Debra Foster v. City of Chicago School Dist, et al
Filing
Filed Nonprecedential Disposition PER CURIAM. VACATED and the case is REMANDED. In all other respects the judgment is AFFIRMED. Joel M. Flaum, Circuit Judge; Michael S. Kanne, Circuit Judge and Ann Claire Williams, Circuit Judge. [6661963-1] [6661963] [14-3035]
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 11, 2015*
Decided May 11, 2015
Before
JOEL M. FLAUM, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 14‐3035
DEBRA A. FOSTER,
Plaintiff‐Appellant,
v.
BOARD OF EDUCATION OF
THE CITY OF CHICAGO and
AMANDLA CHARTER SCHOOL,
Defendants‐Appellees.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 13 C 3427
Matthew F. Kennelly,
Judge.
O R D E R
Debra Foster contends that her daughter was denied special‐education services
at her former school. Foster filed this lawsuit, principally claiming violations of the
Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 to 1418. On the
defendants’ motions, the district court dismissed the action with the explanation that
without an attorney Foster cannot litigate claims belonging to her daughter and that she
* After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus the appeal is submitted on the briefs and the record.
See FED. R. APP. P. 34(a)(2)(C).
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fails to state a claim of her own. FED. R. CIV. P. 12(b)(6). Foster appeals. We conclude
that she does state a claim for relief, and we vacate the dismissal in part and remand for
further proceedings.
For purposes of this appeal, we accept as true the factual account in Foster’s
amended complaint and its attachments. See Fox v. Am. Alt. Ins. Corp., 757 F.3d 680, 681
(7th Cir. 2014); Bogie v. Rosenberg, 705 F.3d 603, 609 (7th Cir. 2013). Foster’s daughter,
who is now in high school elsewhere, attended middle school at Amandla Charter
School, an open‐enrollment, free public school that is part of the Chicago school system.
Foster had first requested via a note in January 2010 that Amandla evaluate her
daughter for an Individualized Education Program (“IEP”). That summer, the girl
began receiving special‐education services pursuant to § 504 of the Rehabilitation Act,
see 29 U.S.C. § 794, but she was not evaluated for an IEP. A year later, Foster gave
Amandla an updated medical report so the school could continue the § 504 services,
and once more she requested that her daughter be evaluated for an IEP. School
administrators finally responded in November 2011 (nearly two years after Foster’s first
request) by telling Foster that she must give informed and written consent before her
daughter could be evaluated to create an IEP. See 20 U.S.C. § 1414(a)(1);
105 ILCS 5/14‐8.02(b). But Amandla did not send Foster a consent form, so that same
month she wrote a school administrator requesting a “full IEP” and “case study.”
Amandla waited another year to schedule an IEP meeting, which Foster, after
attending, derided as a sham. At that point Foster requested a due‐process hearing.
See 20 U.S.C. § 1415(f).
Several persons testified at that December 2012 hearing before the Illinois State
Board of Education. A clinical psychologist stated that Foster had retained her in
September 2011 to evaluate the girl, and she had recommended a full case study
including a speech and language evaluation. A speech and language pathologist
testified that he, too, had been retained by Foster in September 2011 to evaluate her
daughter and had discovered a significant memory disorder involving difficulty with
word and symbol retrieval. Subsequently he conducted 25 “intensive sessions” to
improve the girl’s “working memory and other issues,” after which her short‐term
memory retrieval progressed from “severe” to “low average.” Multiple case managers
from Amandla testified that they had known the girl was struggling in classes and at
some point had a § 504 plan. Foster requested that the school district provide speech
and language evaluations, reimbursement for the evaluations she had procured, a new
school placement, and “compensatory education” to include various reading, speech,
and language services.
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The hearing officer determined that, since at least November 2011, the school had
possessed “ample evidence” that Foster’s daughter needed special‐education services
but, he speculated, her paperwork likely “fell through the cracks.” Therefore, the
hearing officer concluded, the school district had “substantially impeded” the student’s
right to a “free appropriate public education” and had violated IDEA.
