Chi. Teachers Union v. DeVos

• Decision Date: 19 June 2020
• Docket Number: No. 20-cv-02958,20-cv-02958
• Citation: 468 F.Supp.3d 974
• Parties: CHICAGO TEACHERS UNION, Plaintiff, v. Betsy DEVOS, in her official capacity as the Secretary of the United States Department of Education; United States Department of Education; and Board of Education of the City of Chicago, Defendants.
• Court: U.S. District Court — Northern District of Illinois

468 F.Supp.3d 974

CHICAGO TEACHERS UNION, Plaintiff,

v.Betsy DEVOS, in her official capacity as the Secretary of the United States Department of Education; United States Department of Education; and Board of Education of the City of Chicago, Defendants.

No. 20-cv-02958

United States District Court, N.D. Illinois, Eastern Division.

Signed June 19, 2020

Michael Paul Persoon, Thomas Howard Geoghegan, Despres Schwartz & Geoghegan, Chicago, IL, Willem Watson Bloom, Despres, Schwartz, and Geoghegan, Ltd., for Plaintiff.

AUSA, Abraham Judson Souza, United States Attorney's Office, Chicago, IL, for Defendant Betsy DeVos.

AUSA, Patrick Walter Johnson, Abraham Judson Souza, United States Attorney's Office, Chicago, IL, for Defendant United States Department of Education.

Nicole Beth Bazer, Franczek Radelet P.C., J. Ernest Mincy, III, Board of Education, City of Chicago, Kaitlin Therese Salisbury, Chicago Public Schools, Chicago, IL, for Defendant Board of Education of the City of Chicago.

MEMORANDUM OPINION AND ORDER

JOHN F. KNESS, United States District Judge

This case concerns one of the myriad challenges presented by the COVID-19 crisis: how best to teach children—specifically those who need special services—during a time when the schoolhouse door remains closed for safety. In this one-count action, CTU alleges that the Secretary of the United States Department of Education, the Department itself, and the Board of Education of the City of Chicago violated the Administrative Procedures Act ("APA") by not asking Congress for authority to waive certain documentation requirements relating to special education and services for children. According to CTU, by "failing to waive" these requirements, Defendants have acted arbitrarily and capriciously and caused CTU's members to be "diverted" by a "massive bureaucratic distraction." CTU seeks a temporary restraining order and preliminary injunction relieving CTU members from the obligations that Defendants have allegedly refused to waive.

Although the Court is sympathetic to the challenges inherent in providing remote special education and services, the legal deficiencies in CTU's case are rife. As explained below, CTU likely lacks standing to proceed in federal court. CTU also faces significant barriers under the APA, and with respect to the Board of Education, CTU has not pleaded a viable independent claim. CTU has thus not met the threshold requirement for an injunction of showing some likelihood of success on the merits of its case. As a result, the Court denies CTU's motion for preliminary injunctive relief.

I. BACKGROUND

For children who require special education and services, two provisions of federal law are particularly relevant: the Individuals with Disabilities Education Act ("IDEA") ( 20 U.S.C. § 1400, et seq. ) and Section 504 of the Rehabilitation Act of 1973 ( 29 U.S.C. § 701, et seq. ). Children who are eligible for special education and services under the IDEA must be provided an "individualized educational program," or "IEP." 20 U.S.C. § 1401(9)(D), (14). An IEP "is the means by which special education and related services are ‘tailored to the unique needs’ of a particular child." Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. , RE–1 , ––– U.S. ––––, 137 S. Ct. 988, 994, 197 L.Ed.2d 335 (2017) (quoting Bd. of Ed. of Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley , 458 U.S. 176, 181, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) ). The IEP "sets out the child's present academic and functional performance, establishes measurable academic and functional goals for the child, and states the special education and related services that will be provided for the child." Middleton v. D.C. , 312 F. Supp. 3d 113, 121 (D.D.C. 2018) (citing 20 U.S.C. § 1414(d)(1)(A) ).

Every IEP must be drafted by a team that includes the child's parents or guardians, the child's teacher, a representative of a local educational agency, and, whenever appropriate, the child. 20 U.S.C. § 1414(d)(1)(B). This team reviews the child's progress "periodically, but not less frequently than annually, to determine whether the annual goals for the child are being achieved." Id. § 1414(d)(4)(A)(i). Further, the IEP team is required to "revise[ ] the IEP as appropriate to address," among other things, "any lack of expected progress toward the annual goals and in the general education curriculum, where appropriate; [or] ... the child's anticipated needs; or ... other matters." Id. § 1414(d)(4)(A)(ii). At a minimum, the IEP must be "reasonably calculated to enable [the] child to make progress appropriate in light of the child's circumstances." Endrew F. , 137 S. Ct. at 999.

