Wetherald v. Carmel Clay Sch. Corp., 1:19-cv-00003-DML-JPH

CourtUnited States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
Writing for the CourtDebra McVicker Lynch United States Magistrate Judge Southern District of Indiana
PartiesBRANDI WETHERALD, individually and as Parent and Next Friend of C.W., Plaintiff, v. CARMEL CLAY SCHOOL CORPORATION and CARMEL CLAY BOARD OF SCHOOL TRUSTEES, Defendants.
Docket NumberNo. 1:19-cv-00003-DML-JPH,1:19-cv-00003-DML-JPH
Decision Date01 June 2020

BRANDI WETHERALD, individually and as Parent and Next Friend of C.W., Plaintiff,

No. 1:19-cv-00003-DML-JPH


June 1, 2020

Order on Cross-Motions for Summary Judgment

This matter is before the court on cross-motions for summary judgment by plaintiff Brandi Wetherald, on behalf of herself and her child, C.W. ("Child"), and defendants Carmel Clay School Corporation and the Carmel Clay Board of School Trustees (collectively, the "School"). The dispute involves an independent hearing officer's decision rendered after a Section 7 administrative hearing that was conducted over five days. The administrative record consists of about 3,400 pages. The hearing officer's decision, entered December 7, 2018, determined that the School, in violation of the Individuals with Disabilities Education Act (29 U.S.C. § 1400 et seq.), had not provided Child with a Free Appropriate Public Education ("FAPE") since January 2018, for various reasons. Ms. Wetherald (sometimes referred to as "Mother") filed this action to recover her attorneys' fees incurred in connection with the Section 7 hearing and, if she prevails on the merits, fees

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incurred in this litigation. The School filed a counterclaim seeking judicial review and reversal of the hearing officer's decision.

For the reasons addressed below, the court determines that the School has not met its burden to show that the hearing officer's decision is not supported by substantial evidence or is otherwise contrary to law.

Standard of Review

Although the issues before the court are presented via summary judgment motions, the court acts in an appellate-type role, and "summary judgment is simply the procedural vehicle for asking the judge to decide the case on the basis of the administrative record." Heather S. by Kathy S. v. Wisconsin, 125 F.3d 1045, 1052 (7th Cir. 1997). Pure matters of law are reviewed de novo, and the court must afford "due weight" to the hearing officer's factual findings. M.B. v. Hamilton Southeastern Sch., 668 F.3d 851, 860 (7th Cir. 2011). The court's standard of review "is equivalent to a 'clear-error' or 'substantial-evidence' standard . . . [and] the party challenging the outcome of the administrative proceedings bears the burden of proof." Id. In addition, the court should accept the hearing officer's credibility determinations, i.e., the officer's decision to accept some testimony as more worthy of belief than contrary testimony. E.g., Shore Reg'l High Sch. Bd. of Educ. v. P.S., 381 F.3d 194, 199 (3rd Cir. 2004).

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I. Individuals with Disabilities Education Act

The Individuals with Disabilities Education Act ("IDEA") requires public schools to "assess, and ensure the effectiveness of, efforts to educate children with disabilities." 20 U.S.C. § 1400(d)(4). A state is eligible to receive federal funding to educate children with disabilities if the state meets certain criteria, including providing disabled children with a free appropriate public education (FAPE), in the least restrictive environment, "that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living." Morton Comm. Unit Sch. Dist. No. 709 v. J.M., 152 F.3d 583, 584 (7th Cir. 1998) (citing 20 U.S.C. § 1400(d)(1)(A)). A free appropriate public education "includes both 'special education' and 'related services.'" Special education is "specially designed instruction . . . to meet the unique needs of a child with a disability"; related services are "support services required to assist a child . . . to benefit from that instruction." Endrew F. ex rel. Joseph F. v. Douglas City School Dist., 137 S. Ct. 988, 993 (2017). The "blueprint" for a school's delivery of the required special education and related services is the student's "individualized education program," or IEP. Id. at 994. The IEP must be "reasonably calculated to enable the child to make progress appropriate in light of his circumstances." Id. at 1002.

Under the IDEA, parents are assured an "active and meaningful role in the development or modification of their child's IEP," Hjortness v. Neenah Joint Sch.

