Miksis et al v. Evanston Township High School District 202
Filing
88
MEMORANDUM Opinion and Order: The Amended Memorandum Opinion and Order entered on January 31, 2017, 86 , is stricken and replaced with the attached Amended Memorandum Opinion and Order. Status hearing set for 2/15/2017 at 09:00 AM. All other status dates are vacated. Signed by the Honorable Thomas M. Durkin on 2/2/2017:Mailed notice(srn, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MICHAEL AND CHRISTINE MIKSIS,
ON BEHALF OF JOHN MIKSIS,
PLAINTIFFS,
v.
EVANSTON TOWNSHIP HIGH SCHOOL
DISTRICT # 202,
DEFENDANT.
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No. 12 C 8497
Judge Thomas M. Durkin
AMENDED MEMORANDUM OPINION AND ORDER
By minute order dated September 30, 2016 (R. 81), the Court denied the
parties’ pending cross-motions for summary judgment (R. 49, 51), stating that a
written opinion would follow. The Court now sets forth the reasons for its
September 30, 2016 order.
TABLE OF CONTENTS
BACKGROUND
A.
Introduction
B.
The First Lawsuit
C.
Meetings To Establish John’s Educational Program For PostSenior Year And Subsequent Settlement Of The First Lawsuit
D.
Post-Settlement Disputes
1.
Orchard Academy Aides And Supports For John’s
Classes At Oakton Community College
2.
Defendant’s Termination Of Orchard Placement
And
Disenrollment
From
School
For
Nonattendance
3.
PACE’s Denial Of John’s Application And His
Enrollment In ELSA
E.
The Present Lawsuit
DISCUSSION
I.
Subject Matter Jurisdiction
A.
B.
Federal Question Jurisdiction Based On The IDEA
C.
Federal Question Jurisdiction Based On An Embedded
Issue Of Federal Law
D.
II.
Jurisdiction Based On Breach Of An Agreement To Settle
A Federal Claim
Supplemental Jurisdiction
Summary Judgment
A.
Standard of Review
B.
State Law Breach Of Contract Claims
1.
Whether Administrative Exhaustion Applies
2.
Whether Defendant Breached The Settlement
Agreement
a.
Orchard
Aides
And
Supports
Community College Classes
b.
For
PACE/ELSA Program
(i)
(ii)
Material Breach Doctrine
(iii)
C.
Anticipatory Breach Theory
Supplying The Missing Contractual Term
On Which The Parties Failed To Agree
Federal IDEA Claims
1.
Whether Plaintiffs Were Required To Exhaust
Their Administrative Remedies
a.
b.
2.
D.
Waiver
Futility Or Inadequacy Of Exhaustion
Whether Defendant Denied John A FAPE
Equitable Issues: Failure To Cooperate, Estoppel,
and Unclean Hands
CONCLUSION
2
BACKGROUND 1
A.
INTRODUCTION
This case concerns the high school education of John Miksis. John is
currently twenty-six years old, but, when the events at issue began, he was a
twelve-year old child with Down Syndrome who was about to enter the ninth grade.
Defendant Evanston Township High School District #202 is a public educational
agency that receives federal funding. As such, Defendant is subject to federal
education laws and regulations, including the Individuals with Disabilities
Education Act, 20 U.S.C. § 1400 et seq., as amended by the Individuals with
Disabilities Education Improvement Act (“IDEIA”), P.L. 108–446, 118 Stat. 2647
(Dec. 3, 2004) (hereinafter (“the IDEA” or “the Act”). 2
The IDEA is a federal statutory scheme governing the education of disabled
students like John, which seeks “to ensure that all children with disabilities have
available to them a free appropriate public education that emphasizes special
education and related services designed to meet their unique needs and prepare
them for further education, employment, and independent living.” 20 U.S.C.
The information in this section, which may include both disputed and undisputed
facts, is drawn from allegations in the pleadings, discovery materials submitted by
the parties, and documents that are part of the court record in John M. ex rel.
Christine M. v. Board of Education of Evanston Township High School District 202,
Case No. 05-cv-6720 (N.D. Ill., filed Nov. 28, 2005) (hereinafter cited as John M., 05cv-6720).
1
As the Third Circuit explained in Ballard ex. rel Ballard v. Philadelphia School
District, 273 Fed. App’x 184, 195 n.1 (3d Cir. 2008), the IDEA was renamed the
IDEIA, effective July 1, 2005. But the parties continue to refer to the statute as the
IDEA, and therefore the Court will do the same.
2
3
§ 1400(d)(1)(A). The term “free appropriate public education,” or “FAPE,” is defined
in the Act as “special education and related services that—(A) have been provided
at public expense, under public supervision and direction, and without charge;
(B) meet the standards of the State educational agency; (C) include an appropriate
preschool, elementary school, or secondary school education in the State involved;
and (D) are provided in conformity with the individualized education program
required under section 1414(d) of [the Act].” 20 U.S.C. § 1401(9).
B.
THE FIRST LAWSUIT
In the spring of 2004, John’s parents, Michael and Christine Miksis, were in
discussions with Defendant about the individualized education program, or “IEP,” 3
for John’s up-coming freshman year at Evanston Township High School (“ETHS”).
The parties were unable to agree about what John’s IEP should include. Therefore,
John’s parents filed an administrative complaint and requested an impartial due
process hearing to resolve the issue. 4 The hearing was held over the course of
An IEP is “a written statement that maps out how a school district will provide an
IDEA-compliant education” for that student. Alex R. ex rel. Beth R. v. Forrestville
Valley Cmty. Unit Sch. Dist. # 221, 375 F.3d 603, 606 (7th Cir. 2004). It is developed
by a team composed of the student’s parents, teachers, and other school district
representatives, 20 U.S.C. § 1414(d)(1)(B), and includes, among other things, the
“special education and related services,” “supplementary aids and services,” and
“program modifications or supports for school personnel that will be provided” to the
disabled student by the school district, id., § 1414(d)(1)(A)(i)(1)(IV).
3
In addition to ensuring that disabled students are provided a FAPE, the IDEA also
seeks “to ensure that the rights of children with disabilities and parents of such
children are protected.” 20 U.S.C. § 1400(d)(1)(B). This goal is achieved by requiring
state and local educational agencies to “establish and maintain procedures . . . to
ensure that children with disabilities and their parents are guaranteed procedural
safeguards with respect to the provision of a free appropriate public education by
such agencies.” Id., § 1415(a). Among the required procedural safeguards is the
4
4
several days in the fall of 2004. At the conclusion of the hearing, the hearing officer
issued a written decision finding against John and his parents. Dissatisfied with
that result, John’s parents exercised their right to appeal the hearing officer’s
decision to a federal court in this district. 5 John’s parents’ lawsuit was assigned to
Judge Holderman (05-cv-6720), who, shortly after the case was filed, issued an
order granting Plaintiffs a preliminary injunction to require Defendant to provide
on a temporary basis while the case was being litigated the educational supports
and services that John’s parents believed were necessary to comply with the IDEA.
See John M. ex rel. Christine M. v. Bd. of Educ. of Evanston Twp. High Sch. Dist.
202, 450 F. Supp. 2d 880 (N.D. Ill. Aug. 18, 2006). 6 Defendant, however, filed an
interlocutory appeal from Judge Holderman’s preliminary injunction order, and
opportunity to lodge a formal complaint “with respect to any matter relating to the
identification, evaluation, or educational placement of the child, or the provision of
a free appropriate public education to such child,” id., § 1415(b)(6)(A), as well as to
participate in an “impartial due process hearing,” id., § 1415(f)(1)(A), before an
independent hearing officer who is an expert in special education laws and issues,
id., § 1415(f)(3)(A).
See 20 U.S.C. § 1415(i)(2)(A), (3)(A) (providing that “[a]ny party aggrieved” by a
final decision of a state educational agency may bring a civil action in state or
federal court appealing that decision).
5
Judge Holderman’s preliminary injunction order was based on the “stay-put”
provision of the Act, which mandates that, during the pendency of any due process
proceedings, the child is to remain in his or her “then-current educational
placement.” 20 U.S.C. § 1415(j). Judge Holderman found that John’s “then-current
educational placement” was John’s most recent IEP, which was the IEP established
by John’s elementary school district for John’s eighth grade school year. See Drinker
ex. rel Drinker v. Colonial Sch. Dist., 78 F.3d 859, 867 (3d Cir. 1996) (“then-current
educational placement” typically means the child’s most recent educational
placement). The special educational services and supports set out in John’s eighth
grade IEP were the same ones that John’s parents had sought but were denied in
the due process hearing from which they had appealed.
6
5
ultimately was successful in getting that order reversed for further consideration.
See John M. v. Bd. of Educ. of Evanston Twp. High Sch. Dist. 202, 502 F.3d 708 (7th
Cir. 2007). The Seventh Circuit issued a ruling in favor of Defendant on September
17, 2007, and a mandate remanding the case to Judge Holderman for further
proceedings on October 9, 2007.
By the time the Seventh Circuit remanded the lawsuit to the district court,
John was in his third year of high school. Thereafter, another year passed while the
parties attempted to settle the case. In the fall of John’s senior year, Defendant filed
a motion to dismiss the federal lawsuit, arguing that, because John was about to
finish his senior year, the lawsuit was moot. John’s parents contested that motion,
arguing that the case was not moot because John’s rights under the IDEA did not
terminate with the end of his senior year of high school. Instead, John was entitled
to special educational services from Defendant until he graduated, or through the
day before he turned twenty-two, whichever came first. See 20 U.S.C.
§ 1412(a)(1)(A); 34 C.F.R. § 300.101(a). As all parties to the lawsuit conceded, John
would not actually be graduating at the end of his senior year of high school. John’s
parents argued that, because Defendant would still be required to provide John
with educational services beyond his senior year of high school, 7 the substantive
issues in the lawsuit regarding the special educational services and aides to which
John was entitled were not moot. See John M., 05-cv-6720, Dkt. # 98 at 9.
John turned 22 years old on October 15, 2012, and thus his IDEA eligibility
expired at the end of the day on October 14, 2012. See R. 61 at 22 (Def. Add’l SOF,
¶ 2) (admitting that John was eligible for special education under the IDEA until
October 14, 2012).
7
6
In a ruling issued on March 16, 2009, Judge Holderman rejected Plaintiffs’
arguments that the underlying merits issues about the educational services to
which John was entitled presented a live controversy. According to Judge
Holderman, the question of what educational services John was entitled to during
his first four years of high school was different than the same question asked about
John’s IDEA-eligible years after his senior year of high school. The federal lawsuit
filed by John’s parents, Judge Holderman concluded, dealt only with the former
question, which all parties agreed no longer needed to be decided:
Plaintiffs do not articulate how or why John’s transition
program[ 8] should be considered analogous to John’s
academic program. It appears to the court that these
programs are distinct, as there is no indication that either
party intends the transition program to include
enrollment within the general curriculum. The fact that
Evanston School District will be providing these services
Judge Holderman adopted the parties’ use of the term “transition program” to
refer to the educational services Defendant would be providing John in the time
period between the end of John’s senior year of high school and the end of his IDEA
eligibility. But the word “transition” as used in the Act does not refer to a specific
period of time in which a distinct educational program is to be delivered to a
student. Instead, it refers to a category of special educational services the IDEA
requires the school district to provide as part of a child’s IEP “beginning no later
than the one that will be in effect when the child is 16 years old.” Bd. of Educ. of
Twp. High Sch. Dist. No. 211 v. Ross, 486 F.3d 267, 275-76 (7th Cir. 2007) (IEP
must “include ‘appropriate measurable postsecondary goals based on age
appropriate transition assessments related to training, education, employment,
and, where appropriate, independent living skills,’” and must “describe the
‘transition services (including courses of study) needed to assist the child in
reaching those goals’”) (quoting 20 U.S.C. § 1414(d)(1)(A)(i)(VIII)(aa)-(bb)). Illinois
has extended this requirement so that transition services must be provided
beginning no later than the school year in which the child turns 14 years old. See
105 ILCS 5/14-8.03(a-5); 3 Ill. Adm. Code 226.230(c). Thus, according to state and
federal law, “transition services” should have been provided to John throughout his
secondary school education, including his first four years of high school.
8
7
is not enough by itself to demonstrate that John’s past
IEPs remain relevant at this point in John’s education.
John M. v. Bd. of Educ. of Evanston Twp. High Sch. Dist. 202, 2009 WL 691276, at
*4 (N.D. Ill. Mar. 16, 2009) (footnote omitted). Nevertheless, Judge Holderman
agreed with Plaintiffs’ additional arguments that the first lawsuit was not entirely
moot, because, in addition to seeking a change in Defendant’s proposed IEP for
John, Plaintiffs also were seeking compensatory education 9 for Defendant’s past
violations of the “stay-put” IEP 10 and their attorneys’ fees. 11 Plaintiffs’ claims to
recover both of these items of damages, Judge Holderman held, were still viable. Id.
at *5-6.
C.
MEETINGS TO ESTABLISH JOHN’S EDUCATIONAL PROGRAM FOR
POST-SENIOR YEAR AND SUBSEQUENT SETTLEMENT OF THE
FIRST LAWSUIT
Around the time the parties were addressing the mootness issue in the first
lawsuit, they also were meeting outside the litigation to discuss John’s placement
after the end of his senior year and during the final years of his IDEA eligibility.
These discussions occurred during two meetings in the spring of 2009. The first
Compensatory education “is a judicially created equitable remedy available to
compensate for a past denial of a free appropriate public education.” Foster v. Bd. of
Educ. of City of Chi., 611 Fed. App’x 874, 878 (7th Cir. 2015) (unpublished) (internal
quotation marks and citation omitted).
9
10
See footnote 6.
The IDEA has a fee-shifting provision, which provides that, “[i]n any action or
proceeding brought under this section, the court, in its discretion, may award
reasonable attorneys’ fees as part of the costs to the parents of a child with a
disability who is the prevailing party.” 20 U.S.C. § 1415(i)(3)(B); see Linda T. v. Rice
Lake Area Sch. Dist., 417 F.3d 704, 707 (7th Cir. 2005).
11
8
meeting took place on March 27, and the second meeting took place on May 15. In
both instances, the meeting was led by Bob Gottlieb, who at the time was
Defendant’s Director of Special Education. Believing they had reached an
agreement regarding John’s educational placement during these meetings, the
parties subsequently entered into a settlement of the first lawsuit. The Settlement
Agreement provided that Plaintiffs would release Defendant from their claims in
the lawsuit, and, in return, Defendant agreed to provide certain special educational
services during John’s first post-senior year of IDEA-eligibility (2009-2010 academic
year) as follows:
1.
As discussed during John’s Individual
Education Plan (“IEP”) meeting held by the parties on
May 15, 2009, the parties agree that John will attend
Orchard Academy . . . in its intensive individualized
transition program beginning August 25, 2009 at the
District’s expense. The parties further agree that Orchard
Academy will make its own individualized assessments of
John’s educational, psychological, physical and life skills
in order to recommend to the IEP team what John’s
educational goals are and to recommend to the IEP team
the services, aids and therapies that John will require to
accomplish those goals and move toward independent
living. During the period of Orchard Academy’s individual
assessment of John, John will receive those aid[e]s,
including but not limited to speech and occupational
therapy, at the same level he received during the 20082009 school year (with the exception of Adapted Physical
Education, which will not be provided). Within 30 days
after Orchard Academy completes its assessment, the
parties will meet in an IEP meeting to confirm that the
assessment and educational and other goals established
by Orchard Academy are consistent with John’s transition
goals discussed in the parties’ May 15, 2009 IEP meeting
and to finalize John’s IEP for 2009-2010.
