Jackson v. Chicago Public Schools et al, No. 1:2015cv06990 - Document 73 (N.D. Ill. 2017)

Court Description: MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 6/13/2017: Ruling date of 6/27/2017 is stricken.Terminate civil case.Mailed notice(wp, )
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Jackson v. Chicago Public Schools et al Doc. 73 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION KIMYUNA JACKSON, MOTHER OF PLAINTIFF A MINOR CHILD, JABARI LAMAR JACKSON, Plaintiff, Case No. 15 C 6990 v. Judge Harry D. Leinenweber CHICAGO PUBLIC SCHOOLS, et al. and THE ILLINOIS STATE BOARD OF EDUCATION, et al., Defendants. MEMORANDUM OPINION AND ORDER The Jabari Plaintiff, Lamar plaintiffs”), Independent Defendant, “Board”), Kimyuna Jackson seeks Hearing Board of developed Jackson, (Collectively, judicial Officer Education an mother review of (“IHO”) of the Individualized the the of minor child, “Plaintiff decision who found City of Education or of an that the Chicago (the Plan (“IEP”) which identified the Plaintiff-student’s special education needs and services in a timely manner under the circumstances of this case. proving Because the Plaintiff has failed to sustain her burden of the IHO wrong, the Plaintiff’s Motion for Summary Judgment is denied and the case is dismissed with prejudice. Dockets.Justia.com I. BACKGROUND This case has had a tortured procedural history due to the Plaintiff proceeding pro se. Back in August 2015 the Plaintiff filed a four-count Complaint against the Board to assert a tort (sexual assault) claim (Count I), and seeking to overturn the IHO’s decision contending that (1) that Plaintiff did not receive a Free and Appropriate Public Education (“FAPE”), (2) the IHO exhibited and “unethical [sic] bias” toward plaintiffs during the due process hearing, and (3) that the Board violated the State and federal requirement that that Plaintiff’s IEP be issued within 60 days of receiving a parental consent for an evaluation. (Counts II-IV). On August 18, 2015, the Court dismissed Count I as inappropriate for an administrative review proceeding and summarized all of her remaining claims as seeking judicial review of the IHO’s decision approving the IEP for the plaintiff’s son. On February 8, 2016, Plaintiff filed a Motion seeking Summary Judgment on the four counts of her Complaint as originally filed, even though the Court had dismissed Count I and consolidated her remaining claims into a single count. The Court summarily denied her Motion because, among other things, it violated Local Rule 56.1, and warned Plaintiff that if she wished to refile she needed to focus on the limited issue of whether the IHO’s decision was erroneous. - 2 - She then filed a second Motion for Summary Judgment comply with Local Rule 56.1. but once again failed to The Court once more denied her Motion and again warned her that she needed to focus on the IHO decision and follow the local rules. On April 28, 2017, Plaintiff, now represented by counsel, filed her third Motion for Summary Judgment, which now focused only on the IEP’s timeliness issue, to the exclusion of her claims that the Board had not provided Plaintiff with a FAPE or provided necessary services in a timely manner, and her ethnic bias claim. II. Under the STANDARD OF REVIEW Individuals with Disabilities Education Act (“IDEA”), local agencies such as the Board have an affirmative duty to identify, locate and evaluate a potentially disabled child and provide education services. an IEP, designed to with need special Failure to do so constitutes a denial of a FAPE, and is a violation of the IDEA. dissatisfied provide an IEP hearing before an IHO. may seek Under the IDEA a party review at a due process The decision of the IHO in turn is reviewable by a federal district court, with the party seeking relief bearing the burden of proof. is to determine procedural whether requirements the of The reviewing court’s role District the IDEA has and complied whether with the IDE the is reasonably calculated to enable the child to receive educational - 3 - benefits. The reviewing court is to make its decision on a preponderance of the evidence standard, and shall grant such relief as the court determines is appropriate. 20 U.S.C.A. § 1415(i)(C). The normal procedure before the reviewing court is to rule by summary judgment at the request of either party or both. The standard for summary judgment for this type of administrative review differs from the standard set forth in Rule 56 (FED. R. CIV. P. 56). In this proceeding the court reviews the administrative record together with any additional evidence submitted and decides factual preponderance of the evidence in the record. based on the The court also owes considerable deference to the hearing officer and may set aside the administrative order only if is strongly convinced that the order is erroneous. Evanston Community Consolidated School Dist. v. Michael M., 356 F.3d 798, 793 (7th Cir. 2004). III. THE DUE PROCESS HEARING On June 3, 2015, a due process hearing was held before the IHO. Plaintiff represented herself at the hearing. She had failed to provide the required pre-hearing disclosures ordered by the