About Illinois Due Process .Org
This site is dedicated to helping children with disabilities obtain an
appropriate education. The laws supporting every child's right to an
are complicated. There are many fine sites which explain the basic laws
and regulations for children with disabilities, and you may find links
to them below. The purpose of this site is to provide a central
where you may obtain copies of actual due process decisions entered
the laws of the State of Illinois. These written decisions are entered
by Independent Hearing Officers who decide special education disputes
students, parents and school districts. The Illinois State Board of
maintains copies of all these decisions, and you may obtain copies of
by calling at (217) 782-5589. The ISBE website contains a
list and short summary of these decisions. (See note
following here.) These decisions are not published regularly as
decisions of other courts. To aid the use of these decisions, we are in
the process of posting copies of the opinions here. We have also
other harder-to-find materials in our list, such as some decisions of
United States District Courts. Decisions of the United States Courts of
Appeals for the last few years are available for free using LexisOne.com
What is Due Process?
of the Constitution of the United States of America
person shall be ...
deprived of life, liberty, or property, without due process of law.
Amendment XIV of
the Constitution of the United States of America
Section. 1. All persons born or naturalized
in the United
States and subject to the jurisdiction thereof, are citizens of the
States and of the State wherein they reside. No State shall make or
any law which shall abridge the privileges or immunities of citizens of
the United States; nor shall any State deprive any person of life,
or property, without due process of law; nor deny to any person within
its jurisdiction the equal protection of the laws.
Constitution of the State of
Illinois of 1970
Art.1, Sec. 2. Due Process and Equal
person shall be deprived of life, liberty or property without due
of law nor be denied the equal protection of the laws.
January 8, 2008:
We are moving the web host of this website, and migrating
files to the new server.
While we test the site, some files may be temporarily
This site is still under construction.
We will be phasing the number of opinions and capabilities
Thank you for your patience.
||Some of the opinions posted here during the first stage of
of this site are in the Tagged Image Format (.tif) (fax quality).
If your browser does not have a plug-in for .tif, you can download the
case file and view in your imaging application
Macintosh users may use GraphicsConverter. Files with the PDF format
be read with the free Acrobat Reader. Occasionally there may be a file
in a Microsoft Word Format.
|| If you have a decision that should be included on this
please email us at for instructions.
|Report to us
|| To report a new decision or settlement to the Special
Round Table, click Report.
||Do not rely upon the information on this page as legal
consult an attorney if you have any questions. The law is
changing, and your circumstances may be diferent.
The Regulations of the Illinois State Board of Education are
being revised. Many of the decisions discussed below involved
before the 1997 and 2004 amendments, and the outcomes could be
after the 2004 amendments to IDEA
Links to other Disabilities and Special
Searchable ISBE summaries of Due Process
The ISBE summarizes the opinions from July1997, through October 2004 in
several separate .pdf files. Here is a link to a html file which
combines the summaries into one file. This combination allows you
to search all the summaries at once instead of repeating the same
in all seven files.
After a gap of 18 months, the summaries started as of April 2006. ILDPSummary2006.html
34 CFR 300.510 (c) (2). (c) Findings and decision to
advisory panel and general public. The
SEA, after deleting any personally identifiable
(2) Make those findings and
available to the
Freedom of Information Act. (FOIA)
The Illinois Freedom of Information Act is codified at 5
140/ sections 1 through 11. http://www.legis.state.il.us/legislation/ilcs/ch5/ch5act140.htm
You can use a FOIA request to obtain information from
any public entity in Illinois. Some information is excluded if it
is private. In Bowie v. Evanston Community
School Dist. No. 65, (1989) the Illinois Supreme Court ruled that
cannot refuse to supply the information just by saying it concerns
information; they must comply with requests if they can redact out the
personal and private information. In that case, the parents of
attending that district's schools sought the disclosure of standardized
test scores for students and a list of educational programs available
those schools. The school district was required to disclose record of
test scores under the FOIA in a masked and scrambled format.
For a complete discussion and analysis of the Act, see
the Attorney General memo:
Questions and Answers on Serving Children with Disabilities
Eligible for Transportation
Office of Special Education and Rehabilitative Services (OSERS) in the
U.S. Department of Education prepared a series of question and answers
explaining its current thinking on the regulations controlling
transportation for special education students.
Transportation is a related service as defined by 34 CFR
§300.34(c)(16) of the IDEA regulations and can include travel to
and from school and between schools; travel in and around school
buildings; and specialized equipment such as special or adapted buses,
lifts, and ramps. A child’s individualized education program (IEP) Team
is responsible for determining both if transportation is required to
assist a child with a disability to benefit from special education and
related services, and how the transportation services should be
(html, 32 KB) evaluates access
and fairness of Due Process system in Illinois.
Access.pdf (pdf, 215 KB)
The results of Dr. Melanie Archer's analysis were startling.
