Z.J. v. Bd. of Educ. of Chi.

344 F.Supp.3d 988

Z.J., a Minor, and L. C-W., Individually and as Guardian and Next Friend of Z.J., Plaintiffs,

v.BOARD OF EDUCATION OF THE CITY OF CHICAGO, DISTRICT NO. 299, and Illinois State Board of Education, Defendants.

Case No. 17-cv-5744

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

Signed September 26, 2018

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

Kathleen Marie Gibbons, Board of Education of the City of Chicago, Lisa A. Dreishmire, Masuda Funai, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

Robert M. Dow, Jr., United States District Judge

Plaintiffs Z.J., a minor, and L. C-W., in her own capacity and as parent and next friend of Z.J. (collectively, "Plaintiffs"), bring this action against the Board of Education of the City of Chicago, District No. 299 ("CPS") and the Illinois State Board of Education ("ISBE") pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. § 1401 et. seq. ("IDEA") to appeal a portion of a decision and order issued by an independent hearing officer after a due process hearing. This matter is before the Court on Plaintiffs' motion for summary judgment [34]. For the reasons explained below, the Court grants Plaintiff's motion [34]. The Court finds that (1) CPS violated IDEA's "Child Find" obligation from March 2015 until April 2017 by failing to evaluate whether Z.J. may be eligible for special education and related services; (2) Z.J. may be entitled to compensatory services designed to provide her with the educational benefits that likely would have accrued from special education services that CPS should have provided, but this issue should be addressed in the first instance by an ISBE hearing officer on remand; and (3) Z.J. is entitled to an award of weekly vision therapy for 36 weeks, as recommended by Plaintiffs' experts, and reimbursement for the costs of Dr. Kim's developmental vision assessment in the amount of $575.00. L. C-W. shall provide CPS with a copy of the itemized bill and proof of payment or, if Dr. Kim has not been paid, a copy of the itemized bill and statement from L. C-W. that the payment should be made directly to Dr. Kim. CPS shall provide reimbursement/payment within 30 days of receipt of the itemized bill. This matter is remanded to an ISBE hearing officer to determine whether Z.J. is entitled to an award of compensatory services and, if so, what services are sufficient to provide Z.J. with the educational benefits that likely would have accrued from special education services that CPS should have provided. Plaintiffs' request for an award of reasonable attorneys' fees and costs remains pending. This case is set for status hearing on October 18, 2018 at 9:00 a.m.

I. Background

The Court takes the relevant facts from the parties' Local Rule 56.1 statements and exhibits thereto, [35], [39], and [41], the administrative record, [14-1] through [14-5], and the affidavit and supplemental report of Dr. Shelley Kim, which are attached to Plaintiffs' unopposed motion to supplement the administrative record, [18-1]. The following facts are undisputed except where a dispute is noted.

This Court has jurisdiction pursuant to 20 U.S.C. 1415(i)(3) and 105 ILCS 5/14-8.02. Venue is proper in this Court. Plaintiff Z.J. brings this action by and through her mother, Plaintiff L. C-W., as guardian and next friend. L. C-W. also brings this action on her own behalf. Plaintiffs reside in Chicago, Illinois, within the boundaries of School District No. 299. At the time the due process hearing that is the subject of this lawsuit was initiated, Z.J. was twelve years and eleven months old and attending 7th Grade at Kwame Nkrumba Academy ("KNA"), a Charter School operated under the auspices of the Chicago Public Schools ("CPS"). CPS is a body politic and corporate organized to maintain a system of free schools commonly known as the Chicago Public Schools District No. 299. CPS may sue and be sued under the name of Board of Education of the City of Chicago. The ISBE is the state education agency charged with responsibility for compliance with requirements of the IDEA throughout Illinois. ISBE was responsible for producing the record of the hearing under appeal in this case.

From preschool through 4th grade, Z.J. was enrolled as a student in private schools in Chicago. In 5th grade, Z.J. transferred to Higgins Elementary ("Higgins"), a CPS school. Z.J. transferred to KNA in 6th grade (the 2015-16 school year) due to concerns about staff turnover, class size, and bullying at Higgins. Z.J. attended KNA in 6th grade and 7th grade (the 2016-17 school year).

CPS uses the Northwest Association Measures of Academic Progress ("NWEA"), along with classroom grades and attendance, to evaluate its students' performance and eligibility for promotion at the end of the school year. The NWEA is typically administered in October, February and June each year. According to CPS, the two main indicia of a student's success and progress are NWEA scores and classroom grades.

