C.B. v. Bd. of Educ.
| Decision Date | 26 August 2022 |
| Docket Number | 20-cv-00586 |
| Parties | C.B., et al., Plaintiffs, v. BOARD OF EDUC. OF CITY OF CHICAGO, DISTRICT 299, et al., Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
Plaintiff B.B., in her own capacity and as parent of C.B., brings a five-count complaint against the Board of Education of Chicago Public Schools, District 299 (CPS); Elizabeth Wagman (Wagman); and Christine Mock (Mock) (collectively Defendants),[1] R. 60, SAC ¶¶ 6-8,[2] asserting violations of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq., (Count I); Section 504 of the Rehabilitation Act of 1973 (Section 504) 29 U.S.C. § 794, for disability discrimination (Count III) and retaliation for disability-related advocacy (Count IV); and a violation of the Illinois School Student Records Act (ISSRA), 105 ILCS 10/1 et seq. (Count V). Plaintiffs also bring claims against Wagman and Mock in their individual capacities for violations of the IDEA and the First Amendment right to free speech, pursuant to 42 U.S.C § 1983 (Count II). Defendants move to dismiss all five counts pursuant to the Federal Rule of Civil Procedure 12(b)(6). R. 64, Mot. Dismiss at 1. For the following reasons, Defendants' Motion to Dismiss is granted in part and denied in part.
Background[3]
C.B. is a teenager with a speech/language impairment and specific learning disability who hopes to become an engineer one day. SAC ¶¶ 15, 17, 18. C.B. resides with his mother, B.B., within the boundaries of Chicago Public Schools (CPS). Id. ¶¶ 4-5. Due to his impairment and learning disability, C.B. qualifies for special education. Id. ¶ 17. As of the filing of the second amended complaint, C.B. attended Gary Comer Middle School (Comer), a charter school for which CPS serves as the special education local education agency. Id. ¶ 15. As such, CPS is responsible for convening Individualized Education Program (IEP) meetings, triennial assessments, and eligibility meetings related to C.B. Id. ¶ 6.
C.B. began attending CPS schools after moving to Chicago in second grade. SAC ¶ 21. When C.B. reached fourth grade, CPS assessed him and determined that he qualified for special education based on his speech-language impairment and specific learning disability. Id. ¶ 22. CPS and B.B. entered an agreement allowing C.B. to attend Cove School (Cove), a disability-segregated, separate day school that focuses on students with specific learning disabilities. Id. ¶ 23. Although the agreement did not include a termination date, CPS agreed to provide a “similarly situated” placement for C.B. if Cove became unavailable to him. Id. ¶ 24.
C.B. made significant progress during his fifth-grade year. SAC ¶ 25. During C.B.'s sixth-grade year, B.B. began to have significant concerns; at that time, C.B.'s education was governed by an IEP developed on September 23, 2016. Id. ¶ 26. B.B. expressed numerous concerns about C.B.'s stagnation in reading as well as his apparent lack of progress towards his IEP goals in spring 2017. Id. ¶ 27. Cove responded, in part, by assigning a new social worker to C.B. who introduced more appropriate activities. Id. Nevertheless, B.B. found CPS's responses to her concerns inadequate. Id.
Also during his sixth grade year, C.B. received racially charged text messages from a white peer who asked if Black people should be called “Nigga?” SAC ¶ 27(g). Instead of disciplining the white student, Cove required C.B. to work with the student and encouraged B.B. to let them be friends and play together. Id. When C.B. suggested that his class write about the incident, he was told to discuss it in private with adults only. Id. His teacher then confiscated his phone, causing Plaintiffs great stress because C.B. needed, and was permitted to have, immediate access to his mother. Id.
In August 2017, during the summer before C.B.'s seventh-grade year, C.B. received a postcard from a teacher who was involved in the previous year's academic and racially charged incidents. SAC ¶ 29. B.B. immediately emailed Cove and requested that C.B. have no further contact with this teacher. Id. ¶ 30. She also suggested Cove's staff read a book called White Teacher to better educate themselves on their own biases. Id. After briefly corresponding with Cove's director, id. ¶¶ 3133, B.B. learned that Cove gave CPS a 30-day notice of its intention to discontinue C.B.'s enrollment. Id. ¶ 34.
