Opinion
No. 98 C 2914
August 18, 2000
Opinion and Order
After a bench trial, the parties submitted their respective findings of fact and conclusions of law. Upon review of the evidence presented at trial and of the parties' submissions, the court finds that M.T. is properly placed within the Chicago Public School System ("CPS").
I. Background
A. Jurisdiction
The court possesses subject-matter jurisdiction over this case pursuant to 28 U.S.C. § 1331 because the case arises "under the Constitution, laws, or treaties of the United States." Id. Specifically, Plaintiffs seek relief under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (1996) ("IDEA") and § 504 of the Rehabilitation Act, 29 U.S.C. § 794 ("Section 504").
Plaintiffs filed their Complaint in federal court on March 12, 1998 under the 1996 version of the IDEA. Although the IDEA was amended on June 4, 1997 by Pub.L. 105-17, 111 Stat. 37, subchapters I and II of the IDEA relating to individualized education programs remained in effect until July 1, 1998. Accordingly, references to the IDEA in this opinion relate to the 1996 version of the IDEA.
B. The Parties' Joint Findings of Fact
M.T. is an eleven year old girl, born June 19, 1988. (See Joint Stmt of Facts, ¶ 1.) M.T. lives with her parents and siblings on the South side of Chicago. Her father is a paramedic with the Chicago Fire Department and her mother is a registered nurse. (See id. ¶ 2.) She has an older brother who is 16 and a younger sister who is 6 years old. ( See id., ¶ 3.) M.T. first entered the Chicago Public School System when she was three years old. She attended the Stevenson School in the Early Childhood Program. ( See id. ¶ 4.)
On or about May 30, 1997, Mr. and Mrs. T. filed a request for due process with the Chicago Public Schools, which was forwarded to the Illinois State Board of Education for the appointment of a hearing officer. M.T.'s parents requested placement in a therapeutic day school. ( See id. ¶ 5.) On June 18, 1997, the Illinois State Board of Education appointed Impartial Hearing Officer ("IHO") Ruth Bauman as the hearing officer for this matter. ( See id. ¶ 6.) On September 10, 1997, pursuant to the mediation process that the State offers when due process requests are filed, the parties agreed to place M.T. in the Christopher School while these proceedings were pending. ( See id. ¶ 7.)
The history of M.T.'s placement in the Chicago Public Schools beginning with her Early Childhood placement at the Stevenson School and prior to the agreement to place her temporarily at the Christopher School is as follows:
a. On April 29, 1990 when she was two years, ten months old, M.T. was evaluated by a multi disciplinary team at Christ Hospital and was identified as having moderate global development delay secondary to seizure disorder; developmental language disorder and suspected oral apraxia.
b. She was referred to the Board's Early Childhood special education programming by the staff at Christ Hospital.
c. On June 20, 1991, her parents consented to a case study evaluation for M.T.
d. On August 16, 1991, a multi-disciplinary conference was held wherein the results of the Board's evaluation were reviewed along with the independent evaluation from Christ Hospital. At that time, the team concluded that M.T. had a significant cognitive impairment because she suffered from developmental delay, short attention span and delayed speech and language development, thus qualifying her for special education and related services under IDEA and the Illinois School Code.
e. M.T.'s parents consented to her placement at the Stevenson School at the August 16, 1991 meeting.
f. On November 18, 1992, M.T.'s parents met with the Board team for M.T.'s first annual conference. It was then noted that M.T., who at that time was 4 years 5 months old, functioned academically at the age equivalence of a child 1 year and 6 months; she had gross motor skills equivalent to that of a child aged 2 years 4 months and the fine motor skills equivalent to those of a child aged 2 years 7 months. Her independent functioning skills were those of a child 1 year 11 moths old. Her social emotional age was 2 years 6 months and her total communication skills were that of a child 1 year 4 months old. She had not yet mastered any of the goals set for her the previous year, so her individualized education program ("IEP") was continued with the aim of mastering those goals in the upcoming year. She attended the Stevenson School during the 92-93 school year.