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Dist., 507 F.3d 1060, 1064 (7th Cir. 2007), though they do not have a right to "to compel a school district to provide a specific program or employ a specific methodology in providing for the education" of their child. Lachman v. Illinois State Bd. of Education, 852 F.2d 290, 297 (7th Cir. 1988). In addition, a school is "not required to do more than to provide a program reasonably calculated to be of educational benefit to the child; [the school is] not required to educate the child to his or her highest potential." Evanston Cmty. Consul. Sch. Dist. No. 65 v. Michael M., 356 F.3d 798, 802 (7th Cir. 2004).

II. Resolution of Evidentiary Objections

Mother has submitted two affidavits to counter what she perceives are mischaracterizations of the administrative record by the School. One is her own affidavit and the other is an affidavit of Dr. Robin Kohli. The School objects to the court's allowance of that evidence. Both affidavits are submitted primarily to address "residential placement" issues, a matter at the heart of some issues the hearing officer considered and ruled on. Mother testified at the administrative hearing and, according to Dr. Kohli's affidavit, Mother's counsel had intended for Dr. Kohli also to testify at the hearing but decided not to call Dr. Kohli. The submission of additional evidence on judicial review of a hearing officer's decision should be limited to "gaps in the administrative transcript, owing to mechanical failure, unavailability of a witness, an improper exclusion of evidence by the administrative agency, and evidence concerning relevant events occurring subsequent to the administrative hearing." Town of Burlington v. Dep't of

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Education, 736 F.3d 773, 790 (1st Cir. 1984), relied on with approval in Z.F. v. South Harrison Comm. Sch. Corp., 2005 WL 2373729 at *19 (S.D. Ind. Sept. 1, 2005) (Hamilton, J.). None of these events is present here, and the court determines that allowing the affidavits would improperly change the character of this court's role from "one of review to a trial de novo." See Monticello School Dist. v. George L., 102 F.3d 895, 901 (7th Cir. 1996). The court therefore disregards the additional affidavits submitted by Mother.

III. Factual and Procedural Background1

C.W. is a young man who qualifies for special education and related services. He has diagnoses of autism spectrum disorder, anxiety disorder, mood dysregulation disorder, ADHD, and Celiac disease. He also has a rare chromosomal disorder and a mitochondria disorder, has been diagnosed with Lyme disease, and he has suffered numerous concussions. Child sees several medical providers; the majority of those he sees on a regular basis or for "flare-up" situations are within his local community, and he has a comfort level with them. He exhibits conditions consistent with his autism diagnosis, including impaired social abilities and communication skills, increased anxiety, behavioral outbursts, and difficulties with perseverance and transitioning between activities. His other diagnoses also affect his educational performance abilities because of the effects on academic learning, social skills, and behavior control. Despite his difficulties, Child has had a job at

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"No Label at the Table" and has done well with his social interactions working at a Farmer's Market and at a pop-up-shop in a mall. He can be social, polite, compassionate, and exhibit a sense of humor. He has been a peer mentor to students with cognitive disabilities and expressed a desire to work with students with disabilities as a career. Child's Mother is very supportive of him and patient with him. She has been actively involved in his education and in trying to prepare him for independent living.

During Child's eighth-grade year, beginning August 2015, his IEP placed him in a general education classroom at Carmel Clay Middle School with "push-in" special education supports, i.e., special support provided to him by an aide within the general education classroom.2 At the start of ninth grade, in August 2016, Mother withdrew Child from the School and enrolled him in Hope Academy, a public charter school that offers behavioral and cognitive therapies. Soon after, however, Mother withdrew Child from the charter school and re-enrolled him with the School. The Child was placed in a self-contained classroom at Carmel High School for students with emotional disabilities. Child was sometimes physically aggressive or engaged in property destruction during this period. In October 2016, Mother filed an Article 7 due process administrative hearing request (action a

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parent may take when she disagrees with an IEP), and she and the School negotiated a resolution of that request. A new IEP placed Child in an intense behavior support day treatment program, which included one-on-one assistance from the School's autism consultant, Jared Piper, a board-certified behavior analyst. Child remained in that setting and program from November 2016 to March 2017. In addition, the School paid for an independent "Comprehensive Psychoeducational Assessment" conducted by Dr. Robin Kohli, who was selected by Mother.

Dr. Kohli's report, dated November 1, 2016, (a) assessed Child's "behavior, emotional concerns, and educational functioning" and (b) made "appropriate recommendations for his emotional and academic needs." Dr. Kohli's report noted that Mother had reported that her Child "frequently destroys their house in his rages and has broken two TV's in the past year, broken windows, put holes in the wall, flipped the furniture, and in recent months has gotten physical" with Mother. Dr. Kohli also noted Mother's...

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