These preliminary statistics have caused considerable concern with
to both the adequacy of the due process system in identifying and
parent concerns, the fairness of the due process system, and the
impact on the success of parents when they do not have access to
- Overall, school districts have prevailed in over two out of three
education due process hearings in the time period 1997 to 2002
- In the last 1 1/2; years, the school districts have been
prevailing at due process hearings, with the school districts
in more than 72 percentage of cases in 2001
- Almost half of the hearing officers decided in favor of the
in excess of 80% of their decisions
- During the 1997 to 2002 time period, parents were successful in
of the cases when they were represented by an attorney, but only
in 16.8 percent when unrepresented by an attorney.
Damages for harassment
Excellent article: Mark Weber, a Professor of Law at dePaul
has written a law review article:
Disability Harassment in the Public Schools, William and
Mary Law Review, vol. 43, no. 3, Feb 2002.
The article explains the need for antiharassment laws in our
public schools, the current legal environment, and the need for courts
to enforce current laws against schools and granting damages to
for actual harm caused by harassment. Please check your local law
library for a copy, use Lexis or Westlaw, or contact William
and Mary Law School for a copy.
Retaliation. In Jenkins
v. Rock Hill Local School District and Lloyd Evans(.pdf) the 6th
Circuit Court of Appeals held that a parent could sue the school
district when it retaliated against her daughter who had diabetes. The
school inhibited her First Amendment rights when she complained about
the principal expelling the student because she had diabetes.
memo on harassment
Peters v. Rome City School District
New York Case affirming jury verdict imposing $75,000
damages where the time-out room was unfurnished and had padding on the
walls, door and floor. Although defendant notified plaintiff each time
Christopher was placed in the time-out room, plaintiff did not observe
the room until March 22, 1993, and she testified at trial that it
ventilation and had an odor of "dirty feet [and] urine," and she
the padding on the floor as ripped and dirty. Defendant's expert
at trial that there was nothing inappropriate about the room. It is
that Christopher was not permitted to leave the time-out room until he
had remained seated in an upright position without moving for three
minutes; that on at least one occasion Christopher fell asleep in the
and that there were occasions when Christopher was confined to the room
for periods in excess of one hour.
Eason v. Clark County School District (the Witte case)
Shawn Witte and Derrick Eason appeal the dismissal of
their actions alleging severe abuse and excessive corporal
punishment inflicted by educators at Variety School,
a public school attended exclusively by students with disabilities, in
Nevada's Clark County School District. Shawn and Derrick
sued the District and individual District personnel for violations of
constitutional rights to substantive due process and equal protection
under section 1983, the Rehabilitation Act, the Americans with
and state law. In both cases, the district court held that all
were entitled to Eleventh Amendment immunity, dismissed all claims and
taxed costs against Shawn and Derrick. We reverse the dismissal of the
section 1983 and state law claims against all defendants, as well as
ADA and Rehabilitation Act claims against the District, because the
County School District is not an "arm of the state" and therefore does
not enjoy Eleventh Amendment immunity.
Allowing a lawsuit to proceed by denying a motion to dismiss, the U.S.
District Court for the District of Connecticut permitted the mother of
a special education student who committed suicide to press her claims
a school's failure to deal with the persistent bullying and harassment
of her son constituted a violation of constitutional due process equal
protection provisions, as well as intentional discrimination under the
Rehabilitation Act and the Americans with Disabilities Act, and
by a tacit agreement.
Scruggs v. Meriden Board of Education (District of
August 22, 2005),
Also of interest is K.M. v. Hyde
Park Cent. Sch. Dist., 2005 WL
(Aug. 11, 2005), which upholds claims against both the school district
and individual defendants for pervasive and severe harassment.
the Alito nomination, his opinion regarding harassment undermining FAPE
Reg'l High Sch. Bd. of Educ. v. P.S., 381 F.3d 194 (3d Cir.
2004) is of more interest.
List of Decisions
(to be organized later)
Board of Education of
205 v. Daniel M. v. Gotha (Sept. 5, 2006) (177KB, pdf)
stated a cause of action against the Special Education administrator
section 1983 for denying legal rights when she obstructed the
of a proper IEP. The issue of damages was postponed until the
Circuit decides the Malone case.
DW v. Grayslake Comm Cons School District #46
(August 2002) (html, 86Kb)
After 12 days of due process hearing, the IHO ruled
the child's parents properly made a unilateral placement at
School which is a residential school in Kansas that works primarily
children with autism who have intense behavioral needs. He
ordered the district to reimburse the parents for expenses
with the placement and for the district to contract with the
The standard under Burlington had been met. The
proposed placement was ruled to be inappropriate as the curriculum and
design of the program did not represent FAPE for this child's needs.
The IHO further ruled that the
failed to exercise its supervisory duties when the child was at a
therapeutic day school. The program failed to address his
needs and the district failed to act when it knew that the child's
were not being met. It was ordered that the child receive 9
months of eligibility for the 9 months he did not receive a FAPE in
program. Additional remedies included cash reimbursement for
for programming and services that the parents incurred that the
should have paid.
Overriding the Non-Consent for Placement
Are Illinois Hearing officers giving schools powers not allowed by the
Case #002011 -- Marie Bracki, Hearing Officer
Consent for initial special education placement
The district requested the due process hearing to
the parent's non-consent for initial placement of the student. A second
evaluation was conducted changing the student’s eligibility from
impairment" to "learning disability" The parent still refused consent,
refused to participate in the hearing, and intended to place the child
in a private school. The district filed a Motion for Summary Judgment.