g. At the time of her second annual IEP conference, December 29, 1993, evaluations using the Brigance Diagnostic Inventory of Early Development assessed M.T.'s cognitive ability at 24 months. Her chronological age was 5 years 6 months. Gains in independent living skills were noted. Her total communication skills (receptive and expressive language) were assessed at the 17-20 month level (1 year 5 months to 1 year 8 months). A self-stimulation movement of rocking was noted. During the 93-94 school year she attended the Blair Early Childhood Special Education Center.
h. On January 4, 1994 M.T. underwent a triennial reevaluation as required by IDEA. After that evaluation, on March 9, 1994, a multi-disciplinary conference reviewed the results with M.T.'s parents. The multi-disciplinary conference was continued to March 24, 1994, so that additional testing could be done. M.T. tested on the Brigance Inventory at the approximate level of a 24 month old child with scattered scores reaching the age of 30 months. Her speech and language goals remained at the 18-24 month levels.
i. At the time of her third annual IEP conference, held on December 16, 1994, M.T. showed the academic equivalence of a child 1 year 6 months old; she was functioning at a pre-academic level in the area of Cognitive/Language Development. M.T.'s seizures had increased and it was noted that she was accompanied on the bus by an LPN and was in an air-conditioned bus and classroom when temperatures were over 85 degrees. She attended the Jane A. Neil School during the 1994-95 school year.
j. Her fourth IEP conference, held on June 19, 1996, revealed that she still functioned at an approximate academic level of 18-24 months old. It was noted that she needs a nurse in the building at all times to administer medication for prolonged seizures. Also, she was being provided with air conditioning to keep temperatures below 75 degrees. She attended the Jane A. Neil School during the 1995-96 school year.
k. The triennial review was required to be done in February 1997. M.T.'s parents notified the school that they were arranging for a private evaluation at Christ Hospital.
l. A social assessment report completed at the Neil School in April, 1997 indicated much progress in M.T.'s behavioral and emotional growth and a small amount of growth in her academic skills. According to the report, M.T.'s mother would like to see her make more gains and progress in her daily functional skills.
m. On May 26, 1997, M.T.'s parents and their advocate (Dr. W.) presented the report from Christ Hospital. That report indicated that she was functioning at the 27 month level.
n. At the May 26, 1997 multi-disciplinary conference, which also served as the triennial review, the Chicago Public Schools determined that M.T. was eligible for services based on her disabilities in the area of Other Health Impairment, Cognitive Impairment (TMH) and Speech/Language Impairment. Her IEP reflected that she was functioning academically at the 24-30 month level.
o. M.T.'s May 26, 1997 IEP called for the following services:
1. Licensed practical nurse, 300 minutes per week (mpw) for transportation to and from school on bus.
2. Nursing care (consultative or direct), 100 mpw.
3. Speech/Language Therapy, 30 mpw.
4. Occupational Therapy, 30 mpw.
5. Consult psychologist, 15 mpw.
6. Consult social work service, 14 mpw.
7. Program for students with severe cognitive/health impairments, 1500 mpw.
8. Participation with non-disabled peers, lunch, 150 mpw.
9. Extended school year, 6 weeks, June 30-August 8.
p. The May 26, 1997 IEP retained M.T. at the Jane A. Neil School. Thereupon, M.T.'s parents objected to continued placement at the Jane A. Neil school, and requested a due process hearing by letter dated May 30, 1997.
(See Joint Stmt of Facts ¶ 8.) The mediation process resulted in M.T.'s placement at the Christopher School where she remains, pending this court's ruling. (See id. ¶ 9.)
C . The Court's Findings of Fact
To the extent, if any, that the Findings of Fact as stated may be deemed Conclusions of Law, they should be considered Conclusions of Law. Likewise, to the extent that matters expressed as Conclusions of Law may be deemed Findings of Fact, they should also be considered Findings of Fact.