See 20 U.S.C. § 1412(a)(1). But the hearing officer also faulted Foster for not doing more
to assure that the school received the informed written consent necessary to evaluate
her daughter, see id. § 1414(a)(1)(D)(i)(I), though the hearing officer did not say what
else Foster might have done to prod Amandla to take action. In any event he ordered
Amandla to give Foster a consent form and explained to Foster that the school couldn’t
evaluate her daughter if she failed to return the completed form. The hearing officer
noted that the student should receive “compensatory education” for the period dating
back to March 2012, by which time, he thought, Amandla should have evaluated the
girl and implemented an IEP. He concluded that, since that time, the girl had made
significant gains during her sessions with the speech and language pathologist but still
required “an additional 25 intensive sessions” to achieve the level that “she would have
occupied but for the denial” of special‐education services under IDEA. After this ruling
Amandla apparently gave Foster a consent form, but she never signed and returned it.
Instead, a new school year was starting, and Foster enrolled her daughter at a different
public charter school. The girl, who is still a minor, was evaluated and given an IEP for
her high‐school program at the new school.
Any party “aggrieved” by an IDEA hearing officer’s “findings and decision”
may seek judicial review. See 20 U.S.C. § 1415(i)(2)(A); Jamie S. v. Milwaukee Pub. Sch.,
668 F.3d 481, 486 (7th Cir. 2012); S. Kingstown Sch. Comm. v. Joanna S., 773 F.3d 344, 349
(1st Cir. 2014); E.L. ex rel. Lorsson v. Chapel Hill‐Carrboro Bd. of Educ., 773 F.3d 509, 513–14
(4th Cir. 2014). Amandla and the Board of Education of the City of Chicago did nothing
to challenge the hearing officer’s decision, but Foster did. Foster, purporting to
represent her daughter as well as herself, filed this action alleging that Amandla and the
Board had violated IDEA by not providing the girl with a free appropriate public
education. (Like all Illinois public schools, charter schools must comply with IDEA,
see 105 ILCS 5/27A‐5(g), and the Board, as the “local educational agency” for all public
schools in Chicago, is a proper defendant, see 20 U.S.C. §§ 1413(a), 1401(19)(A); Stanek v.
St. Charles Cmty. Unit Sch. Dist. # 303, No. 14‐3012, 2015 WL 1570155, at *3 (7th Cir. Apr.
9, 2015).) Foster also asserted related claims under § 504 of the Rehabilitation Act and
42 U.S.C. § 1983.
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In granting the defendants’ motions to dismiss, the district court first recognized
that Foster cannot litigate her daughter’s claims under IDEA (or the other statutes she
cites) without a lawyer. Those claims the district court dismissed without prejudice to
the daughter’s right to pursue them in the future. That ruling significantly limited
Foster’s bases for recovery under IDEA and ruled out entirely a claim under the
Rehabilitation Act, since Foster is not disabled and thus has no discrimination claim of
her own under § 504. The court further concluded that Foster’s complaint fails to state a
claim under § 1983 because it makes no allegations that a policy or custom of these
corporate defendants was the moving force behind the claimed injuries to Foster.
See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690–91 (1978).
On the other hand, the district court acknowledged that Foster, as the parent of a
child with a learning disability, would have enforceable rights under IDEA
independent of her daughter. The defendants had argued that Foster could not proceed
with any claims of her own because, they contended, she did not sign a consent form
after the hearing officer’s decision and thus could not claim that she was “aggrieved” by
that decision. The district court rejected that reasoning; the court concluded that what
Foster did or didn’t do after the hearing officer’s decision was irrelevant to whether she
was aggrieved by the hearing officer’s disposition of her complaints about events
occurring before the hearing. The district court, though, offered its own reasons for
concluding that Foster had not been aggrieved by the hearing officer’s decision. Most
significantly, the court said, Foster’s federal complaint seeks reimbursement for the cost
of her daughter’s sessions with the speech and language pathologist, which, the court
asserted, is not among the relief she requested from the hearing officer. It followed, the
court reasoned, that Foster was not aggrieved by the hearing officer’s decision. And
since that decision did give Foster other relief, the court added, she has no claim under
IDEA.
