T.H. v. Board of Educ. of Palatine, 98 C 4633.

• Decision Date: 14 May 1999
• Docket Number: No. 98 C 4632.,No. 98 C 4633.,98 C 4633.,98 C 4632.
• Citation: 55 F.Supp.2d 830
• Parties: T.H., a minor, and L.H. and S.H., individually and as parents and next friends of T.H., Plaintiff, v. BOARD OF EDUCATION OF PALATINE COMMUNITY CONSOLIDATED SCHOOL DISTRICT 15, in their official capacity; Dr. John Conyers, in his official capacity as Superintendent; Dr. Darrell Mittelhauser, in his official capacity as Director of Special Education; Joseph Spagnola, in his official capacity as Illinois State Superintendent of Education, Defendants.
• Court: U.S. District Court — Northern District of Illinois

55 F.Supp.2d 830

T.H., a minor, and L.H. and S.H., individually and as parents and next friends of T.H., Plaintiff, v. BOARD OF EDUCATION OF PALATINE COMMUNITY CONSOLIDATED SCHOOL DISTRICT 15, in their official capacity; Dr. John Conyers, in his official capacity as Superintendent; Dr. Darrell Mittelhauser, in his official capacity as Director of Special Education; Joseph Spagnola, in his official capacity as Illinois State Superintendent of Education, Defendants.

No. 98 C 4633.

No. 98 C 4632.

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

May 14, 1999.

COPYRIGHT MATERIAL OMITTED

Mary E. Moran, Family Law Center of North Shore, Glencoe, IL, Seth Peter Robert, Gary Steven Mayerson, Graubard Mollen & Miller, New York City, for plaintiffs.

John Alexis Relias, Thomas Koutsouvas, Franczek, Sullivan, Mann, Crement, Hein, Relias, P.C., Chicago, IL for defendants.

MEMORANDUM AND ORDER

MORAN, Senior District Judge.

T.H. has just celebrated his fifth birthday. Over the past two and half years, he has cleared some important cognitive, linguistic, and behavioral milestones despite the autism which makes it difficult for him to focus his attention on the task at hand. There can be no doubt that the informed and dedicated involvement of T.'s parents has been instrumental in securing for T. a productive educational environment. But "proof that loving parents can craft a better program than a state offers does not, alone, entitle them to prevail under the [Individuals with Disabilities Education] Act." Kerkam v. McKenzie, 862 F.2d 884, 886 (D.C.Cir.1988); Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400, et seq.

This action was initiated when T.'s parents (plaintiffs) sought to enforce the decision of the Level II review officer ordering defendant Palatine Community Consolidated School District 15 (district) to pay for T.'s home-based special education program. We granted the parents' request for interim relief on December 2, 1998, and ordered the school district to cover the costs of T.'s "then-current educational placement" until all administrative and judicial review proceedings are completed. The central question presented here is whether the school district and/or the Illinois State Board of Education (ISBE) failed to comply with the requirements of the IDEA and are therefore permanently responsible for the costs of the program unilaterally implemented by T.'s parents.

We have before us a number of pending motions. Plaintiffs and the district have filed cross motions for summary judgment on the merits of the final administrative determination. The district has also moved for summary judgment on its cross claim against the ISBE seeking reimbursement from the State in the event that the district is found liable for T's homebased placement. There are also two motions to clarify our order of December 2, 1998: the district asks us to reconsider the start date of the interim relief and both parties ask us to review a list of disputed expenses. Finally, plaintiffs' petition for attorneys fees is still pending in case number 98 C 4633. We begin with our review of the final administrative decision.¹

I. An appropriate placement for T.

Three Supreme Court cases establish our task on review. In Board of Educ. of Hendrick Hudson Central School Dist. v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982), the Court set out a two-part test to determine whether a child has been given the free appropriate public education (FAPE)² he or she is entitled to under the IDEA. A reviewing court must first determine whether the state has complied with the procedural safeguards set out in the Act. Id. at 206, 102 S.Ct. 3034. Second, it must determine whether the IEP³ proposed by the local educational agency is appropriate, i.e. "reasonably calculated to enable the child to receive educational benefits." Id. at 207, 102 S.Ct. 3034. In School Committee of Town of Burlington, Mass. v. Dept. of Educ. of Mass., 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985), the Court confirmed that the parents' unilateral placement of a child in an alternative program will not bar reimbursement for the costs associated with the placement, so long as one of the Rowley prongs was violated and the parents' placement is found to be appropriate. Finally, the Court held in Florence County School Dist. Four v. Carter, 510 U.S. 7, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993), that the placement chosen by the parents need not be certified or approved by the State to qualify for reimbursement.