A Level I due process hearing was held on October 21, 1997 before Ruth Bauman. (See Level I Hearing Dec., R. Vol. II p. 351-63.) The issues delineated by M.T.'s parents for resolution at the due process hearing included:
(a) whether CPS failed to provide MT. with a free appropriate public education under the IDEA by failing to fully implement the IEP and failing to provide a safe classroom and measurable education progress;
(b) whether CPS failed to provide professional nursing services, sufficient staff and safe bus transportation;
(c) whether CPS failed to document and record daily school activities;
(d) whether a therapeutic day school more appropriately meets the intention of the IDEA for M.T.
(See id. p. 354.) At a pre-hearing conference, Plaintiffs advocate Dr. W. agreed that CPS committed no procedural violations when it placed M.T. at the Christopher School and that the tests completed by CPS were appropriate in degree and properly administered. (See id.) At the due process hearing, M.T.'s parent did not raise as issues whether the amount of speech or occupational therapy services that M.T. was receiving were adequate to meet her needs or whether the goals outlined in M.T.'s IEP were appropriate. (See id. p. 351-363) M.T.'s parents also did not contest M.T.'s diagnosis of severe/profound cognitive impairment or present any evidence regarding a diagnosis of autism at either the Level I or Level II due process hearing. (See id.)
At the Level I hearing, both sides presented documentation, including a report by Dr. Robert T. Egel, which was submitted by the parents. (See Dr. Egel Report, R. Vol. II p. 338-39.) The Level I IHO specifically noted Dr. Egel's report and opinions. (See Level I Hearing Dec., R. Vol. II p. 356.) Three witnesses testified at the Level I hearing: M.T.'s teacher from Neil, M.T.'s teacher from Christopher, and the nurse/supervisor from Christopher. (See id. p. 351.) A decision was rendered on October 25, 1997 in which the IHO determined:
Dr. Egel, a pediatric neurologist, treated M.T. for her seizure disorder, and on behalf of M.T.'s parents, submitted a letter dated October 3, 1997 in which he indicates that M.T. should be placed at Elim. (See R. Vol. II 338-339)
(a) From a review of records and documents, and from hearing oral testimony, it is clear that the educational program and good-faith by the staff at Neil school have resulted in growth and some educational gain by M.T. In consideration of M.T.'s many disabilities, the educational gains have been appropriate. The allegation that the staff has not achieved enough educational growth is unfounded. (See R. Vol. II p. 358);
(b) According to testimony from the classroom teacher and supervising registered nurse at Christopher, sufficient medical services are available for M.T. at Christopher School, so the parent's allegation that Christopher School does not have sufficient medical services is unfounded. (See id. p. 358-59);
(c) According to testimony from classroom teachers at both Neil and Christopher, it was affirmed that the teacher/aide to student ratio are within the requirements of the law, so the allegation that the classrooms at either Neil or Christopher School are out of compliance is unfounded. (See id. p. 359);
(d) Safe bus transportation was discussed at the hearing and it was affirmed that the transportation requirements of the IEP have been adhered to. Thus, the allegation that M.T.'s bus transportation is unsafe is unfounded. ( See id. p. 359);
(e) Regarding the issue of failure to provide good documentation of classroom seizure activity and procedures, it is the opinion of the hearing officer that the district is not in compliance on this issue. (See id. p. 360); and
(f) Regarding the issue of placement at a therapeutic school, the hearing officer held that IDEA requires that a student with disabilities be placed in the least restrictive environment, and the programs at both Neil and Christopher meet the requirement of the law. The allegation that MT. needs a therapeutic day school is unfounded, and placement at Christopher School is in order. (See id. p. 361.)
The court notes here that the powers of an IHO is likewise not without limits; as the Level 4 IHO stated in her decision: "It is this IHO's opinion that it is not the role of an IHO to visit alternative placements and chose 'the best' one." (R. Vol. II p. 353.)