9
R. 49-3 at 2 (Settlement Agreement, ¶ 1). The Agreement goes on to address John’s
final IDEA-eligible secondary school years (2010-2011 academic year; 2011-2012
academic year through October 14, 2012) as follows:
2.
Beginning in the Fall of 2010, it is the
parties’ intent that John will be enrolled in the transition
education program at the Professional Assistance Center
for Education, referred to as the PACE program at
National Louis University (the “PACE program”), . . . at
the District’s expense, with John continuing in the PACE
program through the day before his 22nd birthday;
however, it is agreed that John’s enrollment in the PACE
program is contingent upon the PACE program’s
acceptance of John into its program. If John is not
accepted into the PACE program, if he is terminated from
the PACE program, or if the PACE program is
terminated, the parties agree to meet to discuss and
consider other appropriate placement options for John’s
post-secondary transition education. However, all other
provisions of this Agreement shall remain in effect
regardless of John’s acceptance, non-acceptance or
termination from or of the Orchard Academy or PACE
programs.
Id. at 7-8 (Settlement Agreement, ¶ 2).
The Agreement concludes with an acknowledgement that it “is a release and
settlement of disputed claims, as provided for herein[ ] . . . entered into solely as
and for a compromise settlement of such disputed claims.” Id. at 5 (Settlement
Agreement, ¶ 9). It was signed on July 11, 2009 by each of John’s parents and by
John, and on July 17, 2009 by Eric Witherspoon, Superintendent of Evanston
Township High School District #202. Id.
D.
POST-SETTLEMENT DISPUTES
On July 1, 2009, Maria Smith replaced Gottlieb as Defendant’s Director of
Special Education. R. 52-5 at 2 (Smith Declaration). Smith did not participate in
10
either of the two meetings held in the spring of 2009 or in the negotiation or
execution of the Settlement Agreement. See R. 49-7 at 18-21 (Smith Deposition).
Shortly after Smith took over and at the beginning of John’s first post-senior
secondary school year, disputes arose over the nature and scope of the educational
support and services to which Defendant had agreed.
1.
ORCHARD ACADEMY AIDES AND SUPPORTS FOR
JOHN’S CLASSES AT OAKTON COMMUNITY
COLLEGE
The first dispute centered on John’s enrollment in classes at Oakton
Community College. John began his placement at Orchard Academy on August 31,
2009. A few weeks prior to that date, Christine Miksis had emailed Tim Bobrowski,
Director of Orchard Academy, indicating that a settlement had been reached in the
lawsuit and that she had enrolled John in classes at Oakton. 12 From approximately
August 31 through September 9, John attended Orchard Academy and the
The email appears to have been sent for purposes of touching base with Orchard
in anticipation of John’s upcoming start in that program beginning on August 31,
2009. It states in pertinent part as follows:
12
I don’t know if you have been contacted, but I wanted to
let you know that a settlement agreement was signed in
mid-July and was approved by the judge on July 23. I
have been making class arrangements at Oakton. I don’t
have a printout of the class schedule yet . . . . Attached is
the stay-put IEP (the IEP that was used through HS). . . .
I know that your program starts August 25, but . . . [w]e
will return on Aug 30; ETHS starts on Aug 31. I believe
my husband tried to get John’s transcript and ACT scores
forwarded to OA. I am not sure if you have received it yet.
Please let me know if there is anything else I need to send
you.
R. 52-6 at 12.
11
community college classes in which his parents had enrolled him. Orchard provided
John with transportation to and from his classes and a one-on-one aide to support
them. Moreover, a special education assistant at Orchard, Sarissa Hahn, sent
John’s parents an email with an attached document titled “Orchard Academy
Responsibilities with regard to John Miksis attending Oakton Community College.”
R. 49-5. 13 The stated purpose of the document was “to provide] a clear set of our
expectations for John, your family, and ourselves[ ] . . . to be sure we are all on the
same page in terms of supports for John.” Id. at 1. The document states, among
other things, that Orchard staff would “provide supports to John to access his
classroom at Oakton College,” would “attend class, if professor allows,” and would
“assist John to access approximately 4 hours of tutoring support at Oakton.” Id. at
2.
On or about September 9, 2009, Smith had a telephone conversation with
Bobrowski regarding John’s program at Orchard. It was then that she first learned
John had been attending community college classes since the start of the school
year and Orchard had been providing aides and supports for those classes.
According to Bobrowski, Smith notified him “that John’s attendance at Oakton was
a unilateral action by John’s parents, that the District had not agreed to and did not
authorize Orchard to provide services and transportation related to Oakton courses,
Defendant states that the Hahn email and attached document have not been
authenticated. Because the email was sent to Christine Miksis, she will likely be
able to provide the proper foundation for its admission at trial. See generally U.S.
Equal Emp’t Opportunity Comm’n v. Olsten Staffing Servs. Corp., 657 F. Supp. 2d
1029, 1034 (W.D. Wis. 2009). Therefore, the Court can consider the email at this
stage of the proceedings. See footnote 42.
13
12
and that Orchard should cease providing such services and transportation to John.”
R. 52-4 at 8 (Bobrowski Decl. ¶ 29). “Based on Dr. Smith’s direction, on or around
September 9, 2009, Orchard discontinued providing John services related to his
attendance at courses at Oakton.” Id. (Bobrowski Decl. ¶ 30). Also on September 9,
Smith spoke with Christine Miksis by telephone. After the call, Christine wrote
Smith an email stating the following:
I am sorry you are so upset. Clearly, you were not
provided with complete information.
There were many people at the meeting on May 15, 2009.
There was no IEP written.
John’s goals for his future were presented at a meeting in
March where several placement options were discussed.
Orchard Academy did not come to that meeting; their
representatives did attend the May meeting. The
decisions made at the May meeting determined what was
written in the settlement agreement. The settlement
agreement clearly states that John’s 2008-2009 program
remains in effect until after Orchard Academy completes
its assessment and an IEP meeting is held to write up a
transition IEP. No one tried to pull anything over on
anyone and I am sorry you feel that way.
I also do not understand why you are so adamantly
opposed to John taking classes at Oakton; you have many
students from ETHS who are taking classes there . . . and
some receive many more services than John. The Orchard
Academy representative brought up the issue of the aide
and your own attorney agreed that this service would be
continued, with a gradual taper.
The program was clearly described by the Orchard
Academy representative and it is partly described on their
website (http://ww.orchardacademy.org/curriculum/). This
is the individualized program.
13
Again, this was all decided in front of many people. (The
program that was included in John’s file may have come
from another publication and I believe that program is
their “standard” program).
I am sorry to hear that you have already decided what
program is appropriate for John without ever having met
him or us. However, we have paid for John to take the
classes at Oakton and you cannot bar him from taking
classes there. He will continue his classes as he is entitled
to continue his education like any other student. The
classes are necessary for him to meet his vocational and
independence goals. At this time it is probably best to
leave all further discussions to the attorneys as it seems
that we are clearly at an impasse. I have informed
Orchard Academy that we will continue sending John to
his classes at Oakton. If you do not authorize them to
continue the program as agreed to in the settlement plan,
we cannot send John there until there is a definitive
resolution. This will hold up the completion of the
assessments.
R. 49-8 at 1.
That same day, Defendant’s attorney, Patricia Whitten, sent Plaintiffs’ thenattorney, Michael Graham, a letter setting forth Defendant’s position regarding the
community college issue:
Mrs. Miksis informed OA [Orchard Academy] that John
would be attending these classes shortly before John
began attending the program at OA. She told them that
the District was aware of this and that they must provide
transportation and support in accordance with the “stay
put” IEP from 8th grade, which she said was still in effect.
As you and I have already agreed, said IEP is no longer in
effect. Due to your client’s misrepresentations to OA staff,
OA mistakenly began providing transportation and a 1:1
aide for John for two Oakton classes which started last
week (John’s first week attending the OA program). . . .
The settlement agreement between the parties does not
contain any agreement regarding John’s attendance at
courses at Oakton Community College, nor does the
14
current transition program IEP provide for this. No one
on the IEP team other than the parents thought that it
would be appropriate for John to take courses at Oakton
at this point . . . and you stated at the March 27, 2009 IEP
meeting that the parents had decided that attending
Oakton was not appropriate for John at this time. The
parents unilaterally registered John at Oakton without
consulting anyone from the District or OA, which we feel
is an attempt to usurp the OA transition program. OA’s
completion of John’s assessments has been delayed due to
his attendance at Oakton and resulting unavailability.
R. 52-6 at 14.
Thereafter, it appears the parties reached a truce of sorts, with John’s
parents providing transportation and tutoring for John’s community college classes
at their own expense while John also continued to participate in Orchard’s program
when he was not attending academic classes at the community college. John’s
parents sought to preserve their rights under the IDEA and the Settlement
Agreement by sending Smith a letter, stating, among other things, that they “may
seek reimbursement” for the costs they incur to provide the aides and supports
terminated by Smith. 14 Meanwhile, Smith tolerated John’s attendance at Oakton
classes and consequent absences from the Orchard program in deference to his
parents’ preferences. 15 In addition, the parties continued to meet and communicate
See R. 52-6 at 4 (September 18, 2009 letter from Christine Miksis) (“Until such
time as John’s entire program is reinstated, we will provide at our own expense the
portion of John’s educational program that you discontinued so that his education is
not interrupted and his progress is not impeded. This includes all of the associated
support services that are listed in his program from last year and that had
previously been provided by Orchard Academy. We may seek reimbursement for all
costs we incur because this placement is necessary to provide John with a FAPE.”).
14
See R. 49-7 at 41-42 (Smith Deposition) (“Q: When you say there was an
understanding that the parents did not want [John] there full-time and you
15
15
with each other over Orchard’s on-going assessments of John and proposed
adjustments to be made to his 2009-2010 IEP based on those assessments, as both
parties acknowledged had been agreed upon at the May 15, 2009 meeting.
2.
DEFENDANT’S
TERMINATION
OF
ORCHARD
PLACEMENT AND DISENROLLMENT FROM SCHOOL
FOR NONATTENDANCE
In the early part of 2010, John’s attendance at Orchard declined even further
and Smith apparently came to the decision that this was not acceptable. Rather
than call a meeting to communicate her decision and discuss whether mutual
resolution of the problem was possible, Smith sent John’s parents a letter. The
letter was sent by regular mail on or about March 5, 2010, and stated that John’s
placement at Orchard would be terminated effective March 15 based on his
nonattendance:
[S]ince the meeting [on January 15], John’s attendance at
the Orchard Academy program has declined even more,
and as you know this semester he is attending only once a
week, on Fridays. . . . . Under these circumstances, you
are preventing District 202 from providing a transition
program to John this year, and the District has no choice
but to terminate the placement based on your noncooperation. Clearly John is not able to gain benefit from
this or any program by attending once a week. Please be
advised that John’s program at Orchard Academy will
end at the end of the day on March 15, 2010. The enclosed
IEP, developed over three IEP meetings, is being offered
to John based on his full time attendance in a transition
program. If you choose to accept the placement at Orchard
Academy and want to send John to the program full-time,
please contact me, and I will then reinstate his program
respected that, do you mean there was an understanding that Mr. and Mrs. Miksis
wanted John to attend classes at Oakton College instead of at times when he should
have been at the Orchard Academy placement? A. Yes. I think so, yes.”).
16
at OA. If you prefer, we could have another IEP meeting
as soon as possible to review the program and facility
options yet again. Please let me or your attorney know
how you wish to proceed. In any event, we should
schedule a meeting in the near future to discuss John’s
placement for 2010-11 pursuant to the settlement
agreement.
R. 52-6 at 19.
An identical letter also was sent by Whitten to Plaintiffs’ new attorney,
Stephen Glick. See R. 52-6 at 22. Glick responded to a telephone voice message
conveying the same information, apparently left by another of Defendant’s
attorneys (John Relias), with an email dated March 15, 2010 (the effective date of
John’s termination per the March 5 letter):
John:
I received your voice message (left Friday) today[ ] . . .
that the district is going to terminate John’s current
placement because he is not attending except on Friday
and that the district does not want to continue to pay for a
placement that is not being used. My position on that is
that this would be an illegal act. Under the law, the
district is obligated to offer a FAPE. This placement is in
place via a written settlement agreement. I am not aware
of any authority, either via the settlement agreement or
via federal law that authorizes the district to unilaterally
terminate this placement (or any placement) without a
properly noticed IEP meeting. Also, I think this needs to
be discussed/considered by the IEP team. I am certain
that Patti [Whitten] has informed you that my clients do
not believe that OA [Orchard Academy] is appropriate for
their son. To that end, I will talk to my clients. However, I
think we need to discuss other options for John.
R. 52-6 at 26.
The record does not contain any information about further communication
that might have taken place between the parties or their representatives after the
17
March 15, 2010 email message from Glick to Relias. 16 Moreover, although Smith’s
March 5, 2010 letter only references terminating John’s placement at Orchard
Academy, it is undisputed that, on March 15, 2010, Defendant also terminated
John’s enrollment in the school district. R. 61 at 22 (Def. Add’l SOF, ¶ 1) (“John was
a student at ETHS until March 15, 2009, when John’s placement was terminated
for non-attendance and his parent’s non-cooperation, and he was disenrolled as a
student of ETHS.”) (emphasis added). Despite the fact that both Smith’s March 5
letter and Glick’s March 15 email expressed the need to have further discussions, no
meeting was ever held. Smith and Christine Miksis both testified that they did not
pursue a meeting with each other because, among other things, John by then had
been disenrolled from the school district.
3
PACE’S DENIAL OF JOHN’S APPLICATION AND HIS
ENROLLMENT IN ELSA
Per the Settlement Agreement, John applied to attend the PACE program
sometime in October 2009. R. 52 at 19 (Def. SOF, ¶ 71). PACE denied John’s
application for admission on or about February 20, 2010, approximately three
weeks before John was disenrolled from the school district. Plaintiffs allege that
Defendant played a role in PACE’s rejection of John’s application. Defendant denies
that allegation. 17
Although the parties do not mention any further communications, it seems
unlikely that Defendant’s attorney did not at least respond to Plaintiffs’ email.
16
There is only indirect evidence to support Plaintiffs’ allegation, consisting of
Christine Miksis’s testimony about timing and things that were said to her during
her interactions with PACE personnel. See R. 49-4 at 98-101. In addition, there is
evidence of a possible motive for Defendant to have interfered with John’s PACE
17
18
John’s parents did not notify Smith about PACE’s denial of John’s
application, but Smith admitted she learned about it at some point after John’s
enrollment in the school district had terminated on March 15, 2010. R. 49-7 at 62.
Smith testified that she did not call a meeting to discuss alternative placements
after she learned about PACE’s rejection of John’s application because she “hadn’t
even been notified that he had applied.” R. 49-7 at 62. She also did not call a
meeting because, by the time she learned that John’s application had been denied,
he was already disenrolled from the school district and she believed Defendant had
no further obligations to him going forward unless and until he sought
reenrollment. Id. at 63-66. Christine Miksis testified that she did not personally
contact Defendant to discuss alternative placements after learning about PACE’s
rejection of John’s application for a number of reasons. First, she testified that she
already had discussed alternative placements with Smith after Smith informed her
at meetings that took place before she learned of PACE’s rejection of John’s
application. Smith testified that she first heard of the PACE program when she
reviewed the Settlement Agreement shortly after taking over as Director of Special
Education. Because she was not familiar with it, she did some investigation and
learned that it was not a state-approved program. R. 49-7 at 67. She therefore
contacted the program and was told by a representative that PACE “didn’t want to
be on the approved list.” Id. Of course, Defendant already had committed in the
Settlement Agreement to fund John’s placement at PACE without regard to its
status as a state-approved program. Christine Miksis testified that Smith and
Whitten told Plaintiffs at several meetings in December 2009 and early January
2010 that the school district was “not willing to pay for PACE, even if [John] was
accepted.” R. 49-4 at 102. Christine testified that she was tired of fighting with the
school district, and therefore was willing to consider another program. She testified
that she asked Smith and Whitten on more than one occasion to suggest an
alternative program, but the only program they named was one at Orchard
Academy. Christine testified that the suggested Orchard program was not a
residential program and was not otherwise comparable to PACE. Id.