In T.'s case, the Level II review officer reversed the Level I hearing officer's finding that the school district had violated T.'s procedural rights (Level I at 26; Level II at 23), and the parents have not appealed that portion of his decision. Thus, we must decide whether the district's IEP would have provided T. with an appropriate education and, if not, whether the parents' home-based program was appropriate and thus eligible for reimbursement.

a. Standard of Review

The standards for our review differ from those governing a typical motion for summary judgment. Section 1415(e)(2) of the IDEA dictates 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."⁴ Thus, when neither party has requested that the district court hear additional evidence, as is the case here, "[t]he motion for summary judgment is simply the procedural vehicle for asking the judge to decide the case on the basis of the administrative record." Heather S. v. State of Wis., 125 F.3d 1045, 1052 (7th Cir.1997). Our decision must be based on the preponderance of the evidence and the school district, as the party challenging the outcome of the state administrative decision, bears the burden of proof. Id., citing Board of Educ. of Comm. Consol. School Dist. No. 21 v. Illinois State Bd. of Educ., 938 F.2d 712, 716 (7th Cir.1991), cert. denied, 502 U.S. 1066, 112 S.Ct. 957, 117 L.Ed.2d 124 (1992).

In reviewing the administrative record, the district court is required to give "due weight" to the results of the administrative proceedings and is warned "not `to substitute [its] own notions of sound educational policy for those of the school authorities,' whose decision it is reviewing." Heather S., 125 F.3d at 1052-53 (quoting Rowley, 458 U.S. at 206, 102 S.Ct. 3034) (other citations omitted). "[T]he `due weight' which the court must give to the hearings below is not to the testimony of witnesses or to the evidence—both of which the court must independently evaluate —but to the decisions of the hearing officers." Heather S., 125 F.3d at 1053. Where a state has set up a two-tiered review process, federal courts are required to defer to the final decision of the state authorities, in this case, the decision of the Level II review officer (the review officer). Id. at 1053-1054.

The school district argues that we should not defer to the review officer because he made a variety of legal and factual errors. In particular, the district contends that the review officer erroneously placed the burden of proof on the district, that he utilized an incorrect definition of "educational benefit," and that he relied on experts who came into the dispute after the IEP was developed while ignoring empirical studies which supported the district's position.

With respect to the burden of proof, we can find no controlling authority for the district's assertion that the parents bore the burden of proof at the Level II hearing. The Seventh Circuit has not addressed the question and other circuits appear to be split.⁵ Because of our conclusion below and the standards governing our review, we find it unnecessary to weigh in on this dispute.⁶ As for the district's other objections, we will examine the review officer's formulation of "educational benefit" and will independently evaluate the testimony of the expert witnesses. Ultimately, though, we are mindful of the hearing officer's special expertise in education law and will give the strongest deference to his findings of fact and final conclusions. See Doyle v. Arlington County School Bd., 953 F.2d 100, 105 (4th Cir.1991) (holding that if district court is not going to follow hearing officer's findings of fact, it is required to explain why not).

b. The district's proposed IEP and settlement offer

Following two arena assessments of T.'s skills, the school district convened a multi-disciplinary conference (MDC) on April 21, 1997, to review the assessment data and develop T.'s IEP.⁷ IDEA regulations provide that the IEP may not be completed before the MDC. See 34 CFR Part 300, App.C, Q55. The participants accepted Dr Pasternak's diagnosis and recorded T.'s disabling condition as autism. (dist.'s 12m at A23). They also agreed that T. needed and qualified for special education and related services in the areas of cognitive skills, receptive and expressive language, fine motor skills, oral motor skills, social interaction, cooperation, compliance and self-help. Id. at 23. Although there was little actual discussion (AR1246), mutually-acceptable goals were developed for T. in most of these areas. Behavioral goals, according to the written report, were to be developed later. (dist.'s 12m at A23).

The parents and the district could not agree on the most appropriate program to help T. achieve the goals identified in the IEP. The school district proposed its "early childhood program" which consisted of attendance in a cross-categorical classroom for 2.5 hours per day, four days a week, during the school year. (Id. at 25). His classroom time was to include 90 minutes per week of speech and language therapy, 60 minutes per week of social work, and 60 minutes per week of occupational therapy. (Id. at 24). T.'s parents, however,...