M.T.'s parents appealed the Level I hearing decision to a Level II administrative review. Neither M.T.'s parents nor CPS presented additional evidence at the Level II hearing, but rather submitted briefs in support of their respective positions. (See Level II Administrative Order, R. Vol I p. 1-2.) On review, the parents contended that the Level I hearing officer did not address Dr. Egel's report. (See id. p. 1.) The Level II hearing officer Raymond McAlpin concluded that the Level I hearing officer had taken into account all of the evidence, including Dr. Egel's report. (See id. p. 6-7.) The Level II hearing officer went on to state that even if Dr. Egel's conclusions were given full weight, his findings failed to meet the test of the law. (See id. p. 7.) The Level II IHO stated that Dr. Egel's conclusions were based on clinical information, and not on information regarding programs offered by CPS, and determined that the requirement for least restrictive environment is better met for M.T. within CPS. (See id.) Thus, on January 12, 1998, the Level II IHO affirmed the Level I decision, and held that CPS provided MT. a free appropriate public education in the least restrictive environment pursuant to the IDEA. (See id. p. 8.)
Dr. Egel did not testify at the Level I hearing, Level II hearing or in the instant matter. M.T.'s parents offered no evidence during the two day trial on November 16, 1999 or December 17, 1999 regarding the Level I hearing officer failing to consider Dr. Egel's report. M.T.'s parents offered no additional evidence during the two day trial regarding the following issues, other than those points raised in their due process request:
(a) that M.T.'s room at Christopher school is unsafe;
(b) that Christopher school does not have sufficient medical services for
(c) that the student/teacher ratio at either Neil or Christopher are out of compliance with state regulations;
(d) that M.T.'s bus is unsafe;
(e) that Christopher school failed to provide good documentation regarding M.T.'s seizure activity.
M.T.'s parents did not present at the Level I hearing, Level II review, or the two day trial, documentation or a witness regarding the education program at Elim Christian School ("Elim") or any other private institution. No party presented evidence regarding whether or not Elim has a classroom specifically designed for children with autism and communication disorders, as described by Plaintiffs' expert Dr. Ruth Kraus ("Kraus"). No party presented evidence regarding the qualifications and certifications of the teachers at Elim, particularly in dealing with students with autism.
Since September, 1997, M.T. has attended the Christopher School, which is part of CPS. Christopher School has 252 students. Two hundred of these students have a disability. Approximately 50 students have severe and profound disabilities, like M.T. Christopher School has 20 teachers certified to teach students with severe and profound disabilities. The school also has on staff 1 registered nurse, 7 licensed practical nurses, 4 physical therapists, 3 occupational therapists, 1 occupational therapist aide, 2 speech pathologists, 2 speech aides, and 1 social worker. Christopher School also has itinerant teachers for students who have autism, vision impairments, hearing impairments and traumatic brain injury, and these teachers come to the school as needed depending upon the student's individual needs.
Erynn Bergstein was M.T.'s classroom teacher for the 1998-99 school year. Ms. Bergstein is certified in elementary education, and she is certified to teach students who are diagnosed trainable mentally handicapped ("TMH"). She also has worked with students who have autism. Ms. Bergstein is certified to teach students with M.T.'s disabilities.
At Christopher School, M.T. has a one-on-one licensed practical nurse who is with her at all times. Kari Callahan is M.T.'s classroom teacher for the 1999-2000 school year. Ms. Callahan is certified to teach students who are diagnosed educable mentally handicapped, trainable mentally handicapped, and learning disabled. Although the state of Illinois does not have a certification for teaching students with autism, Ms. Callahan is receiving training on best practices for teaching students with autism. Ms. Callahan is certified to teach students with M.T.'s disabilities.
Ms. Callahan's classroom currently includes seven students, including M.T. Four adults assist the seven children in that classroom. M.T. has one-on-one assistance in all areas at Christopher School. M.T. receives pre-vocational training through occupational therapy and her classroom goals. These activities address daily living skills, such as dressing herself, eating, toileting, and doing the laundry. M.T. receives speech services and occupational therapy in both group and individual sessions. Additionally, Ms. Callahan works with M.T. daily on her communication skills.