In this court the defendants first argue that we lack appellate jurisdiction because
the district court dismissed the daughter’s claims without prejudice. This contention
misunderstands the meaning of a “final” decision for purposes of 28 U.S.C. § 1291. The
district court dismissed without prejudice the claims belonging to Foster’s daughter in
order to make clear that the girl, who is not even a proper plaintiff, is not forced to counter
a meritless defense of claim preclusion should she ever decide to pursue those claims.
See Taylor v. Sturgell, 553 U.S. 880, 892–93 (2008); Tice v. Am. Airlines, Inc., 162 F.3d 966,
970–71 (7th Cir. 1998). But for purposes of § 1291, finality simply means that nothing
remains to be decided and the district court is finished with the case. See Gelboim v. Bank
of Am. Corp., 135 S. Ct. 897, 902 (2015); Brown v. Columbia Sussex Corp., 664 F.3d 182, 186
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(7th Cir. 2011). Here the district court terminated the lawsuit, rendering its dismissal
final. See Gelboim, 135 S. Ct. at 902; Runnion ex rel. Runnion v. Girl Scouts of Greater Chi. &
Nw. Ind., No. 14‐1729, 2015 WL 2151851, at *3 n.2 (7th Cir. May 8, 2015); Luevano v.
Wal‐Mart Stores, Inc., 722 F.3d 1014, 1020–21 (7th Cir. 2013). Secure in our jurisdiction,
we turn to the merits.
Foster does not develop challenges to the district court’s dismissal of her § 504
and § 1983 claims. She does continue to maintain that, as the hearing officer concluded,
the defendants violated IDEA by denying her daughter a free appropriate public
education. But Foster misses the district court’s point that it’s necessary to distinguish
between violations of the girl’s rights under IDEA and Foster’s own statutory rights.
Foster acknowledges the distinction, but she reads Winkelman ex rel. Winkelman v. Parma
City School District, 550 U.S. 516 (2007), as holding that a pro se parent can litigate a
minor child’s claims under IDEA. That reading is incorrect. Winkelman confirms that
parents of a child with a learning disability have their own enforceable rights under
IDEA, see id. at 531–33, but the decision specifically leaves open the question whether
IDEA allows a parent to litigate the child’s claims without counsel, see id. at 535. And
we have repeatedly held that the rule prohibiting a nonlawyer from representing
another person extends to a parent attempting to represent her minor child pro se.
See Georgakis v. Ill. State. Univ., 722 F.3d 1075, 1077 (7th Cir. 2013); Elustra v. Mineo, 595
F.3d 699, 705 (7th Cir. 2010); Malone v. Nielson, 474 F.3d 934, 937 (7th Cir. 2007); Mosely v.
Bd. of Ed. of Chi., 434 F.3d 527, 532 (7th Cir. 2006); Navin v. Park Ridge Sch. Dist. 64, 270
F.3d 1147, 1149 (7th Cir. 2001). Thus the district court properly dismissed Foster’s
daughter’s purported claims.
The district court erred, however, in dismissing Foster’s own claims. Foster
alleges that the defendants kept her from participating in special‐education procedures
by repeatedly ignoring her requests to evaluate her daughter for an IEP and that she
had to pay for her daughter’s sessions with the speech and language pathologist from
September 2011 to May 2013. These allegations are sufficient to state a claim that
Foster’s parental rights under IDEA were violated. See 20 U.S.C. § 1415(a), (b); Stanek,
2015 WL 1570155, at *4. And IDEA authorizes reimbursement for the cost of private
special‐education services when a school district fails to provide a free appropriate
public education. See Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 247 (2009); Florence
Cnty. Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 12–14 (1993); Sch. Comm. of Town of
Burlington, Mass. v. Dep’t of Educ. of Mass., 471 U.S. 359, 369–70 (1985); Stanek, 2015 WL
1570155, at *4; Blount Cnty. Bd. of Educ. v. Bowens, 762 F.3d 1242, 1247 (11th Cir. 2014);
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Reyes ex rel. R.P. v. N.Y.C. Dep’t of Educ., 760 F.3d 211, 215 (2d Cir. 2014); Batchelor v. Rose
Tree Media Sch. Dist., 759 F.3d 266, 277 (3d Cir. 2014).
