JACCARI v. BD. OF EDUC. OF CITY OF CHICAGO

690 F.Supp.2d 687

JACCARI J., a Minor, and Sandra J., Individually and as Guardian and Next of Friend of Jaccari J., Plaintiffs, v. BOARD OF EDUCATION OF the CITY OF CHICAGO, DISTRICT NO. 299, Defendant.

No. 08 C 6995.

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

February 23, 2010.

Michael A. O'Connor, Mauk & O'Connor, LLP, Chicago, IL, for Plaintiffs.

Sabrina Louise Haake, Law Department, Chicago Board of Education, Patrick J. Rocks, Jr., Susan Margaret O'Keefe, Chicago Board of Education, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

RUBEN CASTILLO, District Judge.

Jaccari J. ("Jaccari"), a minor, and his guardian, Sandra J. ("Sandra") (collectively, "Plaintiffs") bring this action against the Board of Education of the City of Chicago, District No. 299 (the "District"), alleging violations of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1401 et seq.¹ (R. 1, Compl.) Pursuant to 20 U.S.C. § 1415(i)(2)(A),

Plaintiffs have filed this suit to appeal an Impartial Due Process Hearing Officer's ("IHO") decision. (Id.) Presently before the Court are Plaintiffs' and the District's cross-motions for summary judgment. (R. 45, Pls.' Mot. for Summ. J., R. 48, Def.'s Cross-Mot. for Summ. J.) For the reasons set forth below, Plaintiffs' motion is denied and the District's motion is granted.

RELEVANT FACTS²

In March 2004, while in kindergarten, Jaccari was found eligible for special education services after being diagnosed with a learning disability and a speech/language impairment. (R. 54, District's Resp. Pls.' SOF ¶ 6.) Jaccari attended Wentworth Elementary School ("Wentworth") from kindergarten through first grade, where, pursuant to his Individual Education Program ("IEP") he received speech therapy and had a one-on-one aide.³ (Id. ¶ 7.) His IEP also provided for placement in a "self-contained classroom," which has only children with IEPs, for all academic subjects. (Id.) During his time at Wentworth, Jaccari presented a number of behavioral difficulties. (See R. 19, Admin. R. at 280-283.)

For the 2005-06 academic year, Jaccari, then in second grade, transferred to Lawrence Elementary ("Lawrence"). (R. 54, District's Resp. Pls.' SOF ¶ 8.) Jaccari's disruptive behavior increased during this academic year. (Id. ¶ 9a.) On numerous occasions, he was subjected to physical restraint by his teacher and aide. (Id.) In May 2006, he was transferred to a regular education classroom for safety reasons. (Id. ¶ 9b.)

At the end of the academic year, pursuant to an IEP prepared in June 2006, Jaccari's placement was changed to a therapeutic public day school and the service of a one-on-one aide was terminated. (Id. ¶¶ 14a-b.) This IEP based Jaccari's eligibility for special education services on a learning disability and an emotional/behavioral disorder. (Id. ¶ 14d.)

Pursuant to the June 2006 IEP Jaccari transferred to Buckingham Elementary School ("Buckingham"), a public therapeutic day school for children with emotional/behavioral disorders, for the 2006-07 academic year. (Id. ¶ 14e.) At the end of the academic year, another IEP was developed. This IEP stated that Jaccari had a history of Attention Deficit Hyperactivity Disorder (ADHD), Oppositional Defiant Disorder (ODD), Phonological Disorder, and possible expressive receptive language disorder. (Id. ¶ 15.) It also provided for psychological services as well as direct social work services. (Id.)

By the beginning of the 2007-08 academic year, Jaccari had reached the fourth grade. (Id. ¶ 16.) He remained at Buckingham for this school year, but was shifted to a different classroom which changed teachers several times a day. (Id.) According to Buckingham staff, Jaccari continued to behave in a disruptive manner during the fall of 2007. (Id. ¶ 17.) For example, Jaccari would run out of the classroom, kick and bite school staff, and destroy school property. (Id.) Also during the fall of 2007, Jaccari began seeing Dr. Paul Haider ("Dr. Haider"), a counselor with the Chicago Family Health Center. (Id. ¶ 18.) Dr. Haider received reports from both Jaccari and Sandra that he was being bullied and teased by other students and that he was also having problems with teachers and staff. (Id.) In response, Dr. Haider wrote a letter to Buckingham's principal conveying the reports and requesting a full psychological evaluation of Jaccari. (Id.)