19
application that Defendant would no longer support a PACE placement, and those
discussions had gone nowhere (see footnote 17). Second, Christine testified that
Smith terminated John’s enrollment in the school district around the same time as
Christine learned of PACE’s rejection, and, once that happened there was no point
in asking for a meeting. And third, Christine testified that Smith had essentially
cut off communication with Plaintiffs in this time period, as shown by the fact that
she refused to take a call from Christine about an injury John had received at
Orchard on the same day as Plaintiffs received the notice about PACE’s rejection.
See R. 49-4 at 104-14. In addition, Christine testified that her attorney’s statement
in his March 15 email that “we need to discuss other options” was the equivalent of
a request for a meeting to which Defendant never responded.
In May 2010, John’s parents applied for John to attend the Elmhurst
Learning and Success Academy (“ELSA”), believing that program (although
apparently not a residential program like PACE) was the most comparable program
to PACE in the area. Christine testified that her attorney informed Defendant’s
attorney about John’s application to ELSA. R. 49-4 at 115. Smith denies receiving
the information, however. John was accepted by ELSA and was still attending that
program at the time this lawsuit was filed. Smith testified that she did not learn of
John’s attendance at ELSA until around the time Defendant was contacted by
Plaintiffs’ attorney seeking reimbursement for the program just prior to the filing of
this lawsuit.
20
E.
THE PRESENT LAWSUIT
On October 9, 2012, Plaintiffs filed a “Complaint for Breach of Contract”
against Defendant in the Circuit Court of Cook County, Illinois. The complaint
alleges
that,
in
September
2009,
Defendant
made
a
number
of
“placement/transition planning decisions,” which “did not comply with either the
express terms” of the Settlement Agreement or the “transition plan” the parties had
agreed to in the meetings held in the spring of 2009. R. 1-1 at 3. The complaint also
alleges that Plaintiffs “sought assistance” from Defendant for an alternative
program to PACE, but that Defendant “refused to find an appropriate program” and
then “refused to support” John’s placement in the ELSA program. Id. at 4.
According to the complaint, John’s parents “have sustained financial loss as a result
of the defendant’s breach of the [S]ettlement [A]greement” in that “[t]hey have paid
for tuition at OCC [Oakton Community College] and ELSA,” “[t]hey have had to pay
for and/or provide transportation,” and “[t]hey have had to pay for other
reimbursable expenses.” Id. Accordingly, the complaint seeks “to enforce breach of
[the] [S]ettlement [A]greement[ ] under the IDEA” by permitting Plaintiffs to
recover for their out-of-pocket losses, as well as reasonable attorneys’ fees and costs
as provided for in the Act. Id. at 4-5.
Defendant responded to the state court complaint by removing it to federal
court, arguing that Plaintiffs’ breach of contract claims implicated rights under the
IDEA for which federal jurisdiction was proper. Upon its removal, the case was
originally assigned to Judge Guzman, who referred it to a magistrate judge for
21
possible settlement. Settlement was unsuccessful, and, on January 14, 2013, the
case was reassigned to the undersigned judge. Upon reassignment, the Court
immediately raised the question of the propriety of the removal. Defendant filed a
brief in support of removal jurisdiction, arguing that Plaintiffs’ claim for breach of
contract arose under federal law because of “the interrelationship between the
Settlement Agreement and the IDEA.” R. 26 at 2. Defendant further argued that
federal question jurisdiction existed because, in order to determine whether
Plaintiffs are entitled to the relief they seek, the Court must interpret and apply
principles from the IDEA. Id. at 3. Plaintiffs declined to file a written response to
Defendant’s jurisdictional arguments, stating orally on the record that they did not
oppose Defendant’s removal petition. Relying on the arguments and citations to
authority in Defendant’s removal brief, the Court found it had subject matter
jurisdiction, R. 27, and the case proceeded to discovery. More than a year later, the
parties filed cross-motions for summary judgment.
DISCUSSION
Plaintiffs’ motion for summary judgment argues that the evidence is
undisputed that Defendant breached the terms of the Settlement Agreement and
John’s agreed-to transition plan, first, by terminating the aides and supports John
had been receiving from Orchard Academy, which allowed him to take academic
classes at Oakton Community College, and, second, by terminating his placement in
Orchard and his enrollment in the school district, and by refusing to pay for his
placement in the ELSA program. Defendant’s cross-motion for summary judgment
22
argues that Plaintiffs’ claims should be denied as a matter of law, first, because
Plaintiffs failed to comply with the IDEA’s requirement for exhaustion of
administrative remedies, and second, because John’s parents failed to cooperate
with Defendant’s efforts to provide John with a FAPE. The Court addresses these
summary judgment issues below, but, before doing so, the Court first must
reexamine the basis for federal jurisdiction over this dispute.
I.
SUBJECT MATTER JURISDICTION
“Federal courts are courts of limited jurisdiction. They possess only that
power authorized by Constitution and statute, which is not to be expanded by
judicial decree.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)
(internal citations omitted). Although the parties do not contest the Court’s exercise
of subject matter jurisdiction over Plaintiffs’ claims, “neither the parties nor their
lawyers may stipulate to jurisdiction or waive arguments that the court lacks
jurisdiction.” United States v. Tittjung, 235 F.3d 330, 335 (7th Cir. 2000); see
DeBartolo v. Healthsouth Corp., 569 F.3d 736, 740 (7th Cir. 2009) (“Subject-matter
jurisdiction is not an issue that can be brushed aside or satisfied by agreement
between the litigants.”); Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440,
444 (7th Cir. 2009) (“jurisdiction cannot be conferred by consent of the parties”)
(internal quotation marks and citation omitted).
The parties’ summary judgment arguments caused the Court renewed
concerns about the basis for its jurisdiction over this matter. Therefore, the Court
had an independent duty to look into the question. If in reexamining the
23
jurisdictional question the Court were to determine that subject matter jurisdiction
is lacking, the case would have to be remanded to state court. See 28 U.S.C. § 1447(c)
(“If at any time before final judgment it appears that the district court lacks subject
matter jurisdiction, the case shall be remanded.”). A remand would be required even
if it would impose a hardship on the parties. See Hartland Lakeside Joint No. 3 Sch.
Dist. v. WEA Ins. Corp., 756 F.3d 1032, 1036 (7th Cir. 2014) (“If this case is returned
to state court, it must start a new . . . and more than two years will have been lost.
But practical considerations never justify a federal court’s adjudication of a suit over
which it lacks subject-matter jurisdiction.”).
Defendant cites to “28 U.S.C. § 1400 et seq.,” 18 as the basis for this Court’s
jurisdiction. Since the statutory reference accords federal jurisdiction over copyright
and patent cases, the Court presumes Defendant intended to cite to the IDEA,
which is 20 U.S.C. § 1400 et seq. While the facts presented in the complaint appear
to give rise to a potential claim that Defendant’s actions denied John a FAPE and
thus violated the IDEA, the question is whether Plaintiffs have sought to recover on
that claim. Their complaint is titled “Complaint for Breach of Contract” and appears
to rest on alleged breaches of the Settlement Agreement. Moreover, in their
summary judgment briefing, Plaintiffs also at times appear to maintain that the
only claim they are asserting is for breach of the Settlement Agreement. See, e.g.,
R. 49 at 2 (“This is a very simple case involving a breach of [the] [settlement]
agreement by the defendant.”); see also R. 49 at 6; R. 72 at 14.
18
See R. 52 at 2 (Def. SOF, ¶ 6).
24
A.
JURISDICTION BASED ON BREACH OF AN AGREEMENT TO
SETTLE A FEDERAL CLAIM
If the only claim Plaintiffs are making is for breach of the Settlement
Agreement, the Court would not have subject matter jurisdiction. A settlement
agreement is a type of contract, and it is well established that a claim for breach of
contract generally does not give rise to federal question jurisdiction even if part of
the consideration for the agreement is dismissal of an earlier federal suit alleging
claims arising under federal law. See Kokkonen, 511 U.S. at 382 (“enforcement of the
settlement agreement is for state courts, unless there is some independent basis for
federal jurisdiction”); McCall-Bey v. Franzen, 777 F.2d 1178, 1189-90 (7th Cir. 1985)
(“there is no inherent federal jurisdiction to enforce agreements to settle federal
suits”). There is an exception for when jurisdiction is preserved in the original
lawsuit by the district court either “incorporat[ing] the agreement’s terms into the
dismissal order or expressly retain[ing] jurisdiction over the agreement.” T St. Dev.,
LLC v. Dereje & Dereje, 586 F.3d 6, 11 (D.C. Cir. 2009); see generally Jones v. Ass’n of
Flight Attendants-CWA, 778 F.3d 571, 573 (7th Cir. 2015); RE/MAX Int’l, Inc. v.
Realty One, Inc., 271 F.3d 633, 636 (6th Cir. 2001). But Judge Holderman did
neither of those things when he dismissed the first lawsuit. See John M., 05-CV6720, Dkt. # 108. 19
An example in the IDEA context where the terms of the settlement agreement
had been made part of the order of dismissal is Fortes-Cortes v. Garcia-Padilla, 128
F. Supp. 3d 458, 466 (D.P.R. 2015), wherein the court held that it had jurisdiction to
entertain a claim for violation of the agreement.
19
25
B.
FEDERAL QUESTION JURISDICTION BASED ON THE IDEA
Plaintiffs contend that, notwithstanding the principles discussed above, the
IDEA confers federal court jurisdiction to enforce settlement agreements resolving
an IDEA claim. Plaintiffs rely on two provisions of the IDEA, one that applies to
enforcement of settlement agreements reached during the IDEA-prescribed
mediation process, and one that applies to enforcement of settlement agreements
reached during the IDEA-mandated “resolution” process. 20 These statutory
provisions, however, provide for jurisdiction to enforce settlement agreements, and
Plaintiffs do not seek enforcement; they seek damages for breach of the Settlement
Agreement. See Lara v. Lynwood Unified Sch. Dist., 2009 WL 2366454, at *3 n.4
(C.D. Cal. July 29, 2009) (“IDEA’s jurisdictional grant applies to ‘enforcement’ not
‘breach’ of settlement agreements”). Moreover, even if “enforcement” of a settlement
agreement includes damages for past violations of the agreement, see Kokkonen, 511
U.S. at 378 (referring to “[e]nforcement of [a] settlement agreement . . . whether
through award of damages or decree of specific performance”), several courts have
recognized that, according to its plain language, these statutory provisions confer
jurisdiction on federal district courts only to enforce settlement agreements that are
See 20 U.S.C. § 1415(e)(2)(F) (“In the case that resolution is reached to resolve the
[due process] complaint through the mediation process, the parties shall execute a
legally binding agreement that sets forth such resolution and that . . . is enforceable
in any State court of competent jurisdiction or in a district court of the United
States.”); 20 U.S.C. § 1415(f)(l)(B)(i) and (iii) (“Prior to the opportunity for an
impartial due process hearing under subparagraph (A), the local educational agency
shall convene a meeting with the parents . . . In the case that a resolution is reached
to resolve the complaint at a meeting described in clause (i), the parties shall
execute a legally binding agreement that is . . . enforceable in any State court of
competent jurisdiction or in a district court of the United States.”).
20
26
made in the IDEA mediation or resolution sessions. See S.T. v. Jersey City Bd. of
Educ., 2016 WL 4941993 (D.N.J. Sept. 14, 2016); L.M. v. Lower Merion Sch. Dist.,
2011 WL 71442, *3 (E.D. Pa. Jan. 7, 2011) (citing cases); see also H.C. ex rel. L.C. v.
Colton-Pierrepont Cent. Sch. Dist., 341 Fed. App’x 687, 690-91 (2d Cir. 2009)
(remanding to the district court to determine the existence of subject matter
jurisdiction where it did not appear that the settlement agreement had been
entered into as part of either a mediation or resolution session).
The Settlement Agreement in this case was not reached by means of either a
mediation or a resolution session, as defined under the IDEA. 21 Defendant
acknowledged as much in its jurisdictional brief filed when the case was first
transferred to this Court. See R. 26 at 2 n.1. Nevertheless, Defendant argued in
court that even though these provisions are not directly applicable to this case, it
could be inferred from them that Congress intended federal court jurisdiction to exist
for purposes of enforcing other types of IDEA settlement agreements. The Court did
not address that argument at the time, but will do so now.
The Court must “begin with the fundamental principle that federal courts are
courts of limited jurisdiction,” and, therefore, jurisdictional statutes cannot be
The mediation and resolution sessions referenced in the IDEA take place at the
administrative level and are accompanied by specific procedural requirements. For
example, where parties opt for mediation, they must meet with “a qualified and
impartial mediator who is trained in effective mediation techniques.” 20 U.S.C.
§ 1415(e)(2)(A)(iii). Conversely, if parties to an IDEA complaint chose the resolution
session, the parties must, among other requirements, meet “within 15 days of
receiving notice of the parents’ complaint.” 20 U.S.C. § 1415(f)(l)(B)(i)(I). Thus, even
if the Settlement Agreement was entered into as a result of a mediation or
settlement conference held in the first lawsuit (and there is no indication that it
was), it still would not fall under the two specific provisions in question.
21
27
construed “any broader than their language will bear.” In re Application of Cnty.
Collector of Cnty. of Winnebago, Ill., 96 F.3d 890, 895 (7th Cir. 1996). The Court
agrees with Defendant that there is no apparent justification for allowing federal
court enforcement of IDEA settlement agreements entered into as part of either the
administrative mediation or resolution processes but not other IDEA settlement
agreements. But the Court is unable to find any authority to support the view that it
can assert federal jurisdiction based on an implied statutory jurisdiction-conferring
provision. 22
As one court explained, while the exercise of jurisdiction over other types of
settlement agreements in IDEA cases might be “a logical extension” of the IDEA
jurisdictional provisions, “it is not the role of the courts to append new provisions to
There is some support for finding an implied jurisdictional provision based on a
line of cases addressing federal jurisdiction to enforce EEOC conciliation and predetermination agreements under Title VII. In those cases, courts (including the
Seventh Circuit) have concluded that, even though Title VII does not explicitly
provide the EEOC with authority to seek enforcement of conciliation or predetermination agreements in federal court, it would undermine Congress’
commitment to the conciliation and settlement processes to deprive the EEOC of a
federal forum in which to enforce such agreements. See E.E.O.C. v. Liberty Trucking
Co., 695 F.2d 1038, 1042-43 (7th Cir. 1982); see also E.E.O.C. v. Henry Beck Co., 729
F.2d 301, 305-06 (4th Cir. 1984); Eatmon v. Bristol Steel & Iron Works, Inc., 769
F.2d 1503, 1511 (11th Cir. 1985); E.E.O.C. v. Safeway Stores, Inc., 714 F.2d 567,
571-72 (5th Cir. 1983). But this line of cases predates Kokkonen, and also applies to
cases where the EEOC is the party seeking enforcement, see Hunter v. Ohio
Veterans Home, 272 F. Supp. 2d 692, 696 (N.D. Ohio 2003) (“[t]he involvement of
the EEOC is a differentiating characteristic”). In addition, it appears that the
principle on which these courts relied would not be extended to a settlement
agreement, like this one, resolving a federal lawsuit. See Langley v. Jackson State
Univ., 14 F.3d 1070, 1073 (5th Cir. 1994) (“[W]e cannot find[ ] any indication that
Congress has established an administrative structure evidencing its intent to
provide a federal forum for private parties to enforce settlement agreements ending
discrimination disputes after a lawsuit has been filed. Consequently, our decision in
Safeway is not on point.”).