The district was ordered to implement its IEP. The district was
by counsel. The parent did not participate and was not represented.
However, the following gives a contrary
of the law:
Other Illinois opinions demonstrate that school districts often file
This Federal Office of Special Education Programs
letter states that IDEA does not permit school districts to initiate a
due process hearing to override a parent's refusal to consent to a
A link to a unverified text version of this document
is included here since it was posted here before it was posted on the
website. [site as: Federal Register: February 22, 2002 (Volume 67,
36) Page 8445-8447.]
Note that any party may initiate due process
evaluation-- See http://www.ed.gov/offices/OSERS/OSEP/Policy/2q2001pl/redact041601eval-2q2001.pdf
1997 OCR Letter to Durheim:
"OCR has determined, through policy clarification,
the Section 504 regulation, as referenced in your November 20, 1997,
requires parental consent prior to the conduct of initial student
procedures for the identification, diagnosis, and prescription of
educational services. Parental discretion in matters involving student
assessment/evaluation is an inherent part of the regulation and
discretion is an appropriate and necessary policy component at the
evaluation phase. Subsequent student evaluations, however, are not
to parental consent."
More OSEP guidance on consent:
[* Letter dated March 20, 2003 to Vermont Department
Education Legal Counsel Geoffrey A. Yudien,
(1) that a
school district may not override parental consent for
provision of special education and related services,
(2) that a school
district is not required to obtain separate
additional services that the individualized
deems necessary or for a continuation of services
the parent has
previously consented to the initial provision of
and (3) that
the protections under the IDEA, including the
34 CFR 300.520-300.529, would not apply to children
refused consent for the initial provision of special
[*] Letter dated February 11,
to New Jersey Director of
Special Education Barbara Gantwerk, clarifying (1)
ways in which
school districts can document efforts to obtain
the initial provision of special education and
reevaluations, and (2) that school districts are not
provide the Part B discipline protections to children
who are not
receiving special education because their parents
Case # 002209 -- James Wolter, Hearing Officer
Regular Education vs. Special Education Placement
The district requested the hearing in order to place
the student in a self contained special education program housed in his
neighborhood school without parental consent. The parents
the student to remain in the regular education placement. At the time
the hearing, the student was 8 years old entering the 3 rd grade and
speech therapy and counseling. The hearing officer found that the
had conducted an appropriate IEP conference and developed an IEP that
reasonably calculated to provide benefit to the student. The placement
recommended by the district was affirmed. The district was represented
by legal counsel; the parent was not represented.
Case #002789 - Charles Aschenbrenner, Hearing Officer
Note that the parents must file for due process to revoke
Consent for Initial Placement in Special Education
ISBE Synopsis: The District requested the
process hearing seeking an order to compel placement in special
without parental consent. A previous hearing was held to compel
to conduct a case study evaluation. The District's request to conduct
evaluation was granted. The hearing officer found the student eligible
for special education under the category of learning and behavioral
However, the parent refused to provide consent for placement in special
education. At the time of this hearing, the student was nine years old
and enrolled in a third grade classroom. The District was seeking an
to place the student in a therapeutic day school. The hearing officer
that the preponderance of the evidence showed that the student's
needs could best be met in a BD self-contained special education
The District was represented by legal counsel; the parent was not
Case #002953 - James A. Wolter, Hearing Officer
Least Restrictive Environment, Initial Consent for
ISBE Synopsis: The district requested the
to compel placement of the student in a full-day special education
kindergarten placement. At the prehearing conference call the parent
the hearing officer that there would be no need to proceed with the due
process hearing because she had given the district written
to place the student in a special education kindergarten program and to
review the student's progress every three months. The district agreed
the parent and made a motion for a directed summary judgment. The
was granted. The district was ordered to provide the student with a
regular education program and half-day special education kindergarten
commencing the 2002-03 school year. The district was represented by
counsel; the parent was not represented.
Case #002542 - Judge Quinn Dempsey, Hearing Officer
Appropriate Placement, Termination of Services,
The parent requested the hearing because they wanted
the student returned to general education. Pursuant to 23 IAC
and (i) a parent who desires to revoke consent must request a due
hearing; the mother did so in this instance. During the 2001-02 school
year, the student was enrolled in a language arts/reading pull-out
for students with learning disabilities. It was the hearing officer's
that the psychological evaluation, which consisted of two pages, was
to support placement in special education. The hearing officer ordered
the student be removed from all special education services and placed
a standard 7th grade curriculum. The both parties were represented by
Attorneys Fees cases
New Article: Buckhannon, Special Education Disputes, and Attorneys’
Fees: Time for a Congressional Response Again
This note examines the impact of Buckhannon on IDEA litigation,
arguing that Buckhannon undermines the role of the IDEA fee-shifting
in the enforcement of the IDEA. Under the Buckhannon regime,
risk incurring attorneys’ fees far in excess of the value of their
even if they ultimately obtain all of the relief they originally
Inevitably, parents will bring fewer claims, however meritorious, and
children will be denied the opportunity for FAPE. In time, fewer
children will mature into self-sufficient, independent adults—an
and societal harm that Congress intended the IDEA to remedy.
