Lisa Individually A. v. Bd. of Educ. of the Vandalia Cmty. Unit Sch. Dist. No. 203

• Decision Date: 21 August 2018
• Docket Number: Case No. 16-CV-22-NJR-DGW
• Parties: K.S. and LISA A., Individually and as Parent and Next Friend of K.S., Plaintiffs, v. BOARD OF EDUCATION OF THE VANDALIA COMMUNITY UNIT SCHOOL DISTRICT NO. 203, Defendant.
• Court: U.S. District Court — Southern District of Illinois

K.S. and LISA A., Individually and asParent and Next Friend of K.S., Plaintiffs, v. BOARD OF EDUCATION OF THE VANDALIA COMMUNITY UNIT

SCHOOL DISTRICT NO. 203, Defendant.

Case No. 16-CV-22-NJR-DGW

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

August 21, 2018

MEMORANDUM AND ORDER

ROSENSTENGEL, District Judge:

This case is before the Court on cross motions for summary judgment filed by Plaintiffs K.S. and Lisa A., Individually and as Parent and Next Friend of K.S. (collectively "Plaintiffs") and Defendant Board of Education of the Vandalia Community Unit School District No. 203 (the "District") (Docs. 29 and 31). Plaintiffs brought this action pursuant to the Individuals with Disabilities Education Act ("IDEA"), to recover attorney's fees under 20 U.S.C. § 1415(i)(3)(B) they incurred prevailing in a due process hearing against the District. For the reasons set forth below, the Court grants in part and denies in part both motions for summary judgment.

BACKGROUND

K.S. is a young man with multiple disabilities, including a learning disability, anxiety, and depression, which impact his ability to participate in his community (Doc. 30, p. 2; Doc. 30-2, p. 2). From second grade through senior year of high school, K.S. received special education and related services from the District under the IDEA (Doc. 1, p. 3, 6). Specifically, he received an Individualized Education Program ("IEP") to address his educational needs (Doc. 32, p. 1). In October 2014, the fall semester of K.S.'s senior year of high school at Vandalia Community High School ("VCHS"), K.S. came to school under the influence of drugs (Id.).

The District's IEP team held a Manifestation Determination Review Hearing to determine whether K.S.'s conduct was a manifestation of his disability (Doc. 32-9, p. 1). After determining that coming to school under the influence of drugs was not a manifestation of K.S.'s disability, the School Board of Vandalia CUSD No. 203 voted to expel K.S. from VCHS, but arranged for him to receive services at a private day school, Cornerstone Academy (Doc. 32, p. 2, Doc. 30, p. 2). This emergency placement was intended for 45 school days (Doc. 30, p. 2). Because she disagreed with K.S.'s removal from the District, K.S.'s mother, Lisa A., requested—and the District agreed—to engage in mediation on October 17, 2014 (Id.).

After mediation did not resolve the issues, Lisa A. requested a special education due process hearing on January 20, 2015 (Doc. 30, p. 2). Lisa A. raised five issues, alleging that the District denied K.S. a Free Appropriate Public Education ("FAPE") by failing to: (1) reevaluate K.S.; (2) develop an appropriate IEP, including failing to develop measurable annual goals and provide appropriate related services; (3) develop appropriate measurable transition goals and provide transition services; (4) conduct a Functional Behavior Analysis and develop a Behavior Intervention Plan; and (5) conduct an appropriate Manifestation Determination Review on October 10, 2014 (Doc. 30, p. 3).

That hearing was automatically docketed as an expedited hearing because it involved student discipline (Doc. 32, p. 2). On February 3, 2015, however, an order was entered converting the expedited hearing to a standard hearing because the exigent circumstances making an expedited hearing no longer existed, and Lisa A. had not requested an expedited hearing (Doc. 30-1, p. 3).

At that time, Lisa A. also filed an emergency motion challenging K.S.'s "stay put" placement,¹ seeking to place K.S. back in VCHS as his "stay put" placement during the pendency of the due process hearing (Doc. 30, p. 3; Doc. 32, p. 2; Doc. 32-9, p. 1). The issue was complicated because, at the time, K.S.'s 45-day interim placement had expired and there was a question of where K.S. should properly be placed during the ongoing litigation (Doc. 33-8). On February 12, 2015, the IHO ruled in favor of the District, denying the motion to establish the "stay put" placement of K.S. at VCHS (Doc. 32-9). Plaintiffs' attorneys then asked for clarification of the IHO's order on the "stay put" placement decision, and the IHO issued clarification that same day (Doc. 32-10).