22
28
statutes whenever doing so might comport with some of Congress’s goals.” Bowman
v. Dist. of Columbia, 2006 WL 2221703, *2 (D.D.C. 2006) (internal quotation marks
and citation omitted). “Had Congress intended that all [IDEA] settlement
agreements . . . be enforceable in federal court, it could have easily adopted a
provision to that effect.” Traverse Bay Area Intermediate Sch. Dist. v. Mich. Dep’t of
Educ., 2007 WL 2219352, *7 (W.D. Mich. July 27, 2007) (emphasis in original),
aff’d, 615 F.3d 622 (6th Cir. 2010). 23 “The language [of § 1415(e)(2)(A)(iii) and
§ 1415(f)(l)(B)(i)(I)] is not ambiguous, nor would its literal application produce
absurd or unjust results. Consequently, there is no reason to go beyond the
application of the law as written.” Bowman, 2006 WL 2221703, at *2. Accordingly,
the Court holds that the IDEA itself does not confer federal court subject matter
jurisdiction over Plaintiffs’ claim for breach of the Settlement Agreement because
the Settlement Agreement was not entered into as a result of either an IDEA
mediation or resolution session.
See Lamie v. U.S. Tr., 540 U.S. 526, 542 (2004) (“If Congress enacted into law
something different from what it intended, then it should amend the statute to
conform to its intent. It is beyond our province to rescue Congress from its drafting
errors, and to provide for what we might think . . . is the preferred result.”) (internal
quotation marks and alteration omitted); see also Mark C. Weber, Settling
Individuals With Disabilities Education Act Cases: Making Up Is Hard To Do, 43
LOY. L.A. L. REV. 641, 663-64 (2010) (hereinafter cited as “Weber, Settling IDEA
Cases”) (noting that “the present legal basis” for federal subject matter jurisdiction to
enforce an IDEA settlement agreement other than one falling under either
§ 1415(e)(2)(F) or § 1415(f)(1)(B) is “shallow,” and that, as a result, “[a]n amendment
to IDEA to create the jurisdiction would appear to be in order”).
23
29
C.
FEDERAL QUESTION JURISDICTION BASED ON AN EMBEDDED
ISSUE OF FEDERAL LAW
Given that the IDEA does not confer federal court jurisdiction over Plaintiffs’
breach of contract claim and that Plaintiffs have not and cannot allege that
jurisdiction is properly fixed in this Court based on the diverse citizenship of the
parties (28 U.S.C. § 1332), the Court must consider whether there is any other basis
for it to continue to assert subject matter jurisdiction over Plaintiffs’ claims seeking
recovery for breach of the Settlement Agreement. 24 In arguing in favor of federal
court jurisdiction, Defendant’s brief in support of removal jurisdiction relied
The Court notes that the question of subject matter jurisdiction over Plaintiffs’
claims for breach of the Settlement Agreement does not turn on the IDEA issue
raised by Defendant’s summary judgment motion of whether Plaintiffs were
required to exhaust their administrative remedies before filing a lawsuit asserting
breach of the Settlement Agreement. Failure to exhaust required administrative
remedies is an affirmative defense. See Mosely v. Bd. of Educ. of City of Chi., 434
F.3d 527, 533 (7th Cir. 2006) (“A failure to exhaust is normally considered to be an
affirmative defense . . . and we see no reason to treat it differently here [under the
IDEA].”) (internal citations omitted). And it is well established that an affirmative
defense cannot be the basis for federal court jurisdiction. See Vorhees v. Naper Aero
Club, Inc., 272 F.3d 398, 402 (7th Cir. 2001) (“A case arises under federal law
within the meaning of § 1331 only when the claim for relief depends in some way on
federal law, unaided by anything alleged in anticipation or avoidance of defenses
which it is thought the defendant may interpose.”) (internal quotation marks and
citation omitted). Thus, courts have remanded cases to state court where school
districts have removed based on an anticipated defense of failure to exhaust
administrative remedies, when the plaintiffs did not purport to rely on the IDEA for
their claims. See, e.g., A.K. v. N. Burlington Reg’l Sch. Dist., 2012 WL 295443, at *4
(D.N.J. Feb. 1, 2012) (remanding suit bringing challenge to school district’s actions
under state statute, and holding that “[w]hether or not Plaintiff must first exhaust
IDEA administrative remedies before seeking the requested equitable relief raises a
defense which . . . cannot create federal jurisdiction”); Kalbfleisch v. Columbia Cmty.
Unit Sch. Dist. Unit No. 4, 644 F. Supp. 2d 1084, 1088 (S.D. Ill. 2009) (remanding to
state court after concluding that “the only way the IDEA will enter into this case, if
at all, is by way of a defense, e.g., that . . . Carter, through his parents, must first
have recourse to administrative proceedings to determine what a FAPE is on the
facts of this case before pursuing a remedy in court”).
24
30
primarily on R.K., ex rel. T.K. v. Hayward Unified School District, 2007 WL
2778702 (N.D. Cal. Sept. 21, 2007). See R. 26. In R.K., the court stated that it had
federal jurisdiction over a claim to declare rights under an IDEA settlement
agreement because “the purpose of the Settlement Agreement was to resolve the
parties’ disputes regarding Plaintiff’s special education and related services.” Id. at
*6. The court further explained that the settlement agreement in that case
“incorporates terms specific to the IDEA, such as FAPE and IEP,” and that the court
“would have to refer to the IDEA to determine whether the parties complied with
their respective obligations under the Settlement Agreement.” Id. (citing Hansson v.
Norton, 411 F.3d 231, 235 (D.C. Cir. 2005), for the proposition that, “when a
settlement agreement incorporates substantive provisions of federal law such that
enforcement of the agreement requires the interpretation and application of federal
law,” a claim to enforce the settlement agreement arises under federal law).
In the first place, the above-quoted portion of the R.K. opinion is dicta; the
court already had determined that 20 U.S.C. § 1415(f)(l)(B) conferred subject matter
jurisdiction in that case because the settlement agreement in question had been
entered into as a result of an IDEA mediation session. Moreover, the jurisdictional
principle alluded to by the R.K. court—often referred to as jurisdiction arising out of
an “embedded” federal claim 25—has been clarified and limited by the Supreme
Court. Outside the area of complete preemption (which does not apply in the IDEA
See Ne. Rural Elec. Membership Corp. v. Wabash Valley Power Ass’n, Inc., 707
F.3d 883, 891 (7th Cir. 2013) (federal jurisdiction may exist where a “decisive
question of federal law” is “embedded in [the] state law cause of action”) (citing
Smith v. Kansas City Title & Trust Co., 255 U.S. 180 (1921)).
25
31
context 26), the Seventh Circuit has noted that “the existence of a federal issue” in a
complaint that relies on state law is “rarely” sufficient to allow removal of a state
complaint to federal court. Hartland Lakeside Joint No. 3 Sch. Dist., 756 F.3d at
1033 (emphasis added). The Supreme Court applies a four-part test to determine
whether federal jurisdiction based on an embedded question of federal law is
appropriate. See Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S.
308, 314 (2005). The parties have not addressed the Grable test, but the Court has
little difficulty concluding that it cannot be satisfied here. 27
See Charlie F., ex. rel Neil F. v. Bd. of Educ. of Skokie Sch. Dist. 68, 98 F.3d 989,
991 (7th Cir. 1996); Delgado v. Edison Twp. Bd. of Educ., 2014 WL 5761412, at *4
n.3 (D.N.J. Nov. 5, 2014); Kalbfleisch, 644 F. Supp. 2d at 1089.
26
The test asks whether the state law claim (1) “necessarily raise[s] a stated federal
issue,” (2) that is “actually disputed” (3) “and substantial,” and which (4) “a federal
forum may entertain without disturbing any congressionally approved balance of
federal and state judicial responsibilities.” Grable, 545 U.S. at 314. A finding that
Defendant breached the Settlement Agreement does not require a determination
that Defendant violated the IDEA because the alleged duties Defendant owed to
John and his parents under the IDEA may also constitute contractual duties that
exist “separately and concurrently” under the Settlement Agreement. A.K., 2012
WL 295443, at *4 (holding there was no federal jurisdiction under the IDEA where
plaintiff claimed the defendant’s actions breached its duties to the plaintiff under a
state anti-discrimination statute). While it is possible that enforcement of an IDEA
settlement agreement might require resolution of issues regarding the parties’
rights and obligations under the IDEA, where, for example, the settlement
agreement in question incorporates or adopts those statutory rights and obligations
as the parties’ contractual obligations, the Settlement Agreement in this case does
not define the parties’ contractual rights and obligations by reference to their
respective statutory rights and obligations under the Act. See R. 52-6 at 6-9.
Moreover, even if the Settlement Agreement had defined the parties’ contractual
duties by their duties under the IDEA, “[t]he creation of the duty by itself is
insufficient to confer federal question jurisdiction on an action.” Reuther v. Shiloh
Sch. Dist. No. 85, 2008 WL 191195, at *3 (S.D. Ill. Jan. 18, 2008) (citing Merrell
Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 817 (1986)). Rather, Plaintiffs’ claim
for breach of the Settlement Agreement also would have to satisfy the additional
requirements of the Grable test, which it does not. See Empire Healthchoice
27
32
D.
SUPPLEMENTAL JURISDICTION
The only other basis for federal jurisdiction over Plaintiffs’ claim for breach of
the Settlement Agreement is supplemental jurisdiction. See 28 U.S.C. § 1367(a) (in
an action for which the court has federal question jurisdiction, court may also
exercise jurisdiction over any state law claims that are so related to the federal
claims “that they form part of the same case or controversy”). As previously noted,
Plaintiffs have alleged facts that could give rise to an alternative claim for violations
of the IDEA independent of their claim for breach of the Settlement Agreement. The
question remains, however, whether they are asserting that alternative claim. 28
Assurance, Inc. v. McVeigh, 547 U.S. 677, 700 (2006) (the federal element in a state
law claim “qualifie[s] as ‘substantial’” only when “its resolution [is] both dispositive
of the case and would be controlling in numerous other cases” because it is a “‘pure
issue of law’ . . . ‘that could be settled once and for all’”; in contrast, “fact-bound and
situation-specific” issues of federal law are not sufficient to establish federal arisingunder jurisdiction) (emphasis added) (quoting Grable, 545 U.S. at 313); see also
Gunn v. Minton, 133 S. Ct. 1059, 1066 (2013) (“[I]t is not enough that the federal
issue be significant to the particular parties in the immediate suit; that will always
be true when the state claim ‘necessarily raise[s]’ a disputed federal issue, as Grable
separately requires. The substantiality inquiry under Grable looks instead to the
importance of the issue to the federal system as a whole.”).
See Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) (plaintiffs are “the
master” of their complaint and they therefore can “avoid federal jurisdiction” by
choosing to rely exclusively on state law); Merrell Dow Pharm. Inc., 478 U.S. at 809
n.6 (“Jurisdiction may not be sustained on a theory that the plaintiff has not
advanced.”); Pan Am. Petroleum Corp. v. Superior Ct. of Del. In & For New Castle
Cnty., 366 U.S. 656, 663 (1961) (a plaintiff who has both federal and state causes of
action may choose to ignore the federal claims and pursue only the state claims in
state court, and it is “immaterial . . . that the plaintiff could have elected to proceed
on a federal ground”); see, e.g., Chambers v. Cincinnati Sch. Bd., 2014 WL 1909996,
at *3 (S.D. Ohio May 13, 2014) (holding that the court did not have subject matter
jurisdiction “where Plaintiff simply asserts that IDEA violations establish a breach
of duty underlying state law tort claims”); Delgado, 2014 WL 5761412, at *4
(“Plaintiff makes reference to N.J’s IEP not to establish a claim under the IDEA,
but rather to provide a factual basis for the alleged personal injuries, civil
28
33
To answer that question, the Court looks to the allegations of the complaint.
See In re Application of Cnty. Collector of Cnty. of Winnebago, Ill., 96 F.3d at 895
(stating the “well-pleaded complaint” rule). Plaintiffs allege: (1) that Defendant had
a legal duty under the IDEA “to provide John Miksis with a free appropriate public
education,” R. 1-1 at 2 (¶ 4); (2) that, in addition to the Settlement Agreement,
Defendant “agreed to a ‘transition plan’ [a copy of which is attached to the
complaint] to address John’s post-high school development,” id. at 3 (¶ 8); (3) that,
after John started at Orchard Academy, Defendant “ignored the parents’ objections
and disagreements” to Defendant’s “various placement/transition decisions,” id.
(¶ 11); (4) that, in addition to not complying with the terms of the Settlement
Agreement, Defendant also failed to comply with the “express terms of the . . .
transition plan,” id. (¶ 12); and (5) that, “[a]fter the [S]ettlement [A]greement was
written, the parents enrolled John at Oakton Community College to take various
academic courses as per the transition plan,” id. at 4 (¶ 14) (emphasis added); see
also R. 72 at 12 (arguing that “Defendant’s actions violated the law” in addition to
the settlement agreement) (all caps omitted). These allegations can be construed as
violations, and discrimination visited upon N.J. by Defendant. . . . A fair reading of
the Complaint demonstrates that plaintiff has pled state law tort claims. Those
claims properly belong in state court.”); A.K., 2012 WL 295443, at *4 (remanding
case to state court based on lack of federal jurisdiction over IDEA-related claims,
holding that, “[w]hile it may be possible that Plaintiff's allegations regarding his IEP
could give rise to a cause of action under the IDEA, Plaintiff has chosen not to state
such a claim or pursue a theory of liability predicated on the IDEA”) (emphasis in
original); Reuther, 2008 WL 191195, at *4 (finding no federal question jurisdiction
where the plaintiffs “advance federal law solely as the creator of the duties owed
[the student]” and “the theories upon which their claims are based are solely state
tort law”).
34
stating a claim under the IDEA for failure to comply with the agreed-to transition
plan resulting in a denial of a FAPE. See, e.g., Sch. Bd. of Lee Cnty., Fla. v. M.M. ex.
rel M.M., 348 Fed. App’x 504, 511 (11th Cir. 2009) (allegation that a school board
had breached the provisions of a settlement agreement that had resulted from an
IDEA due process hearing was “also primarily a challenge relating to the provision
of a FAPE”); Pedraza v. Alameda Unified Sch. Dist., 2007 WL 949603, at *4 (N.D.
Cal. Mar. 27, 2007) (plaintiff alleges that the defendant’s “failure to provide the
services and reimbursement agreed upon in the settlement agreement resulted in a
denial of FAPE, which constitutes a violation of the IDEA”).
In sum, if Plaintiffs had decided not to invoke their federal rights, their claims
would belong in state court. But it appears that Plaintiffs are proceeding with both
state and federal claims (notwithstanding that Plaintiffs have on occasion argued
inconsistently that this case presents only a simple breach of contract claim).
Accordingly, the Court finds that it has federal question jurisdiction over Plaintiffs’
IDEA claims, and supplemental jurisdiction over Plaintiffs’ state law claims for
breach of the Settlement Agreement.
II.
A.
SUMMARY JUDGMENT
STANDARD OF REVIEW
Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). The Court considers the entire evidentiary record and must view all
35
of the evidence and draw all reasonable inferences from that evidence in the light
most favorable to the nonmovant. Ball v. Kotter, 723 F.3d 813, 821 (7th Cir. 2013).
