R.F. v. Bd. of Educ. of the City of Chicago
| Decision Date | 02 June 2022 |
| Docket Number | 22-cv-2608 |
| Parties | R.F., a minor, by and through Caren Holderman, Educational Rights Holder, et al., Plaintiffs, v. Board of Education of the City of Chicago, a/k/a Chicago Public Schools District 299, et al., Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
R.F., a minor, by and through Caren Holderman, Educational Rights Holder, et al., Plaintiffs,
v.
Board of Education of the City of Chicago, a/k/a Chicago Public Schools District 299, et al., Defendants.
No. 22-cv-2608
United States District Court, N.D. Illinois, Eastern Division
June 2, 2022
MEMORANDUM OPINION AND ORDER
Joan B. Gottschall, United States District Judge.
Plaintiffs have sued the Board of Education of the City of Chicago and the superintendent of Chicago Public Schools (collectively, “CPS” or “the district”) in their capacities as the next friend and educational rights holder for R.F., a ten-year-old girl who the parties agree is “a medically complex, quadriplegic student with diagnoses that include Spastic Quadriplegic Cerebral Palsy, Ulcerative Colitis, and Profound Intellectual Disability.” Compl. ¶¶ 2-3, ECF No. 1. At issue is R.F.'s transportation by CPS-provided bus from her home, an assistive living facility located on the north side of Chicago, to and from her day school located on Chicago's near west side. R.F.'s April 2020 Individualized Education Program (“IEP”) requires CPS to provide her transportation to and from the school and her home address on an air-conditioned bus with a wheelchair lift, shared nurse, and an aide. IEP 31, ECF No. 10-2. In March 2022, CPS assigned R.F. a bus route, but CPS nursing staff raised concerns-concerns with which plaintiffs agree-about R.F.'s health and safety because R.F. would be required to travel two hours each way. See Pls.' Ex. E at 9-10, 11, ECF No. 10-6 (emails dated Mar. 28 and Apr. 1, 2022). CPS
has proposed providing home-based educational services for R.F. Aff. of A. Cowling ¶ 28, ECF No. 12-1.
Plaintiffs brought this suit under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1401-82; 42 U.S.C. § 1983; the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.; and the Rehabilitation Act, 29 U.S.C. § 701 et seq., and now seek a temporary restraining order to enforce the IEP's terms and compel CPS to provide R.F. transportation with an estimated travel time of no more than 60 minutes each way. Proposed TRO 2. The district opposes the motion on several grounds, principally that plaintiffs must first exhaust their state administrative remedies in accordance with the IDEA. See 20 U.S.C. § 1415(1). They also have submitted evidence that a shortage of bus drivers and nurses exists, due in part to the COVID-19 pandemic.
I. Background
Neither side requested a hearing.[1] The limited factual record therefore consists of exhibits submitted at the TRO stage. Unless stated otherwise, the following facts are undisputed.
A. The IDEA and Individualized Education Programs
The IDEA makes federal funds available to the states under certain conditions, including the condition that states commit to provide all eligible children a free appropriate public education, or FAPE for short. Joseph F. ex rel. Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S.Ct. 988, 993 (2017) (citing 20 U.S.C. § 1412(a)(1); other citations omitted). A FAPE encompasses (1) “special education” and (2) “related services.” 20 U.S.C. § 1401(9). “ ‘Special education' is ‘specially designed instruction . . . to meet the unique needs of a child with a
disability' ....” Endrew F., 137 S.Ct. at 994 (quoting § 1401(29)). As defined in the IDEA, related services include:
transportation, and such developmental, corrective, and other supportive services . . . [including] school nurse services designed to enable a child with a disability to receive a free appropriate public education as described in the individualized education program of the child, . . . as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children
§ 1401(26)(A).
The Supreme Court provided the following overview of the IEP process in Endrew F.:
The IEP is “the centerpiece of the statute's education delivery system for disabled children.” Honig v. Doe, 484 U.S. 305, 311 (1988). A comprehensive plan prepared by a child's “IEP Team” (which includes teachers, school officials, and the child's parents), an IEP must be drafted in compliance with a detailed set of procedures. § 1414(d)(1)(B) (internal quotation marks omitted). These procedures emphasize collaboration among parents and educators and require careful consideration of the child's individual circumstances. § 1414. The IEP is the means by which special education and related services are “tailored to the unique needs” of a particular child
The IDEA requires that every IEP include “a statement of the child's present levels of academic achievement and functional performance, ” describe “how the child's disability affects the child's involvement and progress in the general education curriculum, ” and set out “measurable annual goals, including academic and functional goals, ” along with a “description of how the child's progress toward meeting” those goals will be gauged. §§ 1414(d)(1)(A)(i)(I)-(III). The IEP must also describe the “special education and related services . . . that will be provided” so that the child may “advance appropriately toward attaining the annual goals” and, when possible, “be involved in and make progress in the general education curriculum.” § 1414(d)(1)(A)(i)(IV).