M.T.'s parents have never requested that: (1) M.T. receive more speech services or occupational therapy at Christopher school; (2) M.T. receive physical therapy at Christopher school; or (3) M.T.'s prevocational goals be amended to include different activities, such as cutting food. All suggestions from M.T.'s parents regarding goals have been incorporated into M.T.'s current IEP.
While at Christopher, M.T. has made significant progress and has mastered many of the goals outlined in her IEP. In particular, during the 1998-99 school year, M.T. made progress toward her IEP goals concerning interacting with her peers and staff and participating in group activities. During the current 1999-2000 school year, M.T. is making progress toward her IEP goals, particularly in socializing with her peers, nondisabled students and the adults at Christopher; communicating appropriately with the other students and staff; counting to ten; pre-vocational skills, such as sorting a variety of objects; and identifying colors.
Since M.T. arrived at Christopher in September, 1997, she has become much friendlier. M.T. will greet staff with a "Hi" and a hug, and she will hold hands with staff and other students. At Christopher, M.T. interacts with nondisabled peers for lunch, recess and school assemblies; has a nondisabled friend who assists her in the hallway; and nondisabled students come into M.T.'s classroom for weekly activities.
The IEPs written for M.T. at Neil and Christopher school have all been calculated to provided educational benefit, and M.T. has shown progress. M.T.'s parents have never observed M.T. in her classroom at Christopher. During the 1998-99 school year, M.T.'s classroom was in a mobile unit without windows so M.T.'s mother could not have stood in the hallway and looked into the classroom. M.T.'s parents have never spoken with any of M.T.'s teachers at Christopher regarding her progress. M.T.'s parents have never come to report card pick-up nor have they attended a parent-teacher conference while M.T. has been enrolled in Christopher.
Subsequent to the Level II hearing, in October 1998 and in December 1999, the CPS created two IEP's for M.T. Between the first and second day of trial testimony in the instant matter, on December 1, 1999, M.T.'s father attended the second of these IEP conferences. M.T.'s father had input into the IEP, and his goals and requests were incorporated into the IEP.
Therese Finn, a clinical psychologist, school psychologist, neuropsychologist, and certified special education teacher, evaluated M.T. for CPS. Dr. Finn has diagnosed between 200 and 300 students with autism. After observing M.T. in her classroom and after performing evaluation measures, Dr. Finn concluded that M.T. had health impairments due to her seizure disorder and a cognitive disorder in the severe to profound range. With a severe to profound cognitive impairment, M.T.'s progress will be very slow, and as she ages the disparity between her and her peers will become greater. M.T. currently functions at the level of a two year old.
M.T. is not autistic. M.T. has autistic-like behaviors, such as her perseveration or repetitive activities. However, unlike children with autism, M.T. socially interacts with other students and staff and shows affection. M.T. makes eye contact, whereas children with autism do not. Dr. Finn observed M.T. tracking students in the cafeteria with her eyes. Additionally, Dr. Finn does not believe that M.T. echoes speech which is common for children with autism, but rater she repeats her favorite words. Moreover, M.T. does not have difficulty transitioning from one activity to another, but a child with autism has great difficulty transitioning. In Dr. Finn's expert opinion, M.T.'s IEP is appropriate and calculated to provide educational benefit, and Christopher is the appropriate placement for M.T.
M.T.'s parent's witness, Ruth Kraus, is not a school psychologist, neuropsychologist or certified special education teacher. Additionally, Dr. Kraus never spoke with Ms. Callahan or observed M.T. in Ms. Callahan's classroom.
Dr. Kraus did not utilize the Gilliam Scale or Carrs Childhood Autism Rating Scale with MT. even though these two rating scales are most commonly used by psychologists in evaluating and diagnosing autism in a child. Further, Dr. Kraus never developed a rapport with M.T. during her evaluation. Further, M.T. had a seizure before Dr. Kraus's classroom visit so she was sleeping for the majority of Dr. Kraus' visit. Dr. Kraus never spoke with M.T.'s speech pathologist or occupational therapist; nor did she speak with the registered nurse at Christopher, the case manager, Ms. Hayes, or the principal regarding M.T.