To defeat summary judgment, a nonmovant must produce more than “a mere
scintilla of evidence” and come forward with “specific facts showing that there is a
genuine issue for trial.” Harris N.A. v. Hershey, 711 F.3d 794, 798 (7th Cir. 2013).
Ultimately, summary judgment is warranted only if a reasonable jury could not
return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986).
The parties purport to set forth the material undisputed facts regarding their
post-settlement dispute in their Local Rule 56.1 Statements. Both sides contend
that the fact statement of the other side violates the Local Rule. The Court agrees
that the parties’ facts statements contain improper argument and are not in
compliance with the Local Rule for several other reasons as well. Rather than strike
those statements or punish either side with deemed admissions, however, the Court
has chosen to consider the statements, together with the record as a whole, in
determining whether disputed issues of fact preclude summary judgment in either
party’s favor. See Wilbern v. Culver Franchising Sys., Inc., 2015 WL 5722825, at *17
(N.D. Ill. Sept. 29, 2015).
36
B.
STATE LAW BREACH OF CONTRACT CLAIMS
Because the parties’ summary judgment arguments on Plaintiffs’ state law
claims are more easily resolved than their arguments regarding Plaintiffs’ IDEA
claims, the Court will address the state law claims first. 29
1.
WHETHER ADMINISTRATIVE EXHAUSTION APPLIES
Defendant’s primary argument for summary judgment is that Plaintiffs’
claims should be dismissed because Plaintiffs failed to exhaust their administrative
remedies. The exhaustion requirement is found in two separate provisions of the
IDEA. First, § 1415(i)(2)(A) provides that a cause of action may be brought for
violation of the IDEA by any party aggrieved by a final decision of a State
educational agency made after an impartial due process hearing, conducted
pursuant to subsection (f) of § 1415. See 20 U.S.C. § 1415(i)(2)(A). This provision has
been read as according a right to judicial review of a claim based on the IDEA only
after “all administrative proceedings are completed.” Honig v. Doe, 484 U.S. 305,
327 (1988) (citing to § 1415(e)(2), the predecessor to § 1415(i)(2)(A)); see also Jamie
S. v. Milwaukee Pub. Sch., 668 F.3d 481, 494 (7th Cir. 2012) (“Ordinarily, a plaintiff
In their summary judgment briefs, both parties fail to adequately distinguish
between a breach of contract theory of relief and an IDEA theory of relief. For
instance, a statement in a party’s brief might discuss a contractual law principle,
and, the very next sentence might bring up an IDEA principle. This mixing of legal
theories is inappropriate and made it difficult for the Court to determine the
relevant arguments on any of Plaintiffs’ claims. To avoid confusion and a waste of
further judicial resources, in the future the parties are to address Plaintiffs’ claims
under the IDEA separately from their breach of contract claims, keeping in mind
that legal arguments and evidence relevant to the former are not necessarily or
automatically relevant to the latter.
29
37
may not file an IDEA lawsuit without first exhausting available administrative
remedies.”).
The second exhaustion requirement is found in § 1415(l) of the IDEA, which
provides that:
Nothing in this chapter shall be construed to restrict or
limit the rights, procedures, and remedies available under
the Constitution, the Americans with Disabilities Act of
1990, title V of the Rehabilitation Act of 1973, or other
Federal laws protecting the rights of children with
disabilities, except that before the filing of a civil action
under such laws seeking relief that is also available under
this subchapter, the procedures under subsections (f) and
(g) shall be exhausted to the same extent as would be
required had the action been brought under this
subchapter.
20 U.S.C. § 1415(l). By virtue of § 1415(l), courts have held that the requirement of
administrative exhaustion applies not only to claims brought under the IDEA, but
also to non-IDEA claims brought to enforce the rights of children with disabilities
under any other federal law. In determining whether the exhaustion requirement of
§ 1415(l) should apply to a non-IDEA claim, the Seventh Circuit has explained that
courts should look to the “theory behind the grievance” to see if the IDEA’s process
was activated. Charlie F. ex. rel Neil F., 98 F.3d at 992. If the complaint “deals with
acts that have both an educational source and an adverse educational consequence,”
id. at 993, then exhaustion is required.
Defendant argues that, pursuant to § 1415(l), exhaustion is required for
Plaintiffs’ claims even if the theory of those claims is breach of the Settlement
Agreement. By its plain terms, however, § 1415(l) only applies to non-IDEA claims
38
brought under the Constitution or other federal law. It does not apply to state law
breach of contract claims such as Plaintiffs’ claims for breach of the Settlement
Agreement.
See
Fortes-Cortes,
128
F. Supp.
3d
at
465-66
(“[P]laintiff’s
transportation-reimbursement claim does not implicate the IDEA’s exhaustion
requirement. Properly viewed, that claim is not brought under the IDEA. It is,
rather, a request for enforcement of the stipulated order entered in Fortes-Cortes
I.”); C.B. v. Sonora Sch. Dist., 691 F. Supp. 2d 1123, 1147 (E.D. Cal. 2009) (“There is
no question that the IDEA’s exhaustion requirements are limited to claims for
violations of federal rights.”) (citing cases). 30
Again, Defendant relies on R.K., 2007 WL 2778702, this time for the
exhaustion requirement as applied to IDEA settlement agreements. But the R.K.
court specifically noted that exhaustion applied only to the plaintiff’s federal claims.
not to his state law claims. Id. at *5 n.4 (citing cases). Defendant incorrectly cites to
the result in that case, whereby the court ultimately applied exhaustion to a claim
for breach of a settlement agreement. The court did so, however, because it found
that the plaintiff’s claim for a declaration of rights under the settlement agreement
at issue in that case was in fact a federal, not state, law claim because that
agreement was entered into during an administrative proceeding over which
Congress has provided an enforcement mechanism. Id. at *6. As previously
See also Watson v. Rich Cent. High Sch., 2015 WL 1137658, at *3 (N.D. Ill. Mar.
10, 2015) (dismissing federal IDEA claim based on failure to exhaust and declining
to exercising supplemental jurisdiction over state law claims); Renguette v. Bd. of
Sch. Trs. ex rel. Brownsburg Cmty. Sch. Corp., 540 F. Supp. 2d 1036, 1045 (S.D. Ind.
2008) (dismissing federal claims for failure to exhaust and dismissing state law
claims on the merits).
30
39
discussed, the Settlement Agreement here was not entered into pursuant to a
mediation or resolution session, and therefore, the IDEA does not create an
enforcement mechanism for that agreement.
Defendant nonetheless argues that Plaintiffs’ breach of contract claim is
really an IDEA claim in disguise because Plaintiffs seek reimbursement for tuition
and other expenses, for compensatory education, and for attorneys’ fees. According
to Defendant, these remedies are only available under IDEA. But only some of the
remedies Plaintiffs seek, like compensatory education and attorneys’ fees, are only
available under the IDEA. For their state law breach of contract claim, Plaintiffs
are entitled to recover “an amount equivalent to the difference between the benefits
[they] actually received and those to which [they were] due under the Agreement.”
Roboserve, Inc. v. Kato Kagaku Co., 78 F.3d 266, 278 (7th Cir. 1996). While the issue
is not currently before the Court, it is likely that, under this contract measure of
damages, Plaintiffs at the very least would be able to recover the reimbursements
they seek for costs and expenses, such as tuition expenses for ELSA (assuming they
prove their breach of contract claim).
Finally, the Court disagrees with Defendant that cases other than R.K.
involving the issue of exhaustion and IDEA settlement agreements establish a
general rule of exhaustion for breach of IDEA settlement agreement claims. The
cases Defendant cites all deal with settlement agreements reached during the
administrative process, rather than an agreement, like the Settlement Agreement
here, entered into to resolve federal court litigation. Aside from the fact previously
40
discussed that, as a matter of statutory construction, IDEA’s exhaustion
requirement simply does not apply to Plaintiffs’ state law breach of contract claims,
the Court also cannot ignore the strong federal policy favoring the voluntary
resolution of disputes. See, e.g., Metro. Hous. Dev. Corp. v. Vill. of Arlington Heights,
616 F.2d 1006, 1013 (7th Cir. 1980). As aptly stated in Pesek v. Donahue, 2006 WL
1049969 (N.D. Ill. Feb. 9, 2006), “a settlement allows parties to resolve their disputes
by compromise, taking into consideration all relevant risks and costs. In a
settlement, each side gives up something . . . [to avoid] the risk of suffering its worst
case result. . . . A settlement reflects the parties’ mutual decision that a compromise
is preferable to the risk and uncertainty of trial. . . . Moreover, each side obtains
through settlement the benefits of immediacy—that is, a settlement ends the
litigation and the attendant disruption of it, rather than allowing it to continue for,
in some instances, years.” Id. at *4; see also Aro Corp. v. Allied Witan Co., 531 F.2d
1368, 1372 (6th Cir. 1976) (“Public policy strongly favors settlement of disputes
without litigation. . . . By such agreements are the burdens of trial spared to the
parties, to other litigants waiting their turn before over-burdened courts, and to the
citizens whose taxes support the latter.”); Johnson v. Hermanson, 582 N.E.2d 265,
267 (Ill. App. 1991) (“Public policy in Illinois favors settlements and dictates that,
absent fraud or duress, settlements once made should be final.”). 31
The same policy considerations would apply in the context of administrative
settlements, as the Third Circuit recognized in enforcing such a settlement against
the parents of a disabled child. See D.R. ex. rel M.R. v. E. Brunswick Bd. of Educ.,
109 F.3d 896, 901 (3d Cir. 1997) (“In this case, public policy plainly favors upholding
the settlement agreement entered between D.R.’s parents and the Board. We agree
31
41
Even if the Court disregards the fact that Defendant’s cases all involve
settlements of administrative claims as opposed to settlement of a federal lawsuit,
those cases still do not persuade the Court to adopt Defendant’s view that claims for
breach of IDEA settlement agreements are necessarily subject to administrative
exhaustion. Indeed, as one court has described it, the law in this area is “muddle[d].”
S. Kingstown Sch. Comm. v. Joanna S., 2014 WL 197859, at *9 (D.R.I. Jan. 14, 2014)
(citing Weber, Settling IDEA Cases, at 641-42 (“even though IDEA . . . has been
around since the 1970s, litigants are still without clear guidance about how the
mechanisms of settlement should work, what the settlement agreement ought to
look like, and what to do if either side of the dispute fails to live up to its
agreement”). The Court also notes that none of the cases Defendant cites are from
this circuit, and the only appellate decisions are non-precedential unpublished and
per curiam orders. Further, one case, F.H. ex rel. Hall v. Memphis City Schs., 2013
WL 4056360 (W.D. Tenn. Aug. 12, 2013), was reversed by the Sixth Circuit in a
published opinion shortly after the summary judgment briefing in this case was
completed. The Sixth Circuit held that, at least insofar as settlement agreements
entered into during a mediation session or through the resolution process are
concerned, Congress expressly provided that such agreements were “enforceable in
that reaching a settlement agreement during mediation, rather than during
litigation, does not lessen the binding nature of the agreement on the parties. When
the parties entered the settlement agreement at issue in this case, they entered a
contract. We will therefore enforce the agreement as a binding contract voluntarily
entered by both parties.”). The Third Circuit nevertheless limited its holding to the
facts of that case, leaving the door open to the possibility that, on other facts, public
policy considerations might weigh against enforcement of an administrative
settlement in the IDEA setting. Id. at 901 n.2.
42
state or federal court” which necessarily implies that no further exhaustion is
required. F.H. ex rel. Hall v. Memphis City Schs., 764 F.3d 638, 645 (6th Cir. 2014).
Finally, several of the cases cited by Defendant require administrative
exhaustion of entirely new and previously unexhausted IDEA claims that were
unrelated to the issues resolved by the settlement agreement. 32 While Plaintiffs’
specific IDEA claims in this case were not previously exhausted, they are related to
the exhausted claims at issue in the first lawsuit. Plaintiffs raised an arguably valid
point in the first lawsuit that, had the case not settled, those claims should have
been resolved without further administrative exhaustion because nothing in the
IDEA itself suggests that John’s post-senior years of IDEA-eligible secondary school
are to be treated any differently than his first four years, notwithstanding that the
parties agreed that his educational instruction in that period would take place in a
private placement setting as opposed to in the general curriculum at ETHS. See
W.L.G. v. Houston Cnty. Bd. of Educ., 975 F. Supp. 1317, 1329 (M.D. Ala. 1997)
(noting that court might be able to consider a student’s changed circumstances at
time of decision because the “need to provide full and realistic relief could override
the need for exhaustion,” and, that, in such circumstances, “the court would be
considering the changed or subsequent circumstances as only incident to a current,
viable, and already exhausted IDEA claim”). While Judge Holderman apparently
thought differently when he ruled on the mootness question, the fact remains that
See, e.g., T.L. ex rel. G.L. v. Palm Springs Unified Sch. Dist., 304 Fed. App’x 548,
549 (9th Cir. 2008) (unpublished); R.P. and M.P., ex rel. K.P. v. Springdale Sch.
Dist., 2007 WL 552117, at *4, 7 (W.D. Ark. Feb. 21, 2007); Sarah Z. v. Menlo Park
City Sch. Dist., 2007 WL 1574569 at *7 & n.3 (N.D. Cal. May 30, 2007).
32
43
Defendant agreed in the settlement of the first lawsuit to resolve those issues
notwithstanding Judge Holderman’s mootness ruling.
Requiring administrative exhaustion of a claim for breach of a settlement
agreement to resolve a federal lawsuit “puts the aggrieved party literally back at
square one, having to litigate the case that was supposed to have been resolved.”
Weber, Settling IDEA Cases, at 664. In addition, requiring further exhaustion
creates uncertainty surrounding the enforceability of settlement agreements, and
the prospect of unenforceability encourages parties “to bide [their] time for so long
as [they are] benefited from doing so, and then breach the agreement with no fear of
sanction. The [breaching party] would have lost nothing. It would then face only the
same prospect of suit on the underlying [ ] charge it would have faced prior to its
entering the [settlement] agreement.” Safeway Stores, Inc., 714 F.2d at 573. The
other party to the agreement, “on the other hand, would have suffered serious
prejudice. . . . . Suit undertaking to prove [his or her claim] would have been
substantially delayed. Such delay would potentially result in difficulty in proving
violations of the Act. [Settlement], instead of being a means of enforcing the law,
could well become a dilatory tactic which could be used to make enforcement of [the
statute] less effective.” Id. 33
Defendant claims that the incentives actually work in the opposite direction. That
is, Defendant argues that not requiring exhaustion “would encourage parents to
enter into settlement agreements, ignore the agreements, and then sit back and
wait until their student has aged out of special education rights in order to file suit
and avoid IDEA’s administrative process.” R. 55 at 17; see also R. 75 at 8. This
argument does not make much sense to the Court. To begin with, it requires the
Court to make the illogical assumption that a parent would purposefully allow his
33
44
Because the Court believes that, as a matter of statutory interpretation, the
administrative exhaustion requirement does not apply to Plaintiffs’ state law
breach of contract claims, it does not need to even consider the policies behind the
administrative exhaustion doctrine. Nevertheless, it is worth noting that those
policies would not be furthered by requiring exhaustion here. To decide whether
Defendant breached this Agreement, the Court need not, as Defendant contends,
“decide whether the marking of ‘Community College’ on John’s Transition Plan
required Orchard Academy to support John’s courses at Oakton.” R. 60 at 2. The
issue instead, is whether Defendant agreed to provide the services in question by
virtue of the language in the Agreement stating that “[a]s discussed during [the
May 15, 2009 IEP meeting], . . . John will attend Orchard Academy . . . in its
intensive individualized transition program.” R. 1-1 at 7. Similarly, the Court need
not, as Defendant contends, “understand and interpret the impact of John’s parent’s
failure to contest the May 15, 2009 IEP within ten days of receipt.” R. 60 at 2.
