Evanston Comm. Con. School Dist. 65 v. Michael M.

• Decision Date: 02 February 2004
• Docket Number: No. 02-2867.,No. 02-3001.,02-2867.,02-3001.
• Parties: EVANSTON COMMUNITY CONSOLIDATED SCHOOL DISTRICT NUMBER 65, Plaintiff-Appellant, v. MICHAEL M. and Christine M., parents of John M., Defendants-Appellees. John M., by his parents and next friends, Michael M. and Christine M., Plaintiffs-Appellants, v. Evanston Community Consolidated School District Number 65 and Dr. Hardy Ray Murphy, its superintendent, sued in his official capacity, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 798

356 F.3d 798

EVANSTON COMMUNITY CONSOLIDATED SCHOOL DISTRICT NUMBER 65, Plaintiff-Appellant, v. MICHAEL M. and Christine M., parents of John M., Defendants-Appellees.

John M., by his parents and next friends, Michael M. and Christine M., Plaintiffs-Appellants, v. Evanston Community Consolidated School District Number 65 and Dr. Hardy Ray Murphy, its superintendent, sued in his official capacity, Defendants-Appellees.

No. 02-2867.

No. 02-3001.

United States Court of Appeals, Seventh Circuit.

Argued May 29, 2003.

Decided February 2, 2004.

COPYRIGHT MATERIAL OMITTED

Thomas G. Abram (argued), Vedder, Price, Kaufman & Kammholz, Chicago, IL, for Evanston Community Consolidated School District Number 65 and Dr. Hardy Ray Murphy.

Charles F. Stone (argued), Chicago, IL, for John M., Michael M. And Christine M.

Before CUDAHY, EVANS, and WILLIAMS, Circuit Judges.

PER CURIAM.

The parents of John M. have brought this case, claiming that the Evanston Community Consolidated School District violated John's rights under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq. Both sides have appealed portions of the district court decision.

The facts in this case are many and detailed, but we will attempt to avoid an endless and tedious recitation. In short, John has Downs Syndrome. During the 1999-2000 school year he was in third grade. He was in a regular classroom but received 400 minutes of special education services, including 150 minutes per week of speech and language resources, 30 minutes per week of direct occupational therapy (OT) services, and 60 minutes per month of physical therapy (PT) services. He also had a full-time teacher's aide.

In the spring of 2000, the District conducted its tri-annual evaluation of John to be used in the preparation of his individualized education program (IEP) for the 2000-2001 school year. The parents and the District disagreed about how to perform the evaluation. The parents refused to allow standardized assessment tools but eventually agreed on an evaluation procedure which did not use standardized testing. Based on evaluations by occupational therapist Cathy Duba and physical therapist Patricia Anderson, the District prepared John's IEP for 2000-2001. It proposed 30 minutes of OT consultation per week and 30-60 minutes of PT consultation per month. In addition, Special Services Director Dan Thompson added 30 minutes of direct PT services.

The parents were not happy with the proposed IEP and requested private OT and PT evaluations. The parents hired a therapist from Pathways, a private organization, to perform an evaluation in July 2000. Part of this evaluation involved the use of standardized tests in a "non-standardized way." The parents paid $800 for the Pathways evaluation.

Thompson believed that the District's evaluations were appropriate and rejected the request that the District pay for the private evaluation. Instead, Thompson requested a due process hearing. Consequently, a hearing was held before a due process hearing examiner, at which the School District prevailed on all issues except, in the examiner's words, two "technical violations." One of the violations involved the occupational therapist Duba. She had received her MA in OT in August 1999 and passed her licensing exam in March 2000, but she did not receive her license until May 2000. Under those circumstances she could legally work in the school district, but only with more supervision than she received. According to the hearing examiner, there was no indication that Duba did not do a good job, but, nevertheless, as compensation for the technical licensing problem, the examiner ordered 60 minutes per week of direct OT services be provided to John in addition to the amount already provided for in the IEP. The examiner also found that the social and emotional goals set out in the IEP "read like boilerplate." She ordered the District to do better. In all other respects the IEP was upheld.