Parents and educators often agree about what a child's IEP should contain. But not always. When disagreement arises, parents may turn to dispute resolution procedures established by the IDEA. The parties may resolve their differences informally, through a “[p]reliminary meeting, ” or, somewhat more formally, through mediation. §§ 1415(e), (f)(1)(B)(i). If these measures fail to produce accord, the parties may proceed to what the Act calls a “due process hearing” before a state or local educational agency. §§ 1415(f)(1)(A), (g). And at the conclusion of the administrative process, the losing party may seek redress in state or federal court. § 1415(i)(2)(A).
Endrew F., 137 S.Ct. at 994 (some internal citations omitted).
CPS invokes the IDEA's exhaustion provision in § 1415(1). Resp. 7, ECF No. 12. This provision reads:
Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this subchapter.
20 U.S.C. § 1415(1).
B. R.F.'s Background
R.F. is a ten-year-old girl in the custody and guardianship[2] of the Illinois Department of Children and Family Services (“DCFS”). Huff Aff. ¶ 3. R.F. has been in DCFS custody at least since she enrolled in CPS in 2018. See Cowling Aff. ¶ 7; Compl. ¶ 41. Since she first enrolled, R.F. has been placed at the Wilma Rudolph Learning Center (“Wilma Rudolph”), located at 1628 W. Washington Boulevard in Chicago. See Cowling Aff. ¶¶ 2, 5; Compl. ¶ 38. Wilma Rudolph “is dedicated to the education of students with special needs.” Cowling Aff. ¶ 3; see also IEP 3. Wilma Rudolph is accessible to wheelchair users and has specialized facilities, such as a sensory room and “wiggle room.” See Compl. ¶ 46; IEP 3.
R.F. had a foster parent until at least April 2020. See Cowling Aff. ¶ 7; IEP 1; Compl. ¶ 41 (all stating that foster parent participated in IEP meetings). By December 2021, R.F. had moved her primary residence to Alden Village, an assisted living facility located at 7464 N. Sheridan Road in Chicago. Huff Aff. ¶¶ 7-8, 10. Alden Village serves as R.F.'s home address
for purposes of her transportation to and from school. See id. ¶ 7. R.F. does not presently have a foster parent because she resides at an assisted living facility. Id. ¶ 9. The reasons for R.F.'s transition to Alden Village do not appear in the record.
In an affidavit filed in support of the pending motion, R.F.'s DCFS case manager, Hanna Huff, avers, R.F. “is medically complex, quadriplegic, and uses a wheelchair.” Huff. Aff. ¶ 5; accord Compl. ¶ 39. R.F.'s IEP dated April 17, 2020, includes a partial history and a description of the services and accommodations she received at that time. The court has no information on what, if anything, has changed. Neither side argues that R.F.'s disabilities and medical needs have changed insofar as they relate to her transportation to and from Wilma Rudolph.
As described in the April 2020 IEP, R.F. has “Multiple Disabilities, Other Health Impairments, Developmental Delays, Orthopedic Impairment, Speech or Language Impairment.” IEP 1. Her medical history includes “Cerebral Palsy, Developmental Delay, Failure to thrive, Microcephalus, Obstructive Sleep Apnea, Bilateral hip contractures, Seizure disorder and Strabismic Amblyopia.” Id. at 4. R.F. does not talk, and she uses diapers. Id. at 3. Her estimated developmental age is 2.8 months. Id. at 2. She is at risk of seizures, although she did not experience a seizure in school during the 2019-20 school year. See id. at 4. R.F. requires total adult assistance for mobility, including moving her wheelchair and changing position. Id. at 3.
The 2020 IEP states that R.F. showed progress in using a supine stander, which allowed her to interact with peers, for 45-60 minutes at a time. See IEP 3. She also made slow but steady progress using switches “to activate cause/effect items.” Id. at 3. R.F. communicates her needs through crying and other vocalizations. Id. at 2. R.F. is “interested in physical contact and
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