The parties met for an IEP meeting for K.S. on February 23, 2015 (Doc. 32, p. 3). Two of Plaintiffs' attorneys traveled from Chicago to Vandalia to attend this IEP meeting (Id.). On March 2, 2015, the IHO conducted a prehearing conference via telephone, which was insufficient to cover everything, so another one was held a few days later (Id.).

The due process hearing was held on April 27, April 30, and May 1, 2015 (Doc. 30, p. 4; Doc. 32, p. 4). The IHO identified the issues for resolution as follows:

1. Did the School District conduct an appropriate re-evaluation of the student from January 20, 2013, until the present, and, if not, did this result in the denial of FAPE?

2. Did the Student's IEPs from January 20, 2013, until the present offer FAPE to the Student by appropriately addressing all of his educational and related services needs that result from his disabilities?

3. Did the Student's IEPs from January 20, 2013, meet the requirements of IDEA with respect to the statements of the Student's present levels of performance and measurable annual goals and, if not, did this result in the denial of FAPE?

4. Did the School District develop appropriate transition goals and provide appropriate transition services for the Student from January 20, 2013 to the present?

5. Did the School District conduct an appropriate functional behavioral analysis ("FBA") for the Student and/or develop an appropriate behavioral intervention plan ("BIP") for the Student from January 20, 2013, until the present and, if not, did this result in the denial of FAPE?

6. Did the School District conduct an appropriate manifestation determination review ("MDR") for the Student on October 10, 2014?

7. Is the Stay of Expulsion Agreement of October 15, 2014, valid and enforceable?

8. Did the Mother properly request an independent educational evaluation at public expense and/or an evaluation by the School District during the 2014-15 school year and, if so, did the School District meet its responsibilities in accordance with applicable law and regulations?

9. Is the Mother entitled to reimbursement of the cost of an independent psychological evaluation of the Student she obtained at her expense in April, 2015?

10. Would an Order directing the School District to allow the Student to participate in the VCHS commencement ceremony on May 16, 2015 be a proper exercise of the hearing officer's authority if Issue #6 is decided in favor of the Student and Mother?

(Doc. 1-1, p. 3-4).

On May 14, 2015, the IHO issued his Final Decision and Order finding the following:

1. The Student's expulsion of October 15, 2014, is rescinded due to an inappropriate Manifestation Determination Review on October 10, 2014.

2. Within 30 days of the date of this Order the School District shall reimburse the Mother for the cost of the independent psychological evaluation of Dr. Frederic Golden in the amount of $2,100.00.

3. The Student's eligibility under IDEA shall be extended through the 2015-2016 school year, and whether the Student's eligibility should continue beyond the 2015-2016 school year shall be determined by the IEP team at an annual review meeting in 2016.

4. Within 30 days of the date of this Order the School District shall schedule independent assessments of the Student's vocational, independent living and community skills at the School District's expense. The assessments shall determine the Student's present levels of performance in objective and measurable terms, and this baseline information shall be used in addition to other available information to develop measurable transition goals and benchmarks.

5. Within 30 days of the date of this Order the School District's school psychologist or a qualified independent evaluator at the School District's expense shall conduct a comprehensive evaluation of the Student's math and reading comprehension skills. The evaluation shall determine the Student's levels of mastery and achievement in math and reading comprehension for the purpose of determining present levels of performance in order to write measurable goals and benchmarks for the 2015-2016 school year and to recommend appropriate services for the Student in reading and math.

6. Within 30 days of the date of this Order, the School District shall complete a social developmental history of the Student by an individual qualified under 23 Ill. Adm. Code 226.840.

7. In administering the new assessments and evaluations, appropriate and individualized modifications and accommodations shall be made for the Student's attention deficit disorder in consultation with the Student, his Mother, his counselor, Dr. Golden, and teachers and school support personnel from Cornerstone, Mid-State and VCHS.

8. Starting on June 1, 2015 through the end of the 2015-2016 school year, the School District shall pay for two sixty-minute private individual counseling sessions per month for the Student to address his social emotional and adaptive behavior problems. The Mother and the Student shall have the option of continuing to have Mr. Monkenprovide these counseling services, or agreeing with the School District on a new behavioral healthcare professional to provide the services. The School District's financial responsibility for the individual counselling sessions shall terminate prior to the end of the 2015-2016 school year if the counselor determines that the Student's counseling objectives have been met and the counselor recommends that counseling is no longer appropriate for the Student, or if the counseling is discontinued by the counselor due to lack of cooperation by the Student.

9. The School District shall allow the Student to enroll in a summer automotive mechanics course, if available, at the School District's expense either at a local community college, the Okaw Vocational Center or

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