II. Discussion
The IDEA provides that on administrative review of agency decisions under IDEA, a district court shall receive the administrative record and any additional evidence at the request of a party, and base its decision on the preponderance of the evidence. See 20 U.S.C. § 1415(e)(2)(1996);see also Patricia P. v. Board of Educ. of Oak Park, 203 F.3d 462, 466 (7th Cir. 2000) (citing 20 U.S.C. § 1415(e)(2)(1996)); Hunger v. Leininger, 15 F.3d 664, 669 (7th Cir. 1994). As the court in Patricia P. iterated:
a district court must independently determine whether the requirements of the Act have been satisfied. In developing this standard, Congress specifically rejected language which would have made state administrative findings conclusive if supported by substantial evidence. However, because courts do not have special expertise in the area of educational policy, they must give "due weight" to the results of the administrative decisions and should not substitute "their own notions of sound educational policy for those of the school authorities which they review."203 F.3d at 466 (quoting Board of Educ. of Murphysboro v. Illinois Bd. of Educ., 41 F.3d 1162, 1166 (7th Cir. 1994) (citations omitted) (emphasis added by Patricia P. court) and citing Morton Community Unit Sch. Dist. v. J.M., 152 F.3d 583, 587-88 (7th Cir. 1998) ("[C]ourts (the district court and then this court, using the same standard) should give due deference to the hearing officers' judgments."); Heather S. v. State of Wis., 125 F.3d 1045, 1052-53 (7th Cir. 1997)). Accordingly, Plaintiffs "bear the burden of proof as the party challenging the outcome of the state administrative hearings. . . ." Patricia P., 203 F.3d 466-67 (citing Murphysboro, 41 F.3d at 1167).
Congress created the IDEA "`to ensure that children with disabilities receive an education that is both appropriate and free.'" Id. at 467 (quoting Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 13 (1993) (in turn citing School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359, 373 (1985))). A free appropriate public education ("FAPE") is an education "specially designed to meet the unique needs of the handicapped child, supported by such services as are a necessary to permit the child 'to benefit' from the instruction." Id. (quoting Board of Educ. v. Rowley, 458 U.S. 176, 188-89 (1982)); see also Board of Educ. of LaGrange Sch. Dist. No. 105 v. Illinois State Bd. of Educ., 184 F.3d 912, 915 (7th Cir. 1999). Furthermore, the IDEA provides federal funds to "`assist State and local efforts to provide programs to meet the educational needs of children with disabilities in order to assure equal protection of the law.'" Id. (quoting 20 U.S.C. § 1400(b)(9)(1996)). "The IDEA requires a state to determine what is uniquely 'appropriate' for each child's education by preparing an IEP developed through the joint participation of the local education agency, the teacher, and the parents." Id. (citing 20 U.S.C. § 1401(a)(18)-(20)); 1412(4); 1414(a)(5)(1996)). The IDEA does not require, however, that students with disabilities be provided the best possible education or the placement the parents prefer. See Heather S. v. State of Wis., 125 F.3d at 1057 (citations omitted).
The IDEA provides a hearing process to challenge the adequacy of the IEP. After a complaint is brought, an impartial Level I hearing is conducted by an administrative officer. The Level I decision may then be appealed to a Level II administrative officer. A party may then challenge a Level II decision in a civil action in state or federal court. See 20 U.S.C. § 1415(e)(2) (1996).
