Miksis ex rel. Miksis v. Evanston Twp. High Sch. Dist. # 202, 12 C 8497

• Decision Date: 27 January 2017
• Docket Number: No. 12 C 8497,12 C 8497
• Citation: 235 F.Supp.3d 960
• Parties: Michael and Christine MIKSIS, on Behalf of John Miksis, Plaintiffs, v. EVANSTON TOWNSHIP HIGH SCHOOL DISTRICT # 202, Defendant.
• Court: U.S. District Court — Northern District of Illinois

235 F.Supp.3d 960

Michael and Christine MIKSIS, on Behalf of John Miksis, Plaintiffs,

v.EVANSTON TOWNSHIP HIGH SCHOOL DISTRICT # 202, Defendant.

No. 12 C 8497

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

Signed January 27, 2017

As Amended February 2, 2017

Steven Earl Glink, Northbrook, IL, for Plaintiffs.

John Alexis Relias, Jacqueline Farideh Wernz, Patricia J. Whitten, Franczek Radelet P.C., Chicago, IL, Ashley Choren Workman, Seyfarth Shaw LLP, Chicago, IL, Teri Ellen Engler, Sraga Hauser LLC, Oak Brook, IL, for Defendant.

AMENDED MEMORANDUM OPINION AND ORDER

Thomas M. Durkin, United States District Judge

By minute order dated September 30, 2016 (R. 81), the Court denied the parties' pending cross-motions for summary judgment (R. 49, 51), stating that a written opinion would follow. The Court now sets forth the reasons for its September 30, 2016 order.

TABLE OF CONTENTS

BACKGROUND

A. Introduction

B. The First Lawsuit

C. Meetings To Establish John's Educational Program For Post–Senior Year And Subsequent Settlement Of The First Lawsuit

D. Post–Settlement Disputes

1. Orchard Academy Aides And Supports For John's Classes At Oakton Community College

2. Defendant's Termination Of Orchard Placement And Disenrollment From School For Nonattendance

3. PACE's Denial Of John's Application And His Enrollment In ELSA

E. The Present Lawsuit

DISCUSSION

I. Subject Matter Jurisdiction

A. Jurisdiction Based On Breach Of An Agreement To Settle A Federal Claim

B. Federal Question Jurisdiction Based On The IDEA

C. Federal Question Jurisdiction Based On An Embedded Issue Of Federal Law

D. Supplemental Jurisdiction

II. Summary Judgment

A. Standard of Review

B. State Law Breach Of Contract Claims

1. Whether Administrative Exhaustion Applies

2. Whether Defendant Breached The Settlement Agreement

a. Orchard Aides And Supports For Community College Classes

b. PACE/ELSA Program

(i) Anticipatory Breach theory

(ii) Material Breach Doctrine

(iii) Supplying The Missing Contractual Term On Which The Parties Failed To Agree

C. Federal IDEA Claims

1. Whether Plaintiffs Were Required To Exhaust Their Administrative Remediesa. Waiver

b. Futility Or Inadequacy Of Exhaustion

2. Whether Defendant Denied John A FAPE

D. Equitable Issues: Failure To Cooperate, Estoppel, and Unclean Hands

CONCLUSION

BACKGROUND¹

A. INTRODUCTION

This case concerns the high school education of John Miksis. John is currently twenty-six years old, but, when the events at issue began, he was a twelve-year old child with Down Syndrome

who was about to enter the ninth grade. Defendant Evanston Township High School District # 202 is a public educational agency that receives federal funding. As such, Defendant is subject to federal education laws and regulations, including the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. , as amended by the Individuals with Disabilities Education Improvement Act ("IDEIA"), P.L. 108–446, 118 Stat. 2647(Dec. 3, 2004) (hereinafter ("the IDEA" or "the Act")).²

The IDEA is a federal statutory scheme governing the education of disabled students like John, which seeks "to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living." 20 U.S.C. § 1400(d)(1)(A). The term "free appropriate public education," or "FAPE," is defined in the Act as "special education and related services that—(A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of [the Act]."20 U.S.C. § 1401(9).