Jessica P decision.pdf
(176 KB) Judge Manning granting summary judgment in an attorney fee
CPS opposed the claim asserting that fees should bereduced or even
based on a pre-hearing offer of settlement, and that the hours claimed
were unreasonable. Judge Manning rejected all CPS claims, and
the full $97,101.25 claimed by the parent.
Jessica P 2nd decision.pdf
IT IS HEREBY ORDERED that the school district shall
an IEP meeting using the summer assessment team no later than July 25,
2005 and, utilizing the Parent's independent evaluations conducted by
Evanston Northwestern Hospital Clinic on December 2, 2004 and Mr.
Brady on April 20, 2005, determine if the Student has a specific
disability. If necessary, the Student's October 15, 2005 IEP shall be
to provide special education and related services appropriate to that
TD.pdf (52Kb) (Sept. 26, 2002)
IT IS FURTHER ORDERED that the Student's IEP shall be
revised to include a behavior intervention plan that contains
stated and measurable interventions and is reasonably calculated to
behaviors related to the Student's emotional disturbance disability and
learning disability, if determined and deemed necessary. As the record
contains significant data regarding the Student's school and classroom
activities in the 2004-05 school year, the decision of whether to
a new functional analysis is left to the IEP team, in consultation with
appropriate staff and the Parent.
IT IS FURTHER ORDERED that the District is to
all reasonable efforts to locate and provide to Parent or her attorney
the social work progress notes from the 2004-05 school year and any
communications regarding the Student by July 25, 2005. If necessary,
District shall have its information technology staff develop e-mail
instructions and disseminate the same to applicable District and
IT IS FURTHER ORDERED that the District shall offer
Student compensatory services in the form of the tutoring/mentoring
recommended by Dr. Terry Smith and set forth in the hearing testimony
exhibits. The tutor/mentoring program shall be provided to the Student
for period of two years beginning no later than August 1, 2005 unless a
later date is mutually agreed upon by the parties, and at a total cost
not to exceed $24,000 (twenty four thousand and ‰ dollars), the full
to be borne by the District. The tutoring/mentoring, program shall be
addition to any other compensatory services the IEP team deems
and appropriate, including but not limited to a collaborative team
model for all academic core subjects and extended year services.
Northern District of Illinois. Parents are
parties even if they make a favorable settlement prior to winning a
The court distinguished cases arising under other statutes since IDEA
allows fees when the parties settle. The court also awarded costs
which include the Parent's expert witness fee. (Reversed on
02-3928 T.D. v. LaGrange School 102, argued May 20, 2003.)
District Court ordered payment of attorneys to
as prevailing parties to a settlement agreeement.
District Court did not order payment of attorneys to
parents as prevailing parties to a settlement agreeement.
Joshua.pdf (358K, 12 pages) 2000-C-0340
District Court denied fees where DP order was not
better than school district offer made ten days prior to hearing.
Erik A. v. Bd Ed City of Chicago
U.S. District Court orders payment of 75% fee based on partial success.
Illinois Attorney General Opinion stating parents
home school a child with disabilities.
v. Palatine .doc District Court Opinion (MS Word format)
TH v. Palatine , html level II due process
TH v. Palatine , html, level I due process
The parents of a child with autism requested the
of Human Services provide ABA. The department agreed to provide 30
per week, but the IHO determined it violated the IDEA by splitting
of the hours 18 specified in the IFSP to be given by a department
and 12 by the mother. At the direction of the Department, the parents
over $2,000 on training and the mother took on the role of
therapist" for her son. She also provided support and training to the
funded therapists because they were unfamiliar with ABA therapy. The
markedly improved while receiving the therapy, and the parents
reimbursement for the costs of training. The department refused,
the expenses were not approved, and while it might pay for approved
it did not reimburse parents for their direct expenses. The IHO
the department's position. He determined the mother acted "well beyond
the parental role contemplated by the IDEA."
The "inadequacy" of the IFSP required the mother
the gap and it was unreasonable for the department to expect an
high school educated mother" to provide ABA therapy without training,
IHO concluded. Because the department's IFSP team determined the child
needed 30 hours of ABA therapy, it was obligated to provide it. The
to include all 30 hours in the IFSP amounted to a reduction not linked
to the child's unique needs and therefore violated the IDEA. The IHO
the department to reimburse the parents. deMora cited.
Bd of Ed of Paxton-Buckley-Loda School
District # 10 v. Jeff S.
School violated procedural safeguards, failed to
least restrictive environment, failed to consider an appropriate
Private school reimbursement ordered. The District violated
safeguards when it simply chose not to consider a methodology
would allow a regular preschool program in determining placement
(974 Kb, 28 pages)
ISBE2274.htm (scanned OCR, 86
Case # 002274- Charles L. Aschenbrenner, Hearing
JohnM.pdf (688k, 23 pages)
The District did not comply with procedural aspects
IEP, which was inadequate. HO ordered placement in a
school for an Aspergers/BD/ED child.