It is undisputed that the COVID-19 pandemic has upended nearly every aspect of American life, and education is no exception. In attempting to address the nationwide effects of the pandemic, Congress passed the Coronavirus Aid, Relief and Economic Security Act ("CARES Act") ( Pub. L. No. 116-136, 134 Stat. 281 (Mar. 27, 2020). It constitutes both the largest economic stimulus package in United States history and an effort to adapt laws and practices to current circumstances. To this latter end, the CARES Act effected modifications to laws and regulations governing the administration of healthcare, taxes, entitlement benefits, mail delivery, student loans, retirement planning, credit reporting, and—most pertinently here—education. Id.

To fit existing federal education regulations to these changed circumstances, Congress allowed the Secretary to waive select, specifically-enumerated statutory and administrative rules. Id. § 3511(a), (b). Not included was the IDEA/Rehabilitation Act requirement that school districts provide free and appropriate public education ("FAPE")—the provision from which are derived regulations requiring schools to prepare IEPs. 20 U.S.C. § 1400(d)(1)(A) ; 34 C.F.R. §§ 300.201, 300.320-22. But Congress was not completely silent concerning provisions not addressed by the CARES Act: rather, Congress instructed the Secretary to recommend "any additional waivers ... the Secretary believes are necessary to be enacted into law to provide flexibility to States and local educational agencies to meet the needs of students." Id. § 3511(d)(4).

On April 27, 2020, the Secretary submitted her recommendations. R. 10-1.¹ Although the Secretary's report to Congress addressed a number of issues, it did not include a recommendation that the learning plan requirements be waived. Id. Quite the opposite: the Secretary explicitly stated that "[t]he Department is not requesting waiver authority for any of the core tenets of the IDEA or Section 504...." Id. at 14. According to the report, the Department's position was based on the following "principles":

• Schools can, and must, provide education to all students, including children with disabilities;

• The health and safety of children, students, educators, and service providers must be the first consideration;

• The needs and best interests of the individual student, not any system, should guide decisions and expenditures;

• Parents or recipients of services must be informed of, and involved in, decisions relating to the provision of services; and

• Services typically provided in person may now need to be provided through alternative methods, requiring creative and innovative approaches.

Id.

On May 19, 2020—three weeks after the Secretary issued her recommendations—CTU filed this one-count action against the Department of Education, the Secretary in her official capacity, and the Board of Education of the City of Chicago (the "Board"), for alleged violations of Section 706 of the Administrative Procedures Act ( 5 U.S.C. § 551, et seq. ). R. 1.² CTU asserts that the Secretary acted arbitrarily and capriciously when she declined to exercise her authority under the CARES Act to recommend waiving provisions of the IDEA and Section 504. According to CTU, those provisions require CTU's members to draft remote learning plans for students with special education needs before the end of the current school year. Id. ¶¶ 1-5.

CTU joined the Board as "an indispensable party defendant for purposes of injunctive relief." Id. ¶ 9. CTU contends that the Board "is currently requiring what appear[s] to be wholesale drafting from scratch of new remote learning plans to replace the current existing IEP's and Section 504 plans." R. 10 ¶ 4. Further, according to CTU, "[b]oth the Secretary and the ... Board ... are aware or should be aware that the requirement to re-write all these plans in a few weeks is impossible to meet, but [they] have nonetheless chosen to keep in place such requirement so as to give themselves political and legal cover from criticism." Id. ¶ 18.

On May 27, 2020, CTU filed a motion for a temporary restraining order and a preliminary injunction. Id. On the parties’ joint motion (R. 12), the Court entered an agreed briefing schedule (R. 13); briefing was completed on June 9, 2020. On June 12, 2020, the Court held a telephonic hearing at which all parties appeared and presented argument. R. 26.

CTU's motion seeks preliminary injunctive relief that: (1) bars all defendants from "requiring the case managers, clinicians, and other professionals in the Chicago public schools ... to draft new remote learning plans in the few weeks remaining the current school year"; and (2) orders the Board "to provide notice to such case managers, clinicians, and others including parents as soon as possible that they are relieved from these new and unnecessary obligations." R. 10 ¶ 28. For the reasons that follow, the motion is denied.

II. LEGAL STANDARD

As an equitable, interlocutory form of relief, the entry of a preliminary injunction "is an exercise of a very far-reaching power, never to be indulged in except in a case clearly demanding it." Girl Scouts of Manitou Council, Inc. v. Girl Scouts of United States of Am., Inc. , 549 F.3d 1079, 1085 (7th Cir. 2008) (citation and quotation marks omitted); see also ...