B. THE FIRST LAWSUIT

In the spring of 2004, John's parents, Michael and Christine Miksis, were in discussions with Defendant about the individualized education program, or "IEP,"³ for John's up-coming freshman year at Evanston Township High School ("ETHS"). The parties were unable to agree about what John's IEP should include. Therefore, John's parents filed an administrative complaint and requested an impartial due process hearing to resolve the issue.⁴ The hearing was held over the course of several days in the fall of 2004. At the conclusion of the hearing, the hearing officer issued a written decision finding against John and his parents. Dissatisfied with that result, John's parents exercised their right to appeal the hearing officer's decision to a federal court in this district.⁵ John's parents' lawsuit was assigned to Judge Holderman (05–cv–6720), who, shortly after the case was filed, issued an order granting Plaintiffs a preliminary injunction to require Defendant to provide on a temporary basis while the case was being litigated the educational supports and services that John's parents believed were necessary to comply with the IDEA. See John M. ex rel. Christine M. v. Bd. of Educ. of Evanston Twp. High Sch. Dist. 202 , 450 F.Supp.2d 880 (N.D. Ill. Aug. 18, 2006).⁶ Defendant, however, filed an interlocutory appeal from Judge Holderman's preliminary injunction order, and ultimately was successful in getting that order reversed for further consideration. See John M. v. Bd. of Educ. of Evanston Twp. High Sch. Dist. 202 , 502 F.3d 708 (7th Cir. 2007). The Seventh Circuit issued a ruling in favor of Defendant on September 17, 2007, and a mandate remanding the case to Judge Holderman for further proceedings on October 9, 2007.

By the time the Seventh Circuit remanded the lawsuit to the district court, John was in his third year of high school. Thereafter, another year passed while the parties attempted to settle the case. In the fall of John's senior year, Defendant filed a motion to dismiss the federal lawsuit, arguing that, because John was about to finish his senior year, the lawsuit was moot. John's parents contested that motion, arguing that the case was not moot because John's rights under the IDEA did not terminate with the end of his senior year of high school. Instead, John was entitled to special educational services from Defendant until he graduated, or through the day before he turned twenty-two, whichever came first. See 20 U.S.C. § 1412(a)(1)(A) ; 34 C.F.R. § 300.101(a). As all parties to the lawsuit conceded, John would not actually be graduating at the end of his senior year of high school. John's parents argued that, because Defendant would still be required to provide John with educational services beyond his senior year of high school,⁷ the substantive issues in the lawsuit regarding the special educational services and aides to which John was entitled were not moot. See John M. , 05–cv–6720, Dkt. # 98 at 9.

In a ruling issued on March 16, 2009, Judge Holderman rejected Plaintiffs' arguments that the underlying merits issues about the educational services to which John was entitled presented a live controversy. According to Judge Holderman, the question of what educational services John was entitled to during his first four years of high school was different than the same question asked about John's IDEA–eligible years after his senior year of high school. The federal lawsuit filed by John's parents, Judge Holderman concluded, dealt only with the former question, which all parties agreed no longer needed to be decided:

Plaintiffs do not articulate how or why John's transition program⁸ should be considered analogous to John's academic program. It appears to the court that these programs are distinct, as there is no indication that either party intends the transition program to include enrollment within the general curriculum. The fact that Evanston School District will be providing these services is not enough by itself to demonstrate that John's past IEPs remain relevant at this point in John's education.

John M. v. Bd. of Educ. of Evanston Twp. High Sch. Dist. 202 , 2009 WL 691276, at *4 (N.D. Ill. Mar. 16, 2009) (footnote omitted). Nevertheless, Judge Holderman agreed with Plaintiffs' additional arguments that the first lawsuit was not entirely moot, because, in addition to seeking a change in Defendant's proposed IEP for John, Plaintiffs also were seeking compensatory education⁹ for Defendant's past violations of the "stay-put" IEP¹⁰ and their attorneys' fees.¹¹ Plaintiffs' claims to recover both of these items of damages, Judge Holderman held, were still viable. Id. at *5–6.

C. MEETINGS TO ESTABLISH JOHN'S EDUCATIONAL PROGRAM FOR POST–SENIOR YEAR AND SUBSEQUENT SETTLEMENT OF THE FIRST LAWSUIT

Around the time the parties were addressing the mootness issue in the first lawsuit, they also were meeting outside the litigation to discuss John's placement after the end of his senior year and during the final years of his IDEA eligibility. These discussions occurred during two meetings in the spring of 2009. The first meeting took place on March 27, and the second meeting took place on May 15. In both instances, the meeting was led by Bob Gottlieb, who at the time was Defendant's Director of Special Education. Believing they had reached an agreement regarding John's educational placement during these meetings, the parties subsequently entered into a settlement of the first lawsuit. The Settlement Agreement provided that Plaintiffs would release Defendant from their claims in the lawsuit, and, in return, Defendant agreed to provide certain special educational services during John's first post-senior year of IDEA–eligibility (2009–2010 academic year) as follows:

1. As discussed during John's Individual Education Plan ("IEP") meeting held by the parties on May 15, 2009, the parties agree that John will attend Orchard Academy ... in its intensive individualized transition program beginning August 25, 2009 at the District's expense. The parties

...