Case # 2001-C-1063 (06/18/2002)
Judge Guzman orders compensatory OT for Downs Child where
- School's OT
had not fully reached her certificate and hearing officer failed to
importance of OT deficits and lack of progress there.
violations glossed over.
- Reimbursement of Independent evaluation.
- Parents were prevailing parties for fees.
Seventh Circuit uses strict interpretation of Stay Put
The stay put in John M was
appealed to the Seventh Circuit which ruled:
In enacting the
stay-put provision, Congress intended
"to strip schools of the unilateral authority they had traditionally
employed to exclude disabled students . . . from school." ...A child's
interim educational regime must produce as closely as possible the
overall educational experience enjoyed by the child under his previous
Circuit Appeal on Stay Put (123 KB) (2007)
To achieve that result, we must recognize that educational
methodologies, appropriate and even necessary in one educational
environment, are not always effective in another time and place
in serving a child's continuing educational needs and goals.
Nevertheless, when asked to approve an alteration in educational
methodology in a stay-put order, we must give careful attention to the
purpose of the stay-put provision. The recognized and defined special
needs of the child and the educational goals originally set by the
parents and by professional educators must be respected. Protestations
that educational methodologies proven to be helpful to the child in the
past are now impossible must be evaluated with a critical eye to ensure
that motivations other than those compatible with the statute, such as
bureaucratic inertia, are not driving the decision.
see also OY
v. CPS, stay put order(178 kb)
JL v. Oswego Unit School District (342K 12
Case #2000-C-1803 (060/07/2001) case of sexual
by busdriver is not educational and is independent of IDEA, thus can be
brought as separate lawsuit, citing Charlie F. (7th Cir 1996). District
argued its corrective actions could have been addressed in the IDEA,
the court looked to the nature of the action Plainitff argued
response showed deliberate indifference to his plight.
Doe v. Chicago Board of Education.
339 Ill. App. 3d 848 (2003)
This case presents question as to whether trial
plaintiff's willful and wanton negligence action
plaintiff-special education student incurred injuries
assault committed by fellow student on school bus?
reversing trial ct., found that plaintiff adequately
stated cause of
action, and that defendant was not entitled to
4-102 of Local Governmental and Governmental
Tort Immunity Act
since plaintiff pleaded knowledge on part of
that attacker was
likely to commit sexual assault and that attendant
required on bus.
The Illinois supreme court affirmed, holding that tort did not apply to
the school district.
Although the complaint does contain allegations that the Board failed
to prevent a
sexual assault, it also contains allegations implicating willful and
based on allowing the bus to operate without supervision, knowing that
perpetrator was not to be left unsupervised among other children. 213
Ill. 2d 19 (2004)
Hernandez v. Board of Education
of City of Chicago (18 pages)
Case #2001-C-0097 (05/04/2001) Court ordered Board to
provide interim services during pendancy of case. Student had
denied services. Additional evidence to be admitted during
Court review of DP.
ISBE3851.htm : (Jessica P.
v. Chicago Public Schools) ISBE3851.doc
There are sufficient facts in the record
that the school district had knowledge that the student might be
for special education before the occurrence of the two incidents which
resulting in attempts to expel the student. In light of the
it is clear that the school district had a burden to offer the
safeguards of IDEA to the mother of the student when it suspended the
in excess of ten days and when it twice attempted to expel the
Those procedural safeguards included but were not limited to a
determination "as if" the student had been a special education student.
34 CFR §300.541 Failure to afford this student the
to which she was entitled under IDEA renders the expulsions and
in excess of ten days null and void.
It is clear from the record that the school district
did not conduct an adequate assessment of the student's levels of
or her academic performance
In light of the school district's failure to initiate
a case study evaluation until March 2004 and its failure to adequately
assess the student's level of cognition or academic performance as part
of the evaluation, there was no way that the IEP team could fashion an
Individualized Education Plan which might provide educational benefit
Compensatory services ordered among other relief.
Egregious School District Behaviour
(3436 KB, 18 pages) School superintendent lied under
oath about treatment a disabled child was receiving in his
School created a hostile and harassing environment which caused
discipline problems. Student attempted to flee school and was
near death. School's request for therapeutic day school
School ordered to include child and to implement supports and staff
to make inclusion work.
The simple fact that a student is advancing from grade
to grade is not per se evidence of an appropriate education
This OSEP Policy letter from 1995 explains:
- SLD Evaluation Team May Consider Extra
in Determining Educational Achievement
- In determining a child's current level of
for purposes of specific learning disability (SLD) identification, it
generally be appropriate to consider information about outside or extra
learning support provided to the child when determining whether a child
who receives satisfactory grades is nevertheless not achieving at
Such information may indicate that a child's current educational
reflects the service augmentation, not what the child's achievement
be without such help.