In September 2017, despite preparing to “release” C.B., Cove contacted B.B. to schedule C.B.'s 2017 IEP meeting. SAC ¶ 34-36. The deadline for the meeting was September 23, 2017, several days before the end of the 30-day period. Id. ¶ 36. Nevertheless, CPS directed Cove not to conduct the meeting or speech-language assessment. Id. ¶¶ 38-39. CPS also declined to work with Cove in transitioning C.B. to his next school. Id. ¶ 44. While CPS did conduct nursing and psychological assessments, it did not convene an eligibility meeting to discuss them. Id. ¶ 42. CPS also conducted C.B.'s required triennial review late. Id. ¶ 40.
In response to Cove's release of C.B., B.B. requested that CPS participate in a voluntary mediation to develop an updated IEP; CPS declined. SAC ¶¶ 45-48. B.B. also attempted to enroll C.B. in his school of residence, but CPS blocked the attempt. Id. ¶ 52. CPS then suggested several placement options, all of which B.B. found inappropriate and inconsistent with C.B.'s existing IEP. Id. ¶ 53. B.B. informed CPS staff that she did not want C.B. to enter a school geared towards students with emotional and behavioral disturbances, rather than learning disabilities. Id. ¶ 57. Instead of responding to B.B., CPS sent out two referrals. Id. ¶ 58. B.B. spoke with the intake coordinator at one of the referred schools, and they both agreed that the school's program was not appropriate for C.B. Id. ¶ 61. In turn, the school advised CPS that B.B. was upset about receiving an inappropriate referral. Id. ¶ 62. Mock stopped all communications with B.B. Id. ¶ 63-64. Mock then sent an internal email advising that C.B. needed to be removed from Cove's roster. Id. ¶ 66. On February 24, 2018, CPS purported to disenroll C.B. Id. ¶ 68.
In October 2018, B.B. requested through counsel that C.B. attend Acacia, a school that was qualified to help students with learning disabilities. SAC ¶ 74. Wagman agreed to consider that placement if and only if B.B. agreed to transport C.B. to and from school. Id. ¶ 76. Wagman also offered an alternative school that was located on a bus route but that B.B. found inappropriate. Id. Acacia eventually accepted CPS's referral, id. ¶ 80, but B.B. did not learn of this referral until after she had already enrolled C.B. at Comer. Id. ¶ 84-85. In November 2018, B.B. requested an Independent Educational Evaluation (IEE), which automatically triggered a due process filing. Id. ¶¶ 81, 82.
C.B. entered sixth grade at Comer on January 7, 2019. SAC ¶ 86. In response to CPS's direction, Comer did not convene an assessment or IEP meeting. Id. ¶¶ 86, 87. C.B. remained at Comer for several weeks but was dismissed on February 20, 2019. Id. ¶ 88.[4]
In May 2019, the Parties reached an interim agreement allowing C.B. to return to Comer. SAC ¶ 95. C.B. arrived at Comer on May 7, 2019, but was initially turned away because CPS had not informed Comer of the interim agreement. Id. ¶ 96. C.B. was allowed to return later that day. Id. ¶ 97. The interim agreement also called for prompt assessment and development of an IEP before the start of school. Id. CPS finally convened an IEP meeting on October 9, 2019, C.B.'s first since September 23, 2016. Id. ¶ 113.
After a series of continuances and scheduling issues with the Impartial Hearing Officer (IHO), the Illinois State Board of Education (ISBE) conducted a due process hearing in September 2019. SAC ¶¶ 10, 112. The hearing centered on two primary issues: 1) whether the district's psychological evaluation dated September 28, 2017 was inappropriate pursuant to the IDEA, and 2) whether C.B. was provided with a FAPE from December 2016 to December 2018. See generally R. 1-1, IHO Order at 4-5. The IHO ruled in favor of CPS on both claims and concluded that “[a]t all times in question, the District has provided the Student with a FAPE.” Id. at 38. Plaintiffs filed their original complaint on January 25, 2020. See R. 9, Complaint. Plaintiffs amended their complaint in May 2020 and again on December 2020. R. 10, 60. The present motion to dismiss the SAC followed. R. 64.
A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint. Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). Under Rule 8(a)(2), a complaint must include only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). To survive a motion to dismiss, a complaint need only contain factual allegations, accepted as true, sufficient to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. The allegations that are entitled to the assumption of truth are those that are factual, rather than mere legal conclusions. Iqbal, 556 U.S. at 678-79.
In Count I, Plaintiffs allege that CPS violated the IDEA and...
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