Importantly, "the purpose of the IDEA is to 'open the door of public education' to handicapped children, not to educate a handicapped child to her highest potential." Patricia P., 203 F.3d at 467 (quotingMurphysboro, 41 F.3d at 1166). Moreover, "Under the IDEA, children with disabilities must be mainstreamed with non-disabled peers to the extent possible." Murphysboro, 41 F.3d at 1166; see also LaGrange Sch. Dist. No. 105, 184 F.3d at 915 (noting strong preference in favor of mainstreaming). Additionally, "the regulations that implement the IDEA suggest that disabled students should be placed in the least restrictive environment ("LRE") to the `maximum extent appropriate.'" Heather S. v. Niles Twp. High Sch. Dist. No. 219, No. 99 C 1827, 1999 WL 1100931, at *5 (N.D. Ill. Dec. 2, 1999) (citing 34 C.F.R. § 300.550(b)(1)). Furthermore, "In implementing the LRE mandate, each school district must maintain a continuum of program options which range from regular classrooms with supplementary aids to separate schools and residential facilities." Murphysboro, 41 F.3d at 1168 (citing 34 C.F.R. § 300.551(b)(1)). "Thus, the regulations contemplate that mainstreaming is not required in every case." Id. (citations omitted).
Additionally, a district court cannot require a school district to do more than: (1) follow the procedures set forth in the IDEA; and (2) develop an IEP through procedures reasonably calculated to enable the child to receive educational benefits pursuant to the IDEA. Rowley, 458 U.S. at 206-07; Patricia P., 203 F.3d at 467; Murphysboro, 41 F.3d at 1166. This limitation is separate from the LRE requirement. See LaGrange Sch. Dist. No. 105, 184 F.3d at 916, n. 1 (stating that the Rowley standard did not reach the issue of placement in the least restrictive environment, but limited its decision to an analysis of the level of supplementary services required under IDEA) (citing Lachman v. State Bd. of Educ., 852 F.2d 290, 294 (7th Cir. 1988)). And thus is the scheme that pits parents of disabled children, who understandably desire the very best educational environment for their child, against local school systems that, while striving for the same goal as the parents, are limited by their resources.
After a plaintiff files an IDEA case in federal court, the determination of whether to allow additional evidence under § 1415(e)(2) is left to the discretion of the trial court which "must be careful not to allow such evidence to change the character of the hearing from one of review to a trial de novo." Patricia P., 203 F.3d at 470; but see Kirkpatrick v. Lenoir County Bd. of Educ., No. 99 C 1609, 2000 WL 792314, at *4 (4th Cir. June 20, 2000) ("a district court does not simply affirm, reverse, or vacate the decision of the state administrative agency. Instead, it offers its own independent de novo review and conclusion."). Although a district court is not mandated to hear testimony at the request of a party in a IDEA proceeding, see id. (citation omitted), the court allowed such additional evidence. That said, the court disagrees with CPS's assertions that:
The Kirkpatrick court also held that while a federal district court may review a state review officer's decision and even defer to that decision, the federal district court does not sit as an appellate court.See No. 99 C 1609, 2000 WL 792314, at *5.
all evidence presented by M.T.'s parents [in pleadings and at trial] regarding the amount of speech services, occupational therapy, physical therapy, the adequacy of M.T.'s prevocational and daily living skills goals, and a diagnosis of autism are not properly before this court since parents did not raise these issues during the Level One or Level Two review.
Plaintiffs point out that "[t]he administrative hearing officers did not have the benefit of Dr. Kraus' report, or of the testimony presented by plaintiffs in this court, namely testimony by Dr. Kraus and Parents, as well as the cross-examination of the Board's witnesses presented to this Court. Also, the Level II hearing officer did not have M.T.'s two most recent IEPs or Dr. Kraus' report." (Pls.' Proposed Findings of Fact and Conclusions of Law ¶ 38.)
(CPS's Proposed Findings of Fact and Conclusions of Law at 10.) The court has reviewed the two post-Level II IEP's, and it is clear that Plaintiffs' arguments related to these IEP's boil down to the following:
(1) the IEP's differ from the recommendations from the independent evaluation Plaintiffs obtained from Christ Hospital in that the IEP's
(a) did not allow for the proper amount of speech therapy, and
(b) did not properly provide and utilize an augmentative communication device with M.T.; and
(2) the IEP's support Dr. Kraus' findings that
(a) M.T. is autistic, M.T. should treated as autistic, and the CPS lacks the resources to properly care for M.T.; and
(b) M.T. is regressing.