- Children With High I.Q.'s Not Excluded From
- There is no categorical exclusion for
IQs in Part B; therefore, if a student with a high I.Q. is not
at his expected performance standard for reasons other than those
in 34 CFR 300.541(b), (the criteria for determining the existence of a
specific learning disability (SLD)), and otherwise meets the criteria
that disability in accordance with that provision, the child can
be identified within the meaning of that disability. Each child who is
evaluated for a suspected learning disability must be measured against
his own expected performance, and not against some arbitrary general
- SLD Evaluation Must Include Testing of All
Listed in 34 CFR 300.541(a)(2)
None of the seven areas listed in 34 CFR
the Part B regulation which establishes the criteria for determining
existence of a specific learning disability (SLD), can be categorically
excluded from a multidisciplinary team's evaluation to determine
a child has a SLD. To the contrary, each of these areas must be taken
consideration, and a state policy which requires otherwise may be
"Participation by a student with a
disability in an accelerated class
or program generally would be considered part of the regular education
or the regular classes referenced in the Section 504 and the IDEA
regulations. Thus, if a qualified student with a disability
related aids and services to participate in a regular education class
or program, then a school cannot deny that student the needed related
aids and services in an accelerated class or program. For
a student’s IEP or plan under Section 504 provides for Braille
materials in order to participate in the regular education program and
she enrolls in an accelerated or advanced history class, then she also
must receive Braille materials for that class. The same would be
for other needed related aids and services such as extended time on
tests or the use of a computer to take notes.
Conditioning enrollment in an
advanced class or program on the
forfeiture of needed special education or related aids and services is
also inconsistent with the principle of individualized determinations,
which is a key procedural aspect of the IDEA, Section 504 and
Title II. As noted above, under Section 504, the provision of
based on the student’s individual education needs as determined through
specific procedures--generally, an evaluation in accordance with
Section 504 requirements. 34 CFR 104.35. An individualized
determination may result in a decision that a qualified student with a
disability requires related aids and services for some or all of his
regular education classes or his program. Likewise, the IDEA
contains specific procedures for evaluations and for the development of
IEPs that require individualized determinations. See 34 CFR
through 300.328. The requirement for individualized
violated when schools ignore the student’s individual needs and automatically
deny a qualified student with a disability needed related aids and
services in an accelerated class or program. "
This theme is reflected in Kent T. v. Elmhurst Community School
#205 (N.D. Ill. 2002) http://www.wrightslaw.com/law/caselaw/2002/IL.kevint.elmhurst.pdf
"a child's capicity to learn must also be considered when
an IEP," and citing Bd of Ed Oak Park River Forest #200 (N.D.
) 21 F. Supp at 877: "the district failed to institute a 'systematic
comprehensive plan to deal with [the student's] reading difficulties,'
and that '[s]uch a failure was manifested ... by the absence of any
or objectives that specifically addresses these reading deficits.'"
See also Mary P.v. ISBE, (html) (U.S.
Dist Ct, N.D. Ill. 1996):
Thus, the Court noted that the simple fact that a student is advancing
from grade to grade is not per se evidence of an appropriate education.
It did not hold that the student was ineligible for services because
was achieving academically; rather, the Court simply deferred to the
factual determination made by the school in light of the student's
progress with the assistance she was already receiving
Zachery v. Monticello Community School District No. 25, ISBE
Asperger child was entitled to an IEP even though he met academic
level, but lacked social skills.
School must use some
Frank H v. CPS, 2007 - 0182
"As to the district’s argument that methodology is left to the
district's discretion, Lachman holds that when a proposed IEP
upon an accepted, proven methodology," a parent does not have the right
to compel a district to provide a different methodology that the parent
considers more appropriate. Lachman, 852 F. 2d 290 (7th Cir.
The September 12th IEP does not identify any methodology – let alone an
accepted and proven methodology - for teaching this student to read,
is precisely the parent's objection: the IEP does not meet the
needs because it provides no methodology to remediate his dyslexia and
therefore puts him at substantial risk for further academic failure."
Petrina v. CPS Feb. 4, 2008.(scanned pdf,
32 pages, 2.87 MB)
no systematic research-based methodology and questionable content for
teaching a student to read. No phonics or other methodology, no
goals tailored to meet her individual needs.
Petties v. District of
School District must supply the services listed in IEP.
Ash v. Lake Oswego School District
(9th Cir. 1992)
Letter to Zirkel (OCR 1993)
The standard of services is not "reasonable accommodation" or other
IDEA requires complete FAPE (Free, Appropriate Public Education).
Eric A. v. Chicago Public Schools,
A district is entitled to establish its own
and instructional techniques as long as they successfully meet
needs, providing FAPE. If the district does not develop and/or
an IEP that provides the student with FAPE, parents may request that
district pay for private instruction and/or related services in order
provide FAPE, or they may request compensatory education. Florence
School Dist. v. Carter, 510 U.S. 374 (1993); Burlington School
v. Massachusetts Dept. of Educ., 471 U.S. 374 (1985). While the IEP
be provided in the least restrictive environment "to the maximum extent
appropriate," the law also allows removal to more restrictive
as necessitated by the nature and severity of the child’s disability.
ILCS 5/14-8.02(d) (2002) While the District’s curriculum and techniques
must provide "educational benefit," that requirement is not the
of providing the "most" beneficial possible services or requiring that
the student achieve his highest potential. Board of Educ. of
Community Unit School Dist. No. 186 v. Ill. St. Bd. of Educ., 41 F.3d
1167 (7th Cir. 1994), citing, Board of Educ. of Sch. Dist. No. 21 v.