Instead, the issue is whether the services at issue were a part of the Agreement
or her child to be deprived during his or her school years of educational services to
which the parent believes the child is entitled so that the parent could wait until
after the child is no longer in school to sue for those services. In addition, the Court
does not agree with Defendant that there is a risk that parents will “flagrantly
ignore the agreement[ ].” R. 75 at 8. IDEA settlement agreements typically impose
on-going duties only on the school district. The parents’ consideration for such
agreements is to release the school district from their claims under the IDEA, and it
is difficult to see in what way parents might “flagrantly ignore” their release. In any
event, it would not be rational for parents to “flagrantly ignore” the agreement
while waiting for their child to finish school, so that they could later file a lawsuit
without having first exhausted their administrative remedies. If they did that, they
might have avoided the administrative exhaustion requirement but they probably
would not be able to recover in their lawsuit, because they would have breached the
settlement agreement.
45
and, if they were, whether Defendant failed to provide them. No special expertise
interpreting and applying the IDEA or additional fact-finding regarding John’s
abilities and educational goals is required to address these contractual issues.
Instead, the Court’s job is simply to interpret and apply the Agreement. See H.C. ex
rel. L.C., 341 Fed. App’x at 690 (“This enforcement dispute is purely a matter of
determining defendant’s obligation under the settlement agreement. . . . As such,
resolution of the dispute will not benefit from the ‘discretion and educational
expertise [of] state and local agencies, [or the] full exploration of technical
educational issues’ related to the administration of the IDEA.”) (citation omitted);
Weber, Settling IDEA Cases, at 664 (actions to enforce settlement agreements
usually “will hinge on the straightforward question whether the parties have or have
not complied with the letter of the agreement”); cf. J.K. v. Council Rock Sch. Dist.,
833 F. Supp. 2d 436, 448-49 (E.D. Pa. 2011) (enforcement of settlement agreements
may determine if parents have waived rights under the IDEA or if school districts
have contracted to provide benefits above those that the IDEA requires, but those
issues are not within the scope of what the hearing officer is given the task of
deciding, i.e., the “fundamental question of whether a child received a ‘free
appropriate public education’”).
In addition, one of the most important reasons for requiring administrative
exhaustion in the IDEA context—the “inherently changing nature” of what
constitutes a FAPE under the circumstances, W.L.G., 975 F. Supp. at 1328—also is
not a concern here. The parties determined what an appropriate secondary
46
education would be for John once and for all when they entered into the Settlement
Agreement, which was intended to resolve all aspects of John’s secondary school
education through the date on which his eligibility for services and aides under the
IDEA was to expire. There simply is no need to revisit John’s IEP in order to
conclude that Defendant failed to abide by the terms of the Settlement Agreement.
For this reason, as well as the reasons previously discussed, the Court concludes
that Plaintiffs are not required to exhaust their administrative remedies before
bringing suit to recover for breach of the Settlement Agreement.
2.
WHETHER
DEFENDANT
SETTLEMENT AGREEMENT
a.
BREACHED
THE
ORCHARD AIDES AND SUPPORTS FOR
COMMUNITY COLLEGE CLASSES
Plaintiffs’ first breach of contract claim involves Defendant’s termination of
Orchard aides and supports for John’s academic classes at Oakton Community
College. 34 The Court finds that the following facts are both undisputed and relevant
to that claim: (1) the parties reached an agreement in the spring of 2009 that John
would be enrolled in Orchard Academy’s “intensive individualized” program for the
upcoming 2009-2010 school year; (2) that agreement was memorialized in the
Settlement Agreement executed on July 17, 2009; (3) Smith was not involved in the
It appears that Plaintiffs may be seeking reimbursement not only for the aides
and supports the parents provided on their own for John to attend community
college classes but also for the cost of tuition for those classes. It is not entirely clear
to the Court what Plaintiffs’ theory of recovery is for the Oakton tuition expenses,
and, in fact, Christine Miksis testified at her deposition that the parents were
responsible for paying the tuition costs at Oakton. Nevertheless, the issue need not
be resolved at this time.
34
47
negotiation or execution of that Agreement as she did not replace Gottlieb as the
Director of Special Education until shortly before the Agreement was executed;
(4) after the Settlement Agreement was signed, John’s parents enrolled John in
academic classes at Oakton Community College and notified Orchard Academy
about that enrollment; (5) at the beginning of the school year, Orchard Academy
provided John with transportation, a one-on-one aide, and tutoring support for
John’s classes at Oakton; (6) Smith learned about the community college classes and
the supports Orchard Academy was providing for those classes on or about
September 9, 2009, and informed Orchard Academy that Defendant had not agreed
to those things; (7) at Smith’s instruction, Orchard Academy terminated the
supports it had been providing John; (8) Smith sent John’s parents a letter informing
them that the Agreement did not provide for John to take community college classes
or for Oakton to provide transportation, academic tutoring, and a one-on-one aide for
those classes; and (9) John’s parents objected to Smith’s letter and Defendant’s
termination of Orchard Academy’s supports in a written letter notifying Defendant
that they believed Defendant’s actions violated the Settlement Agreement and that
they would be providing the terminated supports at their own expense.
The issue before the Court is whether the facts are undisputed that the
supports and aides in question were part of the agreed-to terms of the Settlement
Agreement. If they were, then Defendant breached the Agreement by directing
Orchard to terminate them. While it is apparent from the record that Smith believed
the Agreement did not provide for those aides and supports, it is unclear the basis
48
for her belief when she admittedly was not involved in the settlement process. Her
belief seems to have been based on the same argument Defendant puts forth in its
summary judgment briefs, which is that the Agreement does not refer to Oakton or
community college as being part of John’s educational plan for the 2009-2010 school
year; it only refers to Orchard Academy. See R. 49-4 at 75, 77. Defendant also points
out that the Agreement includes an integration clause, which states that “[t]his
Agreement contains all the terms and conditions agreed upon by the parties and no
provisions or requirements expressly determined herein may be amended, altered,
modified or canceled, except by express written instrument signed and dated by all
parties.” R. 49-3 at 4 (Settlement Agreement, ¶ 7).
“A binding completely integrated agreement discharges prior agreements to
the extent that they are within its scope.” RESTATEMENT (2d)
OF
CONTRACTS § 213.
“[A] writing’s completeness as measured against it remains a legal question to be
determined by the trial judge.” J&B Steel Contractors, Inc. v. C. Iber & Sons, Inc.,
642 N.E.2d 1215, 1219 (Ill. 1994). The Illinois Supreme Court has held that a
purchase order that “specifically referred to a telephone proposal that was to be
incorporated into the contract” was “clearly, on its face, incomplete.” Eichengreen v.
Rollins, Inc., 757 N.E.2d 952, 958 (Ill. App. 2001) (discussing J&B Steel Contractors,
642 N.E.2d at 1220-21). In those circumstances, “the parol evidence rule did not
preclude the plaintiff ‘from offering proof of terms allegedly agreed to during the
telephone proposal that [were] consistent with and would supplement, but not
contradict, the purchase order.’” Id. (quoting J&B Steel Contractors, 642 N.E.2d at
49
1221); see also In re Peregrine Fin. Group, Inc., 487 Bankr. 498, 511 (Bankr. N.D. Ill.
2013) (“Even when a contract contains a clear integration clause, parol evidence may
be admitted to explain ambiguous terms.”).
The introductory language to the paragraph of the Settlement Agreement that
deals with John’s placement at Orchard Academy states: “As discussed during
John’s Individual Education Plan (‘IEP’) meeting held by the parties on May 15,
2009 . . . .” R. 49-3 at 2. By this language, the parties appear to have incorporated
the specific details of John’s program at Orchard Academy that were agreed to at the
May 15, 2009 meeting. Thus, the parties’ dispute over the terms on which the first
lawsuit was settled cannot be resolved solely on the basis of what is stated in the
written agreement itself. By including language in that written document
referencing what was agreed to at the May 15, 2009 meeting, both parties “assumed
the risk” that the other side “would recollect the discussion [at the May 15, 2009
meeting] differently from how they did,” and they are “liv[ing] with the
consequences” of that decision now. Lynch, Inc. v. SamatMason Inc., 279 F.3d 487,
491 (7th Cir. 2002).
The only direct evidence in the current record on the issue of whether a
community college component to John’s Orchard Academy placement was agreed to
at the May 15, 2009 meeting is the deposition testimony of Christine Miksis, who
said that it was. 35 Defendant argues that Christine’s testimony should be ignored
Defendant does not present the testimony of Bob Gottlieb, who was Defendant’s
Director of Special Education at the time and led the May 15 meeting, or of any
other school personnel at that meeting. The only testimony of a witness who
35
50
because it is “self-serving,” but that argument, as Defendant itself admits, R. 75 at
21-22, is not a valid basis for disqualification. 36 Defendant also argues that
Christine’s testimony is only her “uncorroborated belief,” which is “not based on any
first-hand knowledge or experience” regarding the academic program at Orchard
and whether that program includes support for community college classes. R. 60 at
9. But Defendant conflates the question of how Orchard Academy officially defines
its “individualized intensive program” with the question of what was agreed to at the
meeting. The ultimate issue in this case is what was agreed to, and Bobrowski’s
testimony regarding the contents of Orchard’s “individualized intensive program” is
only a factor to consider in arriving at a decision as to what the agreement was.
Christine has personal knowledge relevant to what the parties agreed to because she
attended the May 15 meeting. In short, even assuming Plaintiffs are wrong about
what Orchard’s “individualized intensive program” consisted of, that error would
not necessarily require the trier of fact to conclude that no agreement was ever
reached for Orchard to provide the aides and supports in question. 37
attended the May 15 meeting presented by Defendant is that of Orchard’s Director,
Bobrowski. But the Court notes that nowhere in Bobrowski’s declaration does he
explicitly refute Christine Miksis’s testimony that community college classes were
part of the Orchard program discussed and agreed to at the May 15 meeting.
Instead, the declaration only implies that they were not. See R. 52-4 at 6-7
(Bobrowski Declaration, ¶ 21).
The Court is baffled by the distinction Defendant attempts to draw between
Christine Miksis’s testimony and Bobrowski’s testimony. See R. 75 at 22 n.12. Both
are self-serving. The Court finds that in both cases the testimony is relevant but not
dispositive for purposes of the parties’ respective summary judgment motions.
36
The Court also notes that the question of whether community college classes are a
part of Orchard’s intensive individualized program is a disputed one, which cannot
37
51
Defendant makes a number of other arguments for why the Court should
conclude that John’s program at Orchard did not include community college classes
and/or Orchard support for those classes. See R. 60 at 6-11. But most of those
arguments concern whether the transition plan or John’s IEP required Defendant to
provide John with the aides and supports at issue. While the transition plan and/or
applicable IEP documents might be relevant to the terms of the parties’ Settlement
Agreement, focusing solely on those documents ignores the core issue to be decided
under Plaintiffs’ breach of contract theory, which is whether the parties’ agreement
be resolved on summary judgment. First, while Bobrowski may be the only witness
with personal knowledge of what that program consists of, his declaration leaves
the door open on whether there could have been a community college component to
John’s enrollment in the intensive individualized program at Orchard. See R. 52-4
at 5 (¶ 15) (“Although Orchard students in rare circumstances have taken
community college courses, they have done so: (a) as a continuing learning or
education component specifically required by their IEP (the IEP is traditionally
authorized by their home school district); (b) as a component of the student’s
individualized Orchard program; and (c) after assessment and preparation by
Orchard staff.”); see also R. 60 at 6-7 (arguing that Orchard Academy’s program
“typically [does not] involve courses at outside institutions,” and admitting that
“from time to time students at Orchard have attended community college classes”)
(emphasis added). Moreover, Plaintiffs have presented Christine Miksis’s testimony
as evidence that Bobrowski’s declaration may be inconsistent with what he said at
the May 15 meeting. Plaintiffs also argue that the Orchard Academy brochure given
to them at the meeting supports Christine’s recollection of what Bobrowski and
others said at the meeting about Orchard’s program. Finally, the undisputed fact
that Orchard Academy did provide the community college aides and supports when
John first started the program (until Smith intervened), also supports Christine’s
testimony disputing Bobrowski’s current declaration. While Defendant argues that
Orchard Academy made a mistake when it did so, and that Bobrowski’s declaration
attests to that mistake, whether Bobrowski made a mistake is itself a disputed
issue of fact that cannot be resolved on summary judgment.
52
reached at the May 15 meeting and incorporated by reference into the Settlement
Agreement included those terms. 38
Defendant also ignores other evidence in the record that supports Christine
Miksis’s testimony that there was such an agreement. That evidence includes the
meeting notes from the March 27, 2009 meeting, 39 which contain an extensive
discussion regarding community college and John’s parents’ opinion that John
should continue his academic education the following year through courses taken at
Oakton. Although the other members of the IEP team expressed some skepticism
about whether John was ready to take classes at the community college, the notes
show that, before the meeting was adjourned, Gottlieb agreed to consider John’s
parents’ proposal so long as John’s academic abilities were assessed by a program
For instance, Defendant argues that “neither the law nor the transition plan
required ETHS to support John in actual community college courses,” R. 55 at 24,
but says nothing about whether the parties’ agreement did. Defendant also argues
that the agreement did not include transportation to community college classes
because a document drawn up to reflect John’s “transition plan” does not have a
check mark by the word “transportation” in the category of aides and supports to be
provided. Defendant can make that argument at trial, but the counter-argument is
that Plaintiffs understood that document as referring to transportation to and from
the Orchard facility. Christine Miksis testified that she understood the Orchard
program as including community college classes, and that transportation to and
from the Orchard facility to those classes was included as part of that component of
the program, much like transportation to and from a field trip is provided by the
school district even for students who are not otherwise entitled to transportation to
and from the school at the start and end of the school day.
38
Defendant argues that the meetings notes are hearsay and not admissible at
trial. The Court is not making an evidentiary ruling at this time regarding their
admissibility. But because Christine was present at those meetings and can testify
directly as to what was said, the Court can rely on the notes to buttress the
credibility of Christine’s testimony in deciding whether there is a disputed issue of
fact for trial. See footnote 42.
39
53
such as Orchard Academy. See R. 52-2 at 53-54. 40 Moreover, another member of the
IEP team (John Ostrowski, Defendant’s “Transition Coordinator”) told John’s
parents that he was aware of the fact that students in Orchard Academy’s program
sometimes took classes at Oakton (apparently to encourage John’s parents to agree
to the Orchard Academy placement, which they at first were skeptical of but later
Defendant argues that no agreement could have been reached regarding
community college because Orchard’s assessments had not yet been completed in
the fall of 2009 when John’s parents enrolled him in Oakton. Plaintiffs counter,
however, that the parties agreed that the educational supports and services John
was receiving at the time of the agreement (i.e., his senior year of high school)
would remain in effect until those assessments were completed. This last
requirement, Plaintiffs contend, is part of the written agreement, which states that
“[d]urging the period of Orchard Academy’s individual assessment of John, John
will receive those aid[e]s, including but not limited to speech and occupational
therapy, at the same level he received during the 2008-2009 school year (with the
exception of Adapted Physical Education, which will not be provided).” R. 49-3 at 2.