The defendants insist that Foster does not state a claim because she still does not
explain how she was aggrieved by the hearing officer’s decision. But we read Foster’s
pro se filings more generously. Notably, the defendants do not attempt to defend the
district court’s determination that Foster was not aggrieved because she did not
specifically request from the hearing officer reimbursement for her daughter’s previous
sessions with the speech and language pathologist. This reasoning is unsupported by
authority and we conclude that it is unsound. Foster requested several forms of
“compensatory education,” including speech and language services, which the hearing
officer acknowledged had been helpful and thus ordered the defendants to pay for 25
more sessions with the same pathologist. The hearing officer’s failure to explicitly order
the defendants to also pay for the 25 prior sessions—even though he calculated an
appropriate compensatory‐education period to begin in March 2012—does not mean
that Foster did not intend such reimbursement to be part of the requested relief.
Moreover, IDEA authorizes a district court to grant “such relief as [it] determines
is appropriate.” 20 U.S.C. § 1415(i)(2)(C)(iii); see Batchelor, 759 F.3d at 277; Bowens, 762
F.3d at 1246. Indeed, “compensatory education” is a judicially created equitable remedy
available “to compensate for a past denial of a free appropriate public education.”
Jamie S., 668 F.3d at 489; see Bd. of Educ. of Oak Park & River Forest High Sch. Dist. 200 v.
Ill. State Bd. of Educ., 79 F.3d 654, 660 (7th Cir. 1996). And the term has been defined in
various ways by our sister circuits. See, e.g., R.L. v. Miami‐Dade Cnty. Sch. Bd., 757 F.3d
1173, 1178 (11th Cir. 2014) (court may order “extra educational services designed to
compensate for a past deficient program”); Batchelor, 759 F.3d at 277–78 (compensatory
education may include reimbursement for tutoring or other financial losses); D.C. v.
Ijeabuonwu, 642 F.3d 1191, 1195 (D.C. Cir. 2011) (compensatory education is “the belated
provision of educational services the child should have received in the first place”); R.P.
ex rel. C.P. v. Prescott Unified Sch. Dist., 631 F.3d 1117, 1125 (9th Cir. 2011) (compensatory
education is an equitable remedy to account for educational services the school should
have been providing); Somoza v. N.Y.C. Dep’t of Educ., 538 F.3d 106, 109 n.2 (2d Cir. 2008)
(compensatory education is “prospective equitable relief” and a school district must
even “fund education beyond the expiration of a child’s eligibility as a remedy for any
earlier deprivations in the child’s education”). We have said that “reimbursement for
out‐of‐pocket educational expenses” is one type of compensatory education, Brown v.
Bartholomew Consol. Sch. Corp., 442 F.3d 588, 597–98 (7th Cir. 2006), and thus Foster’s
request for compensatory education must be read to include a request for
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reimbursement. A parent who unilaterally places her child in private tutoring assumes
the risk that she may not be reimbursed if the public school did not violate IDEA or the
placement is inappropriate, see M.B. ex rel. Berns v. Hamilton Se. Sch., 668 F.3d 851, 864
(7th Cir. 2011), but here the defendants do not challenge the hearing officer’s findings
that they had denied Foster’s daughter a free appropriate public education and that her
sessions with the speech and language pathologist had been an appropriate—although
not entirely sufficient—alternative.
Accordingly, as to Foster’s own claims under the Individuals with Disabilities
Education Act, the judgment is VACATED and the case is REMANDED for further
proceedings consistent with this decision. In all other respects the judgment is
AFFIRMED.
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