St. Bd. of Educ., 938 F.2d 712, 715 (7th Cir. 1991), cert. denied, --
--, 112 S. Ct. 957, 117 L.Ed.2d 124 (1992).
Jason S. v. Chicago Public Schools, ISBE 4526
In light of the Parent's experience with
District, which delegated her many attempts to get help from the
level down through the bureaucracy with no relief ever ensuing, she is
right to have no faith that CPS will provide FAPE for her son.
Jason A. Chciago Public Schools, ISBE 4331 (2005)
Thus it is ordered:
1. That District pay for placement in a private
2. That District pay for cognitive, psychosocial,
and assistive technology assessments either administered by the
day school or by independent evaluators .
However, the last agreed upon IEP placed the student
in a blended pre-K classroom and staff attested to the fact that he had
made progress in that setting. One of the parent’s witnesses was
at how well the child behaved in her office for the evaluation and was
amazed at the progress he had made. The fact that the District does not
have a full-day blended kindergarten class at this time does not change
the process for determining what a specific student requires. In a
classroom, this student would have access to non-disabled peers. This
a critical time for language development and social interaction. The
should maximize his exposure. The ISBE Memorandum dated April 10, 2003
supports this finding. Further, the Seventh Circuit Court of Appeals
upheld the doctrine that progress is a key consideration in determining
the appropriateness of a least restrictive environment. This is noted
two recent Illinois cases, namely Beth B v Lake Bluff SD and Kevin B v
Michael S. v. CPS,
ISBE 2007-007 (2007) (130 KB)
While the team's strategy of lowering the bar of
ensures that Michael will pass his courses at Steinmetz, it falls far
of Rowley’s requirement that the IEP confer some educational benefit on
the student. It cannot credibly be argued that Michael was making
at the same time he was regressing. In short, the evidence confirms
the District denied Michael a FAPE because it failed to provide him
an appropriate IEP that enabled him to receive some educational benefit.
In JB, IHO Alan Cook ordered residential placement at
CPS expense for a 14 year old girl who has been on runaway status or
hospitalized for about 18 months. He also accepted a
that, as a compensatory service, CPS pay for monthly visits by the
guardian. ISBE 2007-0175 (pdf scan
"The IEP should respond to the needs and disabilities attributable
the student at the time the IEP is developed. If residential
is appropriate, it should be given to the student. It is not
to first go through unsuccessful placements in regular education
day school programs."
By contrast, in ISBE case number 2008-0211
the parent argued that it makes no difference whether the student
exhibited aggressive behavior in school or only at home. The parent
contends that if the student required a residential placement because
of aggressive behavior at home, the district has the responsibility for
providing the student with a free appropriate public education and
therefore responsible for providing the student with a residential
placement Independent School Dist. No.
284 F 3d 769, 77 (8th Cir 2001). The district countered that
educational needs for residential placement and non-educational needs
for residential placement are distinguishable and relevant in
determining whether the district is required to provide a student with
a residential placement Dale M. v.
Bd. Of Ed. Of Bradley-Bourbonnas High School Dist.No. 307, 237
F.3d 813, 817 (7th Cir. 2001).
Assessment and Independent Evaluation
In FS, IHO
Schwartz ordered an IEE to assess LD issues
for a 10 yr old with severe EBD. This is a preliminary
The case remained open for issue of placement following the evaluation.
ISBE 2007-0182 (30 KB). The final
opinion is listed above (Frank).
"Although all the student's IEPs have
consistently noted reading
and consistently indicate that the student is reading below grade
the district has never provided a learning disability or reading
for the student. There has been no investigation as to whether the
documented reading deficiencies or a learning disability have an impact
on his behavioral problems. This hearing officer cannot determine
there are services to which the student may be entitled without such an
Board of Ed of Ottawa Township v. U.S.
Two Illinois school districts have sued the U.S. Department of
claiming that some of the accountability measures of the No Child Left
Behind Act should be invalidated because they are in direct conflict
the Individuals with Disabilities Education Act.
The responsive pleadings give a great explanation of the NCLB.
The U.S. District Court dismissed the complaint, stating that the
failed to state an injury. The school districts refiled, alleging
that if they taught the children reading and writing to pass the NCLB,
they would decrease the instruction in the functional curriculum of
and daily living skills, and a child might lose self-esteem in taking
courses. The U.S. has moved to dismiss the second complaint as
U.S. Dept Ed motion to dismiss, and response
State of Illinois motion to dismiss, the response and the reply:
order dismissing first complaint
motion to dismiss amended
Judgment dismissing complaint (March
31, 2007, 46 KB)
Appellate decision affirming dismissal
(Feb 11, 2008, .pdf 85 KB)
Dist. Ct. erred in finding that
plaintiffs-school districts lacked standing to bring action seeking
declaration that requirements of No Child Left Behind Act were
subordinate to requirements set forth in Individuals with Disabilities
Education Act (IDEA) where basis for Dist. Ct.'s ruling was observation
that plaintiffs could resolve any conflicts by simply turning down
federal money awarded under said statutes and thereby escape any
conflicting obligations. Plaintiffs had standing to bring instant
action since condition on federal grants can cause concrete injury that
would establish standing requirement even if said condition could be
avoided by turning down money. However, remand was not necessary since
plaintiffs' lawsuit was not meritorious since requirements of IDEA,
which had been enacted prior to No Child Left Behind Act, were
subordinate to No Child Left Behind Act.