Defendant argues that community college classes do not constitute “aid[e]s,” within
the meaning of this provision. Had Defendant sat down to talk with the parents
over why they thought otherwise before acting precipitously to cut off the Orchard
aides and supports, it might have discovered the source of the confusion. According
to Christine, she understood from the May 2010 meeting that community college
already was a part of the Orchard program so that those classes fell under the
language in the Settlement Agreement referencing John’s placement at Orchard
Academy. The language in the Settlement Agreement referencing the aides and
supports that were to continue while John was being assessed included the one-onone aide and academic tutoring Orchard had been providing for those classes.
Christine testified that she understood those aides and supports were available at
Orchard because Bobrowski brought up the issue of a one-on-one aide and the
parties agreed John would have one. Christine did try to explain her position in the
email she sent to Smith, but instead of meeting in an attempt to understand the
other side’s position, the parties almost immediately locked horns over legal issues
such as whether either side had the right to make a “unilateral” placement decision,
whether a violation of John’s “stay-put” IEP had occurred, and whether the
opposing party had the burden of calling a meeting or filing an administrative
complaint. The parties continue to focus on these distracting statutory issues, when
the question for purposes of Plaintiffs’ breach of contract claim is whether there was
a mutual understanding along the lines of what Christine testified to at her
deposition.
40
54
did agree to). Id. at 54. While the meeting was continued until May without any
resolution of the community college question at that time, the March meeting is
relevant to an understanding of what was decided at the May 15 meeting.
Finally,
Plaintiffs
point
out
that
in
mid-August,
Christine
Miksis
communicated by email with Bobrowski about the community college classes, and
that at the start of the school year, an employee of Orchard, Sarissa Hahn,
communicated with John’s parents about the aides and supports Orchard would be
providing for John’s classes. This correspondence supports Plaintiffs’ position that
the Agreement reached by the parties at the May 15 meeting included Orchard
aides and supports for John’s academic courses at Oakton. At the very least, it
shows that Christine understood the Agreement in this way. It suggests, as well,
that Bobrowski also understood the Agreement in this way, because there is no
indication that, after receiving Christine’s email, he questioned Christine regarding
her expectation that Orchard would be providing aides and supports for John’s
community classes. What is more, Orchard Academy in fact did provide the aides
and supports for John’s academic classes at Oakton, until Smith intervened a week
or so into the school year and directed Bobrowski to cease doing so. 41
Bobrowski states in his declaration that he only provided the supports for John’s
attendance at community college because he supposedly “took Ms. Miksis at her
word that the community college courses were part of John’s required
programming.” R. 52-4 at 6 (Bobrowski Declaration ¶ 21). He further represents
that he “had no reason to disbelieve Ms. Miksis at that time.” Id. But that
statement rings somewhat hollow given that Bobrowski admittedly attended the
May 15 meeting to discuss the Orchard program. It is logical to assume that if
community college classes were not part of the plan discussed and agreed to at the
May 15 meeting then Bobrowski would have questioned Christine’s email or at least
41
55
A settlement agreement “is enforced just like any other contract.” Lynch, Inc.,
279 F.3d at 489. Moreover, “[o]ral settlement agreements are enforceable under
Illinois law if there is clearly an offer and acceptance of the compromise and a
meeting of the minds as to the terms of the agreement. The essential terms must be
definite and certain so that a court can ascertain the parties’ agreement from the
stated terms and provisions.” Dillard v. Starcon Int’l, Inc., 483 F.3d 502, 507 (7th
Cir. 2007). “It is long settled law that mutual assent is the first requisite to
formation of a contract. It is generally the objective manifestation of intent which
controls. It is only when there are no objective indicia of intent, or the subject
matter of the bargain is described in ambiguous terms that the court must look to
the subjective intent of the parties.” Caporale v. Mar Les, Inc., 656 F.2d 242, 244
(7th Cir. 1981). “Under the objective theory [of contract], intent to manifest assent
in Illinois is revealed by outward expressions such as words and acts. The parties do
not need to share the same subjective understanding as to the terms of the contract.
But there must be a meeting of the minds or mutual assent as to the terms of the
contract.” Sgouros v. TransUnion Corp., 817 F.3d 1029, 1034 (7th Cir. 2016)
(internal quotation marks and citations omitted). “A contract may be enforced even
though some contract terms may be missing or left to be agreed upon, but if the
essential terms are so uncertain that there is no basis for deciding whether the
agreement has been kept or broken, there is no contract.” Acad. Chi. Publishers v.
Cheever, 578 N.E.2d 981, 984 (Ill. 1991). A meeting of the minds sufficient to form
sought confirmation or further clarification from Defendant before providing the
disputed services.
56
an enforceable contract requires that the parties “assent[ed] to the same things in
the same sense on all essential terms and conditions.” Quinlan v. Stouffe, 823
N.E.2d 597, 604 (Ill. App. 2005).
The above test for whether an agreement existed between the parties must be
applied at the time they entered into the alleged settlement. Thus, the crucial issue
here is whether there was an actual meeting of the minds, i.e., both sides understood
the same thing, at the May 15 meeting. Neither party has sufficiently focused on
that issue. It is true, as Plaintiffs argue, that the only witness present at the May
15 meeting whose testimony is before the Court on summary judgment is Christine
Miksis. Plaintiffs therefore argue that they are entitled to summary judgment in
their favor on this issue. But the Court disagrees, for several reasons.
First, notes taken at the May 15 meeting indicate that a discussion took place
that suggests John’s parents may have abandoned their position from the March 27
meeting regarding John taking community college classes. 42 Second, the fact that
the Settlement Agreement itself does not specifically mention community college
classes, while not determinative for the reasons previously discussed, nonetheless
The notes indicate that Plaintiffs’ then-attorney, Michael Graham, stated that,
since the last meeting in March, John’s parents had “decided that Oakton is not
necessarily appropriate for John at this time.” R. 52-2 at 22. As Defendant itself
argues, however, the meeting notes are probably not admissible at trial. Graham
was not deposed, so the Court does not know what he would testify to if asked.
Christine testified at her deposition that the meeting notes do not accurately reflect
Graham’s comments. Nevertheless, the Court can consider Graham’s out-of-court
statement in deciding whether to deny summary judgment in Plaintiffs’ favor on the
theory that it is possible Defendant will be able to put the testimony in question
“into admissible form” by the time of trial. Estate of Thurman v. City of Milwaukee,
197 F. Supp. 2d 1141, 1146 (E.D. Wis. 2002).
42
57
creates a disputed fact issue as to whether those classes were an agreed-to part of
the settlement. Third, Christine’s deposition testimony was not specific enough to
establish that what she understood had been decided at the May 15 meeting was
also what Defendant understood had been decided at that meeting. Christine’s
subjective belief that community college classes were a part of the agreement is not
sufficient to establish a meeting of the minds. It may be that Christine is able to
testify to details about the meeting that will indeed show a meeting of the minds on
the topic. But her deposition testimony does not accomplish that result. Moreover,
even if she can testify to relevant facts to show a meeting of the minds, the
credibility of that testimony must be taken into account. 43
In sum, it is up to the trier of fact to decide whether there was a meeting of
the minds at the May 15 meeting regarding John’s enrollment in community college
classes and Orchard’s support for those classes. Therefore, summary judgment in
favor of Plaintiffs on their breach of contract claim regarding Orchard aides and
Apart from whether there was an actual agreement on the community college
question, Christine Miksis also seems to rely on an assumption that there had to be
an academic component to John’s program, and that community college was the
only place where John was going to get that academic component. As Christine
Miksis testified, the courses she enrolled John in were not college classes; they were
remedial classes designed to continue the academic component of John’s high school
education. While the Court sympathizes with the parents’ belief that John was
entitled to academic educational services in every year of his secondary school
education including his post-senior years, whether that is in fact a requirement
under the IDEA is not so obvious. As a result, John’s parents could not just assume
that it was part of the agreement. At least insofar as their breach of contract claim
is concerned, they will have to show that there was an actual meeting of the minds
that academic courses at Oakton were a component of John’s agreed-to program at
Orchard.
43
58
supports for community college classes would not be appropriate. If that issue is to
be resolved, it must be at trial.
b.
PACE/ELSA PROGRAM
Plaintiffs’ second breach of contract claim involves Defendant’s termination of
John’s placement at Orchard Academy and disenrollment in the school district for
nonattendance. The Court finds that the following facts are undisputed and relevant
to that claim: (1) in the fall of 2009, John both attended academic classes at Oakton
Community College and participated in Orchard Academy programs when he was
available to do so outside of his academic classes; (2) Smith did not object to this
arrangement out of deference to John’s parents’ desire for John to take academic
classes at Oakton; (3) the parties met on several occasions in this time period to
discuss Orchard Academy assessments of John and to map out details of John’s IEP
for the 2009-2010 school year; (4) Smith discussed John’s lack of attendance with the
parents during some of these meetings, but never invoked the school district’s
attendance policy or warned John’s parents that John was at risk of having his
Orchard placement terminated or being disenrolled from the school district because
of his absences; (5) on or about March 5, 2010, Smith sent John’s parents a letter by
regular mail notifying them that John’s placement at Orchard would be terminated
as of the end of the day on March 15, 2010 because of his failure to attend more than
one day a week since January; (6) in addition to notifying John’s parents of John’s
termination for nonattendance, Smith’s letter also offered to reinstate John’s
Orchard program provided John’s parents agreed to Defendant’s proposed IEP,
59
which included the requirement that John attend Orchard Academy on a full-time
basis; (7) Smith also stated that if John’s parents did not want to accept the full-time
placement being offered at Orchard Academy, they could contact her about setting
up a meeting to discuss an alternative placement to Orchard Academy; (8) John’s
parents’ attorney responded to the notice of termination by sending an email to
Defendant’s attorney on March 15, objecting to Defendant’s unilateral decision to
terminate John’s placement, noting that the parents disagreed that the Orchard
program in which John had been placed since Smith intervened provided John with
an appropriate education, and stating that further discussion was necessary; (9) on
March 15, Defendant terminated John’s placement at Orchard, and, apparently
because John’s parents had not contacted the school district to accept the IEP
proposal of placement at Orchard with John’s full-time attendance, Defendant also
disenrolled John from the school district on that date; (10) no further meetings or
written correspondence took place, and John’s parents never contacted Smith to
reenroll John in the school district, to reinstate John’s program at Orchard, or to
discuss an alternative placement to Orchard Academy.
Plaintiffs argue that Defendant breached the Settlement Agreement when it
terminated John’s program at Orchard Academy and enrollment in the school
district for nonattendance. Defendant argues, however, that the termination was
proper because of John’s failure to attend and pursuant to the school district’s
“practice,” R. 52 at 16 (Def. SOF ¶ 65), of disenrolling students for nonattendance.
The evidence in the record regarding the existence of such a “practice” consists solely
60
of Smith’s testimony, which is vague and offers no details or proof that the “practice”
even exists. See R. 49-7 at 98-100. Defendant also describes the “practice” as a
“neutral District policy,” R. 61 at 15, but again, offers no evidence to back up that
characterization, either as to the existence of a “policy” or as to the “neutral”
manner in which it supposedly has been applied. In any event, Defendant fails to
support any legal argument that the school attendance practice or policy constitutes
a defense to Plaintiffs’ breach of contract claims.
Defendant entered into the Settlement Agreement, which indisputably
provides that John is to be enrolled in Orchard Academy for the 2009-2010 school
year. Nothing in the Agreement states that Defendant had the discretion to
terminate that program and disenroll John from the school district due to
nonattendance. The Third Circuit “has explained in the IDEA context that when a
‘settlement agreement was voluntarily and willingly entered by the parties,’ the
agreement constitutes ‘a binding contract between the parties and should have been
enforced as written.’” J.K., 833 F. Supp. 2d at 447 (quoting D.R. ex. rel M.R., 109
F.3d at 898). Moreover, it further has said that “[a] parent may waive her child’s
right to a FAPE” by entering into an agreement “settl[ing] for less than s/he later
believes the law provides.” Id. (quoting Ballard ex. rel Ballard, 273 Fed. App’x at
188). So too can a school district “contract[ ] to provide certain benefits above those
that the IDEA requires.” Id. at 448 (emphasis added). In other words, Defendant
may have had a right under its attendance policy to terminate the Orchard Program
61
and disenroll John (a position Plaintiffs strongly dispute), but that does not mean
Defendant had a contractual right under the Settlement Agreement to do so.
It is undisputed that Smith tolerated John’s nonattendance during the fall of
2009, which suggests that John’s full-time attendance at Orchard was not a required
condition of the Settlement Agreement, or that, if it was, Defendant waived the
condition or breached the contractual duty of good faith and fair dealing by failing to
warn Plaintiffs prior to invoking that policy and terminating John with only a few
days advance notice (if even that 44). Defendant contends that John’s attendance
declined even further starting in January 2010. Defendant already would be on
shaky ground to argue that the Agreement can be read as imposing a full-time
attendance precondition on Defendant’s contractual obligations; but it is even more
so if it is trying to say that the Agreement impliedly gave it the discretion to invoke
its policy according to some undefined standard that is not in the Agreement and
indeed has not been shown by Defendant to even exist. Accordingly, even assuming
Defendant had a school policy that allowed Defendant to disenroll John for
nonattendance, Defendant cannot show that its school policy overrides the
Settlement Agreement, which does not condition John’s contractual right to
enrollment at Orchard Academy on his attendance for a specific number of days per
week. 45 The Settlement Agreement gives John a contractual right to the Orchard
Smith’s letter could not have been sent any earlier than March 5. It was sent by
regular mail, so Plaintiffs had at most a few days to respond before Defendant took
the threatened action of terminating John’s program effective March 15.
44
Smith testified that she believes John’s parents violated the Settlement
Agreement by not having John participate in the Orchard program, but, again, any
45
62
placement, and Defendant has not provided any basis for the Court to conclude that
Defendant had the contractual right to terminate John’s program and disenroll him
from the school district.
(i)
ANTICIPATORY BREACH THEORY
But Defendant’s breach of the Settlement Agreement in the manner described
above does not resolve the disputed issues before the Court. Because John was not
attending Orchard more than one day a week, it would be difficult for Plaintiffs to
argue that John suffered any injury as a result of Defendant’s termination of his
Orchard placement. The injury Plaintiffs suffered, and for which they seek recovery,
is Defendant’s refusal to pay for John’s educational program beginning in the 20102011 academic year through the last day before John turned twenty-two. According
to Plaintiffs, John’s disenrollment constituted an anticipatory breach of the
remaining, unexecuted parts of the Settlement Agreement. As such, Plaintiffs argue,
they were entitled to treat the Settlement Agreement as having been unilaterally
terminated by Defendant, to seek replacement services for the unperformed services
in the Agreement still owed by Defendant, and to then seek recovery from Defendant
for the costs of those replacement services (i.e., the ELSA program).
implied full-time attendance policy was waived by Defendant’s past practice of
allowing John to attend community college classes in the fall, and Defendants
cannot point to any requirement in the Settlement Agreement that imposes an
attendance requirement of a specific number of days per week that John breached
beginning in January 2010. Moreover, Christine Miksis testified that she believed
John was participating in the Orchard program even when he was at community
college classes, because those classes, which were supposed to have been supported
by Orchard, were part of that program.
63
“When a party to an executory contract gives notice of his intention not to
comply with his obligations, the other party may treat such notice as an anticipatory
breach and consider the contract terminated without waiting for the completion of
the contract pursuant to its terms. However, before the renunciation can be treated
as an anticipatory breach, there must be a positive and unequivocal manifestation of
intention that the party will not render the promised performance when the time
fixed in the contract arrives. A definite statement to the second party that the first
party either will not or cannot perform the contract will operate as an anticipatory
breach.” Student Transit Corp. v. Bd. of Ed. Of City of Chi., 395 N.E.2d 69, 71 (Ill.
App. 1979).