IHO at a prehearing conference. At the hearing she also withdrew the list of witnesses she had previously provided to the IHO. At the hearing, the Board presented six witnesses all - 4 - of whom had participated in the evaluation of the Plaintiff and helped formulate documentation his IEP. relevant to development of his IEP. These Plaintiff’s witnesses produced evaluations and the The Plaintiff testified in her own behalf but presented no other witnesses, nor did she offer any documents into evidence. She did, however, conduct a cross- examination of the Board’s witnesses. Following the due process hearing the IHO found in favor of the Board on all contested issues, including a finding that the Board’s evaluations were conducted within the IDEA’s and Illinois’ 60 school day time line although the IEP itself was developed outside the 60-day timeline. The IHO found that the that the delay was due to Plaintiff’s failure to attend the scheduled meetings where the IEP was developed and the Board’s continuing effort to include Plaintiff in the development process. The specific factual findings made by the IHO upon which she relied to excuse the 60-day violation (with which Plaintiff apparently does not take issue, at least she did not do so at the due process hearing) included that the Board had made its evaluation and its determination of eligibility of plaintiff for an IEP within the 60-day deadline, but was not able to finalize the IEP by that due date. The IHO found that the delay in - 5 - completing the IEP was due to the Board’s effort to include the Plaintiff mother in the development of the IEP. The IHO then described the specific efforts the Board undertook to try to involve the Plaintiff in the development of her son’s IEP. This included a scheduling a meeting between the Board and Plaintiff to be held within the 60-day deadline, at which Plaintiff did not attend; meeting the with Board’s plaintiff multiple in attempts February and to in re-schedule March 2015; a and multiple written notices and telephone calls to Plaintiff urging her to attend the scheduled meetings; and finally Plaintiff’s failure to attend or at least acknowledge the invitations. In IHO’s her brief, the determination Board’s that unsuccessful only response the delay efforts to Plaintiff was makes excusable include due Plaintiff to the to the in the development of the IEP was to point out that the final IEP did not substantially Evaluation differ (“IEE”) from conducted in an Independent August 2014 at Education Plaintiff’s expense which was prior to his enrollment at his school. Her point was apparently unnecessary. was that the development of the IEP She also complains that the Board did not include a “safety plan” in the IEP, which she contends was necessitated by an incident that allegedly occurred in January 2015. the IHO pointed out in her decision - 6 - that Plaintiff However did not present any evidence to support a finding that the Plaintiff’s disabilities required a safety plan. Plaintiff withdrew witnesses who she claimed could support such a finding and did not herself testify about any such concerns she may have had. Therefore the record did not support her contention that a safety plan was necessary. The District, Supreme 550 enforceable Court U.S. rights in 516, in the Winkelman held that v. Parma parents entitlement public education for their children. of a City School have independent free appropriate The statutory basis for this right is found in Section 1414(b)(1) which gives parents of a child the right to examine all records and to participate in all meetings with respect to the development of an IEP. This amounts to a statutory mandate that the parents be given the opportunity development to of be an consulted IEP. It and would to be participate inconsistent in the with this statutory mandate to penalize the Board because it was unable to complete the IEP within the 60-day deadline because it went out of its way to include the Plaintiff in the development of her child’s IEP. The IHO’s decision that the delay was excusable is supported by a preponderance of the evidence and the plaintiff’s motion for summary judgment is denied. - 7 - One final note. only on one appeal. of the The Plaintiff moved for summary judgment several grounds upon which she The Board did not file a Cross-Motion. took an Normally a court would only issue a decision limited to what is requested in a Motion. proceeding that However is in limited a to review the of an administrative administrative record as supplemented there appears to be no reason not to issue a final judgment disposing of the case. Here the Plaintiff takes issue only with one of many findings of the IHO: the IEP. the timeliness of The Plaintiff did not offer any evidence at the due process hearing (other than her own testimony) and she did not raise objections to any other part of the IHO’s decision. IV. CONCLUSION Since the record supports all parts of the decision, the Court denies the Plaintiff’s Motion for Summary Judgment, and enters judgment in favor of the Board sui sponte. IT IS SO ORDERED. Harry D. Leinenweber, Judge United States District Court Dated: June 13, 2017 - 8 -