Is the implication that the NCLB would trump any provision of of IDEA
which conflicted with it?
FC v. Palmyra Board of Education (New Jersery Admin
on Section 504)
- Goals and objectives
- Parents' transportation costs
"Petitioner F.C., who is fifteen years old, is a qualified handicapped
person under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.
because he has Attention Deficit Hyperactivity Disorder ("ADHD").
alleges that respondent has failed to develop and implement a Section
accommodation plan which adequately addresses both his academic and
needs. Pursuant to Section 504 and its implementing regulation, 34 CFR
104.1 to 104.61, petitioner initially sought a Section 504 plan which
specific goals and objectives in the areas of self-image and
and one to one instruction in written language during the school day.
also sought a Section 504 evaluation, as well as a change in case
and Section 504 compliance officer. "
and from the end, the HO's decision...
"Since respondent's Section 504 accommodation plan for petitioner was
seriously deficient, despite the good faith efforts of petitioner's
to obtain an appropriate program for him, the parents were entitled to
seek an alternative private placement. Doing their best to locate an
program and placement, they enrolled petitioner in a day placement at
Hill Top Preparatory School. The credible evidence in the record
that petitioner is receiving an adequate education at Hill Top. Thus, I
CONCLUDE that petitioner's parents are entitled to reimbursement for
cost of his private placement and transportation expenses. This
should be for the period from his enrollment at High Top Preparatory
to the present, and should continue so long as respondent fails to
petitioner a free appropriate public education, pursuant to Section 504
of the Rehabilitation Act of 1973 and 34 CFR 104.33.
ISBE5104 Chelsea B. vs. Bd
of Ed of City of Chicago #299
It is the finding of this due process hearing that
district provided the student with an appropriate education from
2005 to the present. However, the district had cause to know the
required a case study evaluation in September 2004 when she reenrolled
in her school of origin. As stated above, there is no justification to
order the district to place the student in a more restrictive setting.
However, ordering the district to provide the student with after school
tutoring to compensate for the special education service she did not
ISBE4498 Sarah N. v. Yorkwood Community Unit Sch
An order directing the district shall provide the
with after school tutoring is warranted
(pdf, 471 KB)
Student not eligible for special education as her
did not adversely effect her academic performance and thus did not meet
"other health impairment."
ISBE4990 Octavia B. v. Bd Ed City of Chicago #299
(pdf, 871 KB)
Octavia B is a Stacey Stutzman decision against CPS,
ISBE4948 Christopher J. v. Bd of Ed of City of Chicago #299
placement at Acacia for a 7 yr old girl in 2d grade
is a non-reader.
IHO found substantial child find violations,
assessments and an
inadequate IEP. It is noteworthy that she
an interim order prior to
the hearing that required IEE at public expense in
auditory processing, speech/language and social
which were ignored when CPS conducted an initial
in response to
the due process request. She also ordered CPS to pay
for the evaluator to
attend an IEP meeting.
Interim order (pdf 28 KB) (denying IEE)
Decision (pdf 159 KB)
Christopher J is a 13 year old boy now in 7th grade;
CPS provided only
speech from 1st through 6th grade, when they did a
response to a due process request. Showing
that CPS has difficulty
doing it right even when they know a due process case
is pending, the
evaluation found this boy to have full scale IQ of
and labeled him
cognitively impaired. IEE's established
cognitive skills in the
average range. Mary Schwartz found child-find
assessments to be inadequate, and inappropriate
She ordered placement
at Acacia, and directed payment for IEEs obtained by
the parent, but denied
payment for evaluators to attend IEP meeting.
also ordered extensive
compensatory services: tutoring at home by a
ed certified teacher
for two hours per week for two years, and an
60 mpw of speech
services for two years.
K v. Momence
SD pdf (2.45 MB)
Decision by Judge Zagel regarding transportation for a 9 yr old boy
with autism, who is nonverbal and incontinent. The family lives
Kankakee County, and the boy's IEP provides for a private therapeutic
placement in southern Cook, about 50 miles away. The SD, in order
to save money, arranged for a neighboring SD bus to pick up the boy,
the result that his outbound trip was regularly two hours or
The return trip was about 1 ½ hours. Judge Zagel upheld
decision that the record lacked sufficient evidence of a direct impact
from the extra travel time on educational progress. There was
an attorney fee claim on some other issues that Hervey did rule
such as requiring an aide on the bus (the SD refused to provide, in the
IEP, for an aide on the bus); however, Zagel found the relief obtained
to be deminimus
Jujuan R v. CPS, html, ISBE 07-0023
Susan Cox decision against CPS. The case involves a
history of misdiagnosis, failure of evaluation, violation of procedural
safeguards. and failure to disclose an evaluation that had been
that showed the student had been misdiagnosed and
As relief, placement at Oconomow, two years of compensatory, and full
of all the recommendaitons of the private evaluators.
top of page