The administrative record includes the following NWEA test scores for Z.J.:

• Higgins, 2014-2015 school year

• October 2014:12th percentile in math

• February 2015:15th percentile in math

• June 2015:14th percentile in math

• KNA, 2015-2016 school year

• October 2015:8th percentile in math

• February 2016:17th percentile in math

• June 2016:6th percentile in math

• KNA, 2016-2017 school year

• October 2016:7th percentile in math

• Winter 2017:10th percentile in math

During the fall and early winter of the 2015-16 school year, L. C-W. became concerned about Z.J.'s grades and processing delays. On January 12, 2016, L. C-W. sent a letter to Z.J.'s teacher and to KNA's principal requesting that Z.J. be evaluated. By the end of the 2015-2016 school year—June 21, 2016—Z.J. had not yet been tested. On the last day of school, Parent received a letter stating that Z.J. would be required to repeat sixth grade if she did not attend a summer program and obtain a passing grade in math.

Shortly before the end of the school year, on June 17, 2016, L. C-W. filed a request for a due process hearing and complained that no testing had been done in response to her January 12 letter. The ISBE appointed Mary Jo Strusz as independent hearing officer ("IHO") to conduct a due process hearing. The IHO granted L. C-W.'s motion for a "stay put" order under the IDEA, which required that Z.J. be promoted to 7th grade during the 2016-2017 school year. The due process hearing was delayed pending completion of evaluations related to Z.J.'s eligibility for special education services.

CPS conducted an initial evaluation on July 29, 2016. The evaluation included the following: 1) a psychological evaluation by a CPS psychologist; 2) a social work assessment by a CPS social worker; 3) an occupational therapy assessment by a CPS occupational therapist; and 4) a speech evaluation by a CPS speech/language pathologist. On September 19, 2016, Z.J. underwent a central auditory processing evaluation by a CPS audiologist. On October 5, 2016—while she was in 7th grade at KNA—Z.J. was determined to be eligible to receive special education services. The basis of eligibility was a specific learning disability.

CPS convened an Individualized Education Program ("IEP") meeting on October 12, 2016, at which it was determined that Z.J. was eligible for the following: consultative services between Z.J.'s teacher and a special education teacher regarding math and language arts for 20 minutes per week; direct speech language services from a speech/language pathologist; and certain modifications and accommodations. L. C-W. had concerns about the adequacy of CPS's evaluations and therefore requested independent educational evaluations ("IEEs") at CPS's expense.

CPS requested a due process hearing to obtain a ruling that its evaluation was comprehensive and appropriate as required by the IDEA and that Plaintiffs' request for IEEs at CPS's expense should be denied. ISBE again appointed Mary Jo Strusz as the IHO and consolidated the case with Plaintiffs' due process case.

Prior to the due process hearing, L. C-W. arranged for several private evaluations by medical professionals. These included a comprehensive speech/language evaluation and an assistive technology assessment by Dr. Janet Marsden-Johnson, Ph.D., a neuropsychological evaluation by Dr. Jacqueline Rea, Ph. D, and an occupational therapy evaluation by Mary Block, M.S. O.T.R./L. Block halted her testing because of concerns about Z.J.'s vision and recommended a comprehensive vision assessment. L. C-W. therefore arranged for a vision exam with Dr. Shelley S. Kim, F.C.O.V.D., a behavioral optometrist. A written report from Dr. Kim's initial exam noted diagnoses of bilateral myopia and a binocular vision disorder. Dr. Kim recommended a full evaluation for visual efficiency skills and minimum 9 months of weekly vision therapy sessions. Dr. Kim's full evaluation of visual efficiency skills was delayed because of AN inadvertent misunderstanding by Dr. Kim's staff that postponed scheduling the follow up evaluation. Dr. Kim's report on the visual efficiency assessment—which was issued on March 21, 2017 and not available at the due process hearing—made diagnoses of accommodative infacility, convergence insufficiency and oculomotor dysfunction. Dr. Kim recommended a course of vision therapy to remediate these conditions and help Z.J. develop the necessary visual abilities for academic achievement. The cost of the recommended 36 weeks of vision therapy is $5,765.00 and the cost of the vision assessment is $575.00. The recommended vision therapy program would emphasize the following:

- Monocular activities designed to equalize the focusing, tracking and pointing of each eye.

- Binocular work to improve eye-teaming efficiency.

- Visual-spatial tasks to develop integrated sequential and directional concepts.

- Form training stressing: visual discrimination, spatial relationships, form

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