(See Pls.' Proposed Findings of Fact and Conclusions of Law at 13-18.)
Given the above findings of fact, the court disagrees with Plaintiffs' conclusions that: (1) the CPS's rejection of M.T. into its autistic program based on the opinion of a psychologist who was not on M.T.'s IEP team violated the IDEA (see Pls.' Proposed Findings of Fact and Conclusions of Law ¶ 21); (2) the CPS has not followed M.T.'s IEP in that she was not provided with an augmentative communication device or an appropriate assessment (see id. ¶ 27); (3) the IEP is inadequate for M.T., an autistic child (see id. ¶ 28); and (4) the administrative board incorrectly found that M.T. was making appropriate progress. (See id. ¶ 37.) Despite Dr. Kraus' opinions, court concludes that CPS has placed M.T. in the least restrictive environment and has met both prongs of Rowley.
The court notes that parents who are unsatisfied with a school's education of a disabled child could quite easily pay an expert who would perform an independent evaluation of the child and conclude that the CPS is not providing an effective education for the child.
1. LRE
In addition to the facts discussed above, which support that the CPS placed M.T. in the LRE, M.T. has interaction with nondisabled peers at Christopher School. Nondisabled peers come to M.T.'s room for weekly activities; M.T. is with nondisabled peers for lunch, recess and school assemblies; and M.T. has a nondisabled friend who assists her in the hallway. Further, M.T.'s parents want her segregated from all nondisabled peers, and Elim would provide M.T. no opportunities for interaction with nondisabled peers. M.T.'s parents' request violates the LRE mandate and the IDEA. Consequently, the LRE mandate of IDEA requires that M.T. stay within CPS, and that either she stay at Christopher or return to her neighborhood school, Mt. Greenwood, which would be the least restrictive environment for M.T.
2. Requirements of Rowley
Plaintiffs do not argue that the CPS failed to follow the procedures set forth in the IDEA regarding the Level I and Level II hearings. Additionally, to the extent Plaintiffs argue that events occurring subsequent to the Level II hearing resulted in failed IDEA procedures, the court disagrees. The facts discussed above support the Level I and Level II decisions as well as the CPS's procedures. The subsequent IEP's and examination of Dr. Kraus do not alter this conclusion. See Rowley, 458 U.S. at 206.
Furthermore, the CPS developed IEP's through procedures reasonably calculated to enable the child to receive educational benefits pursuant to the IDEA. M.T. has made significant educational gains at Christopher under all IEP's. Ms. Callahan, Ms. Hayes and Dr. Finn all testified regarding M.T.'s progress at Christopher, especially in the area of socialization. M.T. now interacts with her peers, nondisabled students, and the adults at Christopher. Additionally, M.T. has mastered many of the goals outlined in the October 1998 IEP. She communicates appropriately with the other children and staff; she counts to ten; she is excellent at sorting a variety of objects; and she knows her colors. This evidence demonstrates that the October 1998 and December 1999 IEPs provide M.T. with educational benefit and growth. In short, she has made significant progress at Christopher, especially considering her multiple disabilities and that cognitively she is functioning at the two year old level. Accordingly, the Level I and Level II hearing decisions are supported by a preponderance of the evidence. Moreover, evidence unavailable at the time of the Level II hearing fails to alter the conclusion that the IEPs are reasonably calculated to enable M.T. to receive educational benefits pursuant to the IDEA. See Rowley, 458 U.S. at 406-06. In sum, M.T. has received, and is presumably receiving, a free appropriate public education in accordance with IDEA.
III. Conclusion
For the foregoing reasons, the court finds, after conducting a bench trial, that the CPS did not violate the IDEA in its education of M.T.