The case then moved to the federal district court, where the judge considered the parties' cross-motions for summary judgment without additional evidence. He said the parents were entitled to damages in the form of one year of compensatory occupational therapy, $800 to cover the fee for the independent evaluation, the use of an "inclusion facilitator" if one is available at no cost to the District, and, because he found them to be prevailing parties, to attorney fees and costs. The parents' motion for compensatory education as to physical therapy, speech therapy, reading, and math was denied. The School District's motion was granted upholding the IEP. The parties cross-appealed in this court and the appeals were consolidated for our consideration.

In general, the School District appeals the award of reimbursement to the parents for independent evaluations of John's abilities, the order for direct OT services to John, and the determination that the parents were the prevailing parties and are thus entitled to attorney fees in this action. In their cross-appeal, the parents contend that the School District committed procedural violations in drafting his IEP and that the School District has demonstrated its inability to provide adequate services without outside assistance from an expert who is authorized to supervise the IEP process.

The IDEA (and predecessor statutes) created a federal grant program to assist state and local agencies in educating disabled children. To receive funds, states must provide the children with the opportunity for a "free appropriate public education," or — because the situation calls out for another acronym — a FAPE. Each student must be offered special education and related services under an IEP. In Board of Education v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982), the court set out a method for determining whether a school district has provided a FAPE: courts must ask whether the IEP is reasonably calculated to enable the child to receive an educational benefit and whether the district complied with the proper procedures for drafting the IEP.

In Heather S. v. State of Wisconsin, 125 F.3d 1045, 1052 (7th Cir.1997), we discussed guidelines for district courts considering IDEA cases and noted that the standard of review "differs from that governing the typical review of summary judgment." The IDEA says that the district court "shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." 20 U.S.C. § 1415(e)(2). So the court can take new evidence in addition to receiving and reviewing the administrative record. But when no new evidence is offered — as here — the cases are decided on summary judgment, which is the procedural vehicle for asking the judge to decide the case on the basis of the administrative record. Hunger v. Leininger, 15 F.3d 664 (7th Cir.1994). Even though it is grounded on an administrative record, the decision must be based on a preponderance of the evidence, and the person challenging the decision of the agency bears the burden of proof. The district court must give "due weight" to the results of the administrative proceedings and must not substitute its "notions of sound educational policy" for those of the school district. Heather S., 125 F.3d at 1053 (quoting Rowley). As Rowley pointed out, courts lack the specialized knowledge to resolve issues of educational policy. Once the school district has met the Rowley requirements, it has done enough. School districts are not required to do more than to provide a program reasonably calculated to be of educational benefit to the child; they are not required to educate the child to his or her highest potential. Bd. of Educ. of Murphysboro Cmty. Unit Sch. Dist. No. 186 v. Illinois State Bd. of Educ., 41 F.3d 1162 (7th Cir.1994).

When the case reaches us,

[w]e review the district court's judgment as a mixed question of law and fact. While we thus review the ultimate determination de novo, in the absence of any mistake of law, we may only reverse the district court if its findings were clearly erroneous.

Heather S., 125 F.3d at 1053.

A primary issue in this case involves occupational therapy. Ms. Duba, the therapist, was not licensed and so should have been better supervised. Because of what she called a "technical violation," the hearing examiner required the School District to provide compensatory services in the amount of 60 minutes per week of direct (not consultative) occupational therapy services.

The district court upheld that requirement, also seeming to agree that the licensing violation supported the compensatory services. But the district judge also said that the "evidence is undisputed that John needs direct occupational therapy services despite the due weight given to the Hearing Officer's decision" and "we agree with the Parents that the Hearing Officer erred by not affording any weight to the testimony of the independent therapists and as a result of such reached an erroneous decision." These findings would seem to support an order for direct OT services on the merits rather than as compensation for licensing violations.

The School District contends that neither basis for the OT services is valid. The technical violation does not support compensatory services, the School District says, because courts may order compensatory services under the IDEA only upon a finding that a school district failed to provide a FAPE. As to the merits of the issue, the School District contends that the hearing examiner's findings that the school had provided "an exemplary, inclusive education program" were supported by a preponderance of the evidence.

Compensatory services are well-established as a remedy under the IDEA. In Board of Education of Oak Park & River Forest High School District 200 v....