Bohn v. Cedar Rapids Cmty. Sch. Dist., 15 cv 106 EJM

• Decision Date: 18 November 2016
• Docket Number: No. 15 cv 106 EJM,15 cv 106 EJM
• Parties: CATHERINE BOHN, as guardian for Thomas Cook, Plaintiff, v. CEDAR RAPIDS COMMUNITY SCHOOL DISTRICT, et al., Defendants.
• Court: U.S. District Court — Northern District of Iowa

CATHERINE BOHN, as guardian for Thomas Cook, Plaintiff, v. CEDAR RAPIDS COMMUNITY SCHOOL DISTRICT, et al., Defendants.

No. 15 cv 106 EJM

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF IOWA CEDAR RAPIDS DIVISION

November 18, 2016

ORDER

Before the court are (1) plaintiff's resisted motion for leave to file her initial brief on the merits, (2) defendants' resisted motion to dismiss and request for sanctions, both filed October 4, 2016, and (3) the merits of the case. Motion for leave to file initial brief granted. Motion to dismiss denied. Judgment for defendants on the merits.

This case is an appeal by a guardian for a disabled student, Thomas Cook, under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400 et seq., from a decision of an Administrative Law Judge in a special education due process proceeding. This court has jurisdiction under 28 U.S.C. §1331.

Plaintiff's motion for leave to file her initial brief and defendants' motion to dismiss both arise from the same fact. That fact is that plaintiff's counsel, after missing multiple time deadlines and violating multiple court orders as to length of brief, again violated this court's Order filed September 1, 2016, that the merits brief be no more than 50 pages and be filed by no later than October 3, 2016. Plaintiff filed a brief on October 4, 2016, of 53 pages in length. This is clearly a violation of this court's order, and merely the latest in a string of such violations. However, in the interest of justice, and in order to not punish the client, here a young disabled student, for the sins of the attorney, the court will reluctantly grant the motion for leave to file the offending brief and deny the motion to dismiss, in order to reach the merits. Further provision and remedy for the attorney violations will be discussed later in this opinion.

This case began when Plaintiff filed a due process complaint under the IDEA with the Iowa Department of Education on February 14, 2014. PDF¹ 21, p. 690. Plaintiff alleges numerous procedural and substantive violations of the IDEA relating to most aspects of Thomas's educational program. See PDF 21, pp. 690-715. Defendants deny that they violated the procedural or substantive requirements of the IDEA and state that Thomas at all times was provided with a Free Appropriate Public Education (FAPE), as required by the IDEA.

The case was heard by Administrative Law Judge (ALJ) Christie Scase on September 17, 18, 19, 22, and 23, and November 17-21, 2014. See id. at 521. Both sides were represented by counsel at the hearing. Numerous educators from the defendants District and the Area Education Agency (AEA) and a large number of witnesses personally familiar with Thomas testified in the course of the ten-day administrative hearing, and Thomas himself. The ALJ received approximately 2600 pages of exhibits into evidence (1750 from the Plaintiff and 850 from the Defendants). See id. at 522. Following the close of the hearing, Plaintiff and Defendants submitted extensive post-hearing legal briefs for the ALJ's consideration.

After reviewing the extensive record before her, the ALJ rendered a 54-page decision on July 2, 2015. PDF 21, pp. 520-573. The ALJ concluded that Defendants"complied with the mandates of the IDEA and provided Thomas Cook with an [ Individual Education Plan (IEP) ] reasonably calculated to allow him to receive some educational benefit. Respondents prevail on all issues and the Complainant is entitled to no relief." PDF 21, p. 573. The ALJ's ruling was based on 31 pages of findings of fact supported by evidence contained in the record from the administrative hearing. On September 29, 2015, Plaintiff appealed the ALJ's decision to this court.

A concise listing of plaintiff's main arguments would be appropriate at this point, but such is extremely difficult in this case, due to the poor presentation of plaintiff's case. As the ALJ noted, correctly in the opinion of this court, "[Plaintiff's] presentation is at times circular and often conclusory, making it extremely difficult to distinguish fact claims from legal argument." ALJ Decision, p. 39. The fact that the record, which is 6,724 pages, largely undigested by plaintiff's counsel, briefs, and statements in this case are so long make that situation worse, not better. That said, plaintiff's three main arguments seem to be:

1. Thomas' IEP team failed to conduct an adequate enough psychological evaluation of Thomas to determine the "root cause" of his performance limitations and so identify his unique needs,

