Adam; 2) the parents' refusal to supply Adam's medical history to his school; 3) the parents' refusal to allow detention or quiet lunches to be used as intervention strategies for Adam; 4) the fact that the parents had made derogatory comments about school staff members in Adam's presence, with the effect of undermining the school's educational programs. In light of these problems, the Level I hearing officer found that Adam's education could only "be effectuated if the parents are not involved on a continuous basis in second guessing * * * the disciplinary efforts of the educators." To this end she ordered that Adam be enrolled, not at BEC/Jack London, but at public expense at a private residential school, the Arden Shore Residential Educational Facility in Lake Bluff, Illinois. The hearing officer ordered that Adam be placed at BEC/Jack London until Arden Shore could accommodate him.
The Brozers appealed the Level I decision and order, requesting at the Level II (the state educational agency) hearing that Adam be placed either at Holmes or at a private day placement closer to home than Arden Shore. The Level II officer, like the Level I officer, noted the extremely adversarial relationship between the Brozers and the district, likening the Brozers' mindset to a "siege mentality." He agreed that "the state of mind of the parents [was] likely to affect the success or failure of the District's proposed placement at Jack London School." In fact, he stated that because the district's proposed placement had been "poisoned" in Adam's mind by his parents, there was "no reason to expect that the [BEC/Jack London] placement will be successful." The Level II officer thus concurred in the district's judgment that Adam needed a more restrictive placement than Holmes. However, he felt the Level I officer had not upheld her obligation to order the least restrictive placement that would still meet Adam's needs. See 20 U.S.C. Sec. 1412(5). Specifically he did not feel that the evidence supported the Level I officer's finding that Adam needed to be enrolled at a private residential school. He ordered the school district to find Adam a placement at a private day school within 30 minutes commuting distance from the Brozers' residence or within 10 miles from the edge of Adam's school district.
The school district appealed to federal district court pursuant to 20 U.S.C. Sec. 1415(e)(2). It contended that the Level II
hearing officer erred in considering the Brozers' hostility to the BEC/Jack London placement as a part of his analysis of whether BEC/Jack London was an appropriate placement under the EHA. It requested an order placing Adam at BEC/Jack London. The district court entered summary judgment affirming the Level II hearing officer's order, and the school district appealed to this Court. 2
The Education for the Handicapped Act provides federal funds to assist states in educating handicapped children. To receive funds, a state must provide each handicapped child with a "free appropriate public education" tailored to his or her needs by an "individualized educational program." 3 The Supreme Court has defined a "free appropriate public education" as one which guarantees a reasonable probability of educational benefits with sufficient supportive services at public expense. See Board of Education v. Rowley, 458 U.S. 176, 188-189, 102 S.Ct. 3034, 3042, 73 L.Ed.2d 690 (1982). A two-part test is used to evaluate a state's compliance with the mandates of the EHA:
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?
Rowley, 458 U.S. at 207, 102 S.Ct. at 3051. If the state has satisfied the procedural requirements of the EHA and the program developed by the state is designed to enable the handicapped child to receive educational benefits, the courts can require no more. The purpose of the EHA is to "open the door of public education" to handicapped children, not to educate a handicapped child to his or her highest potential. Id. at 192, 102 S.Ct. at 3043.
The issue on appeal is narrowly focused on the second of the two questions posed in the Supreme Court's test. The parties now agree on the proper characterization of Adam's handicaps. The state has complied with the procedures set forth in the EHA. The question is simply whether the BEC/Jack London placement recommended by Adam's school district was inappropriate for Adam and whether the private day placement ordered by the Level II hearing officer is indeed reasonably calculated to be of educational benefit to Adam.
Because judges are not trained educators, judicial review under the EHA is limited. When reviewing outcomes reached through the administrative appeals procedures established by 20 U.S.C. Secs. 1415(b) and (c), a district court can hear additional evidence and "make an independent decision as to whether the requirements of the act have been satisfied * * * based on a preponderance of the evidence." Lachman v. Illinois State Bd. of Educ., 852 F.2d 290, 293 (7th Cir.1988), certiorari denied, 488 U.S. 925, 109 S.Ct. 308, 102 L.Ed.2d 327. However, it must give "due weight" to the results of those proceedings, id., bearing in mind not "to substitute [its] own notions of sound educational policy for those of the school authorities which they review." Rowley, 458 U.S. at 206, 102 S.Ct. at 3051. At the Court of Appeals level...
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