During December 2007 and January 2008, Sandra kept Jaccari home from school on most days. (Id. ¶ 19.) The record indicates that this decision was influenced by the difficulties Jaccari was having at school. (Id. ¶ 20; R. 19, Admin. R. at 1928-29.) On December 3, 2007, Sandra requested, pursuant to 20 U.S.C. § 1415(f)(1)(A), a Due Process Hearing to address alleged violations of the IDEA. (R. 54, District's Resp. Pls.' SOF ¶ 21.) In her request, Sandra noted Jaccari's lack of academic success during the previous two years and stated that over the same time period he had "experienced a gradual reduction in support services, even as his behavioral disruptions and learning difficulties have increased." (R. 19, Admin. R. at 708.)

On January 30, 2008, a District psychologist administered cognitive and academic tests to Jaccari. (R. 54, District's Resp. Pls.' SOF ¶ 22.) While noting that Jaccari had a desire to learn, she found that he continued to "exhibit behavioral problems." (R. 19, Admin. R. at 628.) Moreover, her report stated that Jaccari had been "diagnosed with ADHD and has difficulties with impulsivity, lack of focus and distractibility." (Id.) Further, she noted that his level of cognitive ability was within the "mentally deficient range with a Full Scale IQ of 64." (Id.) Two weeks later, on February 14, 2008, Jaccari was tested again by a private psychologist retained by the Metropolitan Family Services, an agency that had provided counseling to Jaccari. (R. 54, District's Resp. Pls.' SOF ¶ 23.) The tests administered to Jaccari revealed that he was functioning "at less than the kindergarten grade level" in both spelling and arithmetic; his reading score, however, was at the kindergarten level. (R. 19, Admin. R. at 634.) The psychologist also concluded that Jaccari "meets the diagnostic criteria for Mild Mental Retardation." (Id. at 635-636.) A week after the second set of tests, a District audiologist conducted an assessment and issued a report stating that Jaccari has a "Central Auditory Processing Deficit in the area of auditory integration."⁴ (Id. at 615.)

Near the end of February 2008, Jaccari resumed his studies at South Central Community School ("South Central"), a private therapeutic day school whose goal is to work with emotionally disturbed students to prepare them to return to a normal classroom setting. (R. 60, Pls.' Resp. Board's SOAMF ¶¶ 3-4.) A few months later, in May 2008, the District completed a special evaluation of Jaccari and convened an IEP meeting on May 20, 2008. (R. 54, District's Resp. Pls.' SOF ¶ 27.) This IEP lists emotional disturbance, mild cognitive impairment, and speech/language impairment as the basis for special services eligibility. (R. 19, Admin. R. at 35.) On July 3, 2008, Sandra filed a dissent outlining numerous objections to the IEP completed by the District on May 20, 2008. (Id. at 1086.) For example, Sandra asserts that the various evaluations completed or relied upon by the District to develop the IEP were either inadequate or unreliable. (See id. at 1086-1089.) Additionally, she objects to the type and intensity of reading remediation, speech language therapy, assistive technology, occupational therapy, psychological, and social work services offered to Jaccari. (Id.) Further, she contends that the IEP provided an inadequate level of related services and failed to integrate the expertise of various key staff members. (Id.)

PROCEDURAL HISTORY

In addition to the dissent, Sandra also filed an amended due process complaint on July 3, 2008. (Id. at 1093.) In her complaint, she requests a Due Process Hearing to address the District's allegedly failure to provide Jaccari with a free appropriate public education, as required by the IDEA, since December 2005. (Id.) She bases this conclusion on various allegations. First, she contends that the District failed to conduct adequate assessments of all areas of potential disability and thus developed deficient IEPs. (Id.) As a result, Sandra avers that the District failed to provide essential related services in the areas of assistive technology, psychological services, social work services, occupational therapy, speech language therapy, and support from a one-on-one aide. (Id.) Additionally, she alleges that the District did not develop an effective behavioral intervention plan and failed to "utilize properly trained staff in use of restraints." (Id.) Finally, she contends that the District failed to identify and utilize effective teaching methodologies at a sufficiently intensive level so as to enable Jaccari to progress commensurate with his cognitive skills. (Id.)

The requested Due Process Hearing convened on October 27, 2008. (Id. at 2.) According to a pre-hearing conference held between the parties, the issues to be addressed during the Due Process Hearing were the following:

(1) Whether the District failed to conduct timely and adequate assessments of all areas of potential disability resulting in an educational program that did not address or inadequately addressed Jaccari's academic and emotional needs;

(2) Whether the District failed to adequately assess Jaccari's cognitive abilities, academic skills, social/emotional needs, communication needs, central auditory processing needs and occupational therapy needs;

(3) Whether Jaccari required and the District failed to provide him with assistive technology, school psychological service, school social work service, occupational therapy service, speech/language therapy and a one-on-one aide;

(4) Whether school personnel failed to implement

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