2. The District failed to comply with the IDEA'S procedural requirements for post-secondary transition planning, and

3. The District generally failed to provide a sufficient accommodation for Thomas' disability.

The facts of the case are that Thomas Cook was a high school student attending Kennedy High School, a comprehensive high school in the District The ALJ found that "Thomas is consistently described by his teachers as a quiet, polite, and pleasant young man" who "enjoys reading fiction for pleasure" and "working with his hands, especially working on cars." PDF 21, p. 523. The ALJ noted that "Thomas convinced the owner ofan auto-shop...to give him a job." Id. The ALJ also found that "Thomas understands the accommodations that he is entitled to receive under his IEP, but sometimes refuses to accept them because he does not think it was fair to other students and does not want people to find out" that he is in special education. Id. She further stated that "Thomas' motivation and performance varies from class to class, based in part upon the pace and difficulty of the course and in part upon his interest in the subject and comfort with the teacher." Id. The ALJ ultimately concluded that "[b]y any reasonable measure, Thomas received not merely some but substantial educational benefit from the program provided to him by [Defendants]." Id. at 573.²

Plaintiff moved with Thomas to Iowa in 2007. PDF 21, p. 525. Thomas enrolled in the District in the fall of 2008. Id. at 526. Plaintiff requested and received an evaluation of Thomas during the fall of 2008 "to gather further data to determine appropriate strategies to move Thomas toward[] grade level performance." Id. (citing PDF 11, p. 29). In the spring of 2009, Plaintiff requested an Independent Education Evaluation to determine why Thomas was not closing the academic gap with his peers. Id. This evaluation was performed at the University of Iowa Hospitals and Clinics—Center for Disability and Development (UIHC) in March 2009. Id. The ALJ found that the UIHC evaluation confirmed the previous diagnoses of dyslexia, dysgraphia, and ADHD, and reported "mild concerns about Thomas's self-monitoring and organization skills," which are components of executive function. See PDF 21, p. 526 (citing PDF 11, pp. 47-48).

The ALJ reviewed Thomas's education and evaluation history prior to February 14, 2012, the beginning of the two-year period relevant to the Complaint. See PDF 21, p. 524-530. She found that Thomas had been initially evaluated by the Kennedy Krieger Institute in Baltimore, Maryland during second grade. Id. at 525. This evaluation found that Thomas was of "generally average...intelligence with specific learning disabilities, particularly in the area of reading." Id. (citing PDF 11, p. 6). The evaluation also concluded that Thomas showed signs of "attentional difficulties that will interfere with learning, behavior, and performance at his optimal capability level...compatible with a diagnosis of Attention-Deficit Hyperactivity Disorder (ADHD)." Id. (citing PDF 11, p. 7). Following this evaluation, "Thomas was identified as a student eligible for special education and related services and had an... [IEP] in place throughout the remainder of his elementary grades, middle school, and high school." Id.

The ALJ found several additional evaluations that were performed by Defendants supported the development of his IEP. These included: classroom observations conducted by an applied behavioral analyst/challenging behavior consultant from Defendant AEA in April 2011; a Functional Behavior Assessment evaluation conducted by Defendants in May 2011; a written language assessment conducted by Defendant AEA in April 2012; an additional independent educational evaluation requested by Defendants to assess Thomas in the areas of reading, writing, and spelling conducted by the UIHC in April 2012; a reevaluation conducted by Defendants pursuant to 34 C.F.R. § 300.303 in May 2012; and a reading assessment conducted by a literacy consultant with Defendant AEA requested by Plaintiff which determined why Thomas had difficulty "keeping up with grade level textbooks." Id. at 551, 561-62. The ALJ noted that other consistent sources of information about Thomas's educational performance could befound in IEP progress monitoring results, grade reports, and results from annual state-wide assessments. Id. at 562.

The ALJ noted that the IEP document used by Defendants is part of a unified, state-wide IEP document management system. PDF 21, p. 531 (citing PDF 4, pp. 29-30). The ALJ also noted that this IEP, along with the two subsequent IEPs relevant to this action, constitute "Transition IEPs," which are designed on a standard template to ensure the IEP team considers and addresses the information required by the IDEA to students of transition age.³ The ALJ explained:

Because Thomas was over age of 14 when the 2011-2012 IEP was developed, the law required his IEP to address post high school transition. His 2011-2012 IEP was in the format of a transition IEP. The results of transition assessments administered in April of 2011, including a Transition IEP Questionnaire, Independent Living Assessment, and What's your Learning Style Inventory and I Have A Plan entries completed by Thomas, as well as a parent interview. (Compl. 77) Information about Thomas' life skills, current academic progress, career interests,

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