Defendant relies on Smith’s March 5, 2010 letter to argue that it did not
unequivocally repudiate that portion of the Settlement Agreement relating to John’s
placement in PACE or another similar program beginning in the 2010-2011
academic year. That letter on its face suggests that the only consequences of John’s
nonattendance were for the remainder of the 2009-2010 academic year. After
notifying John’s parents regarding their options for reinstating John’s program in
that year, the letter, in closing, states that, “[i]n any event, we should schedule a
meeting in the near future to discuss John’s placement for 2010-2011 pursuant to
the settlement agreement.” R. 52-6 at 19. It is undisputed that the parties never
met after this point “to discuss John’s placement for 2010-2011 pursuant to the
settlement agreement.” Such a meeting would not have been required, however, if
John had been accepted into PACE. If, as Smith testified, she did not know at the
64
time she wrote the March 5 letter that John’s application to PACE had been
rejected, then it seems odd she suggested a meeting to discuss John’s placement for
the following year. One possible explanation for Smith’s suggestion for a meeting is
that, as Christine Miksis testified at her deposition, Smith already had repudiated
the PACE placement even before she knew that John had not been accepted.
According to Christine, at several meetings held in December 2009 and January
2010, Smith and Whitten, Defendant’s attorney, had informed Plaintiffs that
Defendant “was not going to give assistance for PACE” because “it was not an ISBEapproved facility.” R. 49-7 at 99, 104 (“They brought in the person who is in charge
of placements from ETHS who stated unequivocally that there was no way that the
high school would support a placement at PACE.”). There is no contrary evidence in
the record to dispute this testimony.
Smith’s statements to Plaintiffs at the meetings in January to the effect that
Defendant would not pay for a placement at PACE because it was not a stateapproved school constituted an unequivocal repudiation of the PACE provision of
the Settlement Agreement. But after that repudiation, Plaintiffs learned John had
not been accepted into PACE. This new development meant that another
contractual provision came into play, the provision stating that if John was not
accepted into PACE, “the parties agree to meet to discuss and consider other
appropriate placement options for John’s post-secondary transition education.”
R. 49-3 at 3. Defendant argues that the Agreement “clearly predicates any
alternative placement for John other than PACE on a meeting of and approval by
65
the IEP team.” R. 55 at 26. But according to Christine, not only had Defendant
already repudiated its obligation to pay for the PACE program, it also had
repudiated its obligation to pay for any comparable program. Christine testified
that when Smith and Whitten told her that Defendant would not pay for PACE
because it was not a state approved program, Plaintiffs sought Smith’s assistance in
finding a comparable replacement program to PACE. The only program Smith
would suggest was one of Orchard’s programs, which Plaintiffs did not believe was
comparable to PACE. In other words, according to Christine’s testimony, Defendant
repudiated both the PACE placement and any reasonable alternative to PACE.
‘‘‘When one party to a contract repudiates his contractual duties before time
for performance, the other party may elect to treat the contract as ended. In such
cases the nonbreaching party is not required to tender performance or to comply with
conditions precedent.’” Bituminous Cas. Corp. v. Commercial Union Ins. Co., 652
N.E.2d 1192, 1197 (Ill. App. 1995) (quoting Builder’s Concrete Co. of Morton v. Fred
Faubel & Sons, Inc., 373 N.E.2d 863 (Ill. App. 1978)) (emphasis added). Under a
theory of anticipatory breach, Defendant’s repudiation of its contractual obligation
to pay for PACE or a comparable program relieved Plaintiffs of the condition
precedent in the contract to meet with Defendant for purposes of discussing an
alternative program to PACE.
Added to the above evidence is the undisputed fact that, notwithstanding the
closing sentence in the March 5 letter about meeting to discuss next year’s
placement, Defendant never called a meeting to have that discussion. Moreover,
66
Smith testified that the reason she did not contact Plaintiffs about an alternative
program to PACE after she learned of PACE’s rejection of John’s application was
that she “wasn’t notified that he had applied or accepted and so I didn’t see any
reason to ask the parent.” R. 49-4 at 65. When asked to explain her answer further,
and, specifically, whether she felt “the contract obligated her to try to convene a
meeting,” Smith responded “[n]o, and I don’t even think he was still going to school
at that time.” Id. In other words, Smith apparently believed that Defendant could
invoke a school attendance policy to disenroll John from the school district and
thereby terminate John’s future rights under the Settlement Agreement. To the
extent Smith’s testimony was ambiguous on this point, Defendant was not the least
bit vague in its response to Plaintiffs’ Local Rule 56.1 Statement. Defendant’s
response unequivocally states:
[A]fter John was disenrolled as an ETHS student on
March 15 . . . the District had no further obligations under
the IDEA or the settlement agreement.
R. 61 at 16-17 (¶ 38) (emphasis added).
But Defendant’s assertion that it had no further obligations to John under
the Settlement Agreement is directly contradicted by the terms of the Settlement
Agreement, which provides that:
[A]ll other provisions of this Agreement shall remain in
effect regardless of John’s acceptance, non-acceptance or
termination from or of the Orchard Academy or PACE
programs.
R. 1-1 at 7 (emphasis added). As this contractual language shows, the Agreement
plainly provides that Defendant did have a continuing obligation to Plaintiffs
67
notwithstanding Defendant’s termination of John’s program at Orchard Academy.
This was a contractual obligation, independent of John’s enrollment in the school
district, and thus it could not legally be declared terminated by virtue of
disenrollment. In short, Defendant’s position that it had no further contractual
obligations to Plaintiffs unless and until they reenrolled John in the school district is
simply not accurate. The contractual provision related to the PACE placement for
the following school year and beyond continued to be in effect. Defendant’s position
that it was no longer in effect by virtue of Defendant’s disenrollment of John and
John’s parents’ failure to seek reenrollment constituted a repudiation of that part of
the Agreement.
In sum, Smith’s repudiation of PACE and failure when asked to suggest any
suitable replacement options was followed by Defendant’s disenrollment of John as
a student in the school district. Smith’s position was that John’s disenrollment cut
off his contractual right to an educational placement in the following school year,
and therefore that she had no duty to contact Plaintiffs about that placement.
Consistent with that belief, at no time between sending the March 5, 2010 letter
and John’s enrollment in ELSA did Defendant ever call a meeting to discuss an
alternative placement. These facts lead the Court to conclude that, despite the
March 5, 2010 letter’s reference to a meeting to discuss next year’s placement, by
May 2010 when Plaintiffs finally took action on their own to enroll John in a
replacement program, Defendant had unambiguously repudiated the placement
provision in the Settlement Agreement regarding John’s educational program
68
beginning in the 2010-2011 academic year through the last day before he turned
twenty-two.
(ii)
MATERIAL BREACH DOCTRINE
Anticipatory breach is not the only contract law principle potentially
applicable to Plaintiffs’ claim to recover the costs of the ELSA placement. “It is
black letter law in Illinois and elsewhere that only a ‘material’ breach of a contract
provision by one party will justify non-performance by the other party.” Sahadi v.
Cont’l Ill. Nat’l Bank & Trust Co., 706 F.2d 193, 196 (7th Cir. 1983). “[T]he
determination of ‘materiality’ is a complicated question of fact, involving an inquiry
into such matters as whether the breach worked to defeat the bargained-for
objective of the parties or caused disproportionate prejudice to the non-breaching
party, whether custom and usage considers such a breach to be material, and
whether the allowance of reciprocal non-performance by the non-breaching party
will result in his accrual of an unreasonable or unfair advantage.” Id. Assuming
Plaintiffs breached the meet-to-discuss provision in the Agreement, the Court
concludes that breach was not material to Defendant’s contractual obligation to pay
for a replacement program for PACE. The bargained-for objective of the contracting
parties was to provide John with a residential placement program at Defendant’s
expense beginning in the 2010-2011 academic year. 46 Excusing Defendant from its
The language in the Settlement Agreement regarding the meeting requirement
for agreeing upon an alternative program is somewhat ambiguous, as it states only
that the parties agree that they would “meet to discuss and consider other
appropriate placement options.” R. 49-3 at 3. While the Agreement does not
specifically say that Defendant would pay for another placement option if John were
46
69
contractual obligation to pay for a private educational placement for John would be
a huge windfall to Defendant since that placement was a significant part of the
bargained-for exchange by which Plaintiffs released their claims against Defendant.
On the other hand, it would not defeat the bargained-for objective of the parties or
cause disproportionate prejudice to Defendant to require Defendant to pay for a
replacement program notwithstanding the parties’ failure to mutually agree on a
replacement program, so long as the replacement program imposes no greater
burden on Defendant than the PACE program would have.
Moreover, the Court rejects Defendant’s apparent belief that the Agreement’s
meeting requirement imposed obligations only on John’s parents. See R. 55 at 27
(arguing that John parents were “not relieve[d] . . . of the responsibility in the
Agreement to meet with the IEP team to decide on any alternative placement that
would be made for PACE”) (emphasis added). The obligation to meet and discuss
was an obligation imposed under the Agreement on both parties. See, e.g., J.K., 833
F. Supp. 2d at 453 (“The settlement agreement merely provides that ‘the parties
not accepted into the PACE program, the provision would not make much sense
unless a payment obligation were implied. The language must be read in context of
the overall agreement, by which Plaintiffs gave up viable claims for compensatory
education and attorneys’ fees in return for, among other things, a commitment by
Defendant to provide John with an educational program for his remaining IDEAeligible years. See id. at 1 (second Whereas clause) (“Whereas, the parties, in
exchange for the good and valuable promises and consideration contained herein
have agreed to compromise the lawsuit in or . . . to provide for John’s educational
needs appropriately , . . . and to continue with John’s education cooperatively . . . .”).
Moreover, Defendant does not appear to argue it did not have an obligation to pay
for a replacement program; instead, its only argument is that it was relieved of that
contractual obligation by Plaintiffs’ failure to call a meeting for purposes of
mutually agreeing on the replacement program.
70
agree to reconvene the IEP team . . . to discuss transition activities during the 20092010 school year’ . . . One cannot fairly read this language to impose a duty only on
the District to convene the IEP team or develop a draft IEP.”) (emphasis in original)
(footnote omitted). As in J.K., “the contract evinces no ambiguity” as to whether
John’s parents were solely responsible for convening a meeting to discuss alternative
programs to PACE; “[t]o the contrary, the contract plainly states that ‘the
parties’ . . . will perform th[at] task[ ].’” Id. Thus, either Plaintiffs’ failure to convene
a meeting to discuss a replacement program did not breach any obligation it had
under the Settlement Agreement “as the contract did not impose a duty on
[Plaintiffs] to accomplish [that] task,” id. at 454, or, the meet-to-discuss provision
imposed a contractual duty on both parties, in which case Defendant also breached
that duty by failing to call a meeting, and Defendant’s breach would constitute a
waiver of the same breach by Plaintiffs. “Consequently, the result that [Defendant]
suggest[s] should follow from a breach—the invalidation of the pendent placement
provision—does not obtain.” Id.
For all of these reasons, the Court must agree with Plaintiffs that the “banter
between the parties about . . . who had the responsibility to convene a meeting”
(R. 49 at 8) ultimately is beside the point insofar as Plaintiffs’ breach of contract
claim is concerned. It is unfortunate that the parties’ relationship deteriorated to
the point where they are now making excuses for their respective failures to call a
meeting. As Plaintiffs suggest, both sides were playing a “game of chicken,” R. 62 at
10, and the Court must now apply contract law principles to determine who is the
71
winner. By playing the game, Defendant assumed the risk that it would lose.
Defendant’s game strategy appears to have been to declare John “disenrolled” from
the school district and to then sit back and wait for Plaintiffs to do something about
it, in hopes that Plaintiffs would not act and Defendant could thereby avoid its
contractual responsibility to pay for either PACE or a replacement program.
Regardless of whether that strategy might work under the applicable statutory
principles (an issue the Court is not deciding at this time), Defendant’s contractual
obligations were separate and distinct from its statutory obligations. And from a
contract law perspective, Defendant’s strategy violated Plaintiffs’ contractual rights.
(iii)
SUPPLYING THE MISSING CONTRACTUAL TERM ON
WHICH THE PARTIES FAILED TO AGREE
That having been said, the Court is still faced with the issue of determining
Defendant’s payment obligations given that the parties never reached an agreement
on a program to replace PACE. Here too, however, well established principles of
contract law provide the answer. As the Seventh Circuit has explained, “a contract
with open terms can be enforced” if “the terms to be agreed upon in the future can
be determined independent of a party’s mere wish, will, and desire . . ., either by
virtue of the agreement itself or by commercial practice or other usage or custom.”
Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 564-65 (7th Cir. 2012) (internal
quotation marks and citations omitted); see also Acad. Chi. Publishers, 578 N.E.2d
at 984 (“It is not uncommon for a court to supply a missing material term,” so long
as there is a “suitable standard” available for court to apply). The parties agreed to
agree later on a suitable replacement program if John was not accepted into PACE.
72
The failure of the meet-to-discuss requirement being met would prevent
enforcement of Defendant’s core promise to pay for a replacement program only if
the Court had no suitable standard to use in supplying the term that was supposed
to have been agreed upon at that future meeting. Here, the Agreement provides a
suitable standard for the Court to use, that standard being the PACE program to
which Defendant originally agreed. Had a meeting been called, Defendant would
have been contractually bound by its duty of good faith and fair dealing to agree to a
replacement program that did not impose any materially greater hardship on
Defendant than the PACE program. See Citadel Grp. Ltd. v. Washington Reg'l Med.
Ctr., 692 F.3d 580, 592 (7th Cir. 2012). Therefore, to recover for ELSA, Plaintiffs
must show that ELSA was an appropriate replacement for the PACE program in
that it did not impose a significantly greater burden on Defendant than the PACE
program would have imposed.
Plaintiffs argue that they are entitled to summary judgment on the issue of
whether the ELSA program is no more burdensome on Defendant than the PACE
program would have been because Christine Miksis testified that ELSA was a
comparable program to PACE and there is no other evidence in the record to dispute
that testimony. See R. 49 at 7. While it is true that Defendant has not submitted any
evidence to contest Christine’s testimony, the Court agrees with Defendant (R. 61 at
19-20) that Plaintiffs have not met their burden on summary judgment because
Christine’s opinion is not sufficient to establish that ELSA is no more burdensome
on Defendant than PACE would have been. Therefore, Defendant’s failure to submit
73
contrary evidence does not warrant summary judgment in Plaintiffs’ favor on that
issue, and a trial will be needed to resolve it.
C.
PLAINTIFFS’ FEDERAL LAW CLAIMS UNDER THE IDEA
The Court will now discuss Plaintiffs’ claims under the IDEA for denial of a
FAPE.
1.
WHETHER PLAINTIFFS WERE REQUIRED
EXHAUST THEIR ADMINISTRATIVE REMEDIES
TO
There is no question that Plaintiffs’ federal IDEA claims trigger the
administrative exhaustion requirement. The issue raised by those claims relates to
the special educational services and aides to which John was entitled in the IDEAeligible period after he completed his senior year of high school, plainly a matter
that the IDEA administrative procedures and remedies can redress. Nevertheless,
because exhaustion is an affirmative defense, it is subject to waiver and estoppel
principles. See Gallegos v. Mt. Sinai Med. Ctr., 210 F.3d 803, 809-10 (7th Cir. 2000)
(estoppel may be applied to preclude the assertion of failure to exhaust
administrative remedies as a defense); Charlie F. ex. rel Neil F., 98 F.3d at 991
(“lack of exhaustion usually is waivable”); see also Zipes v. Trans World Airlines,
Inc., 455 U.S. 385, 393 (1982) (non-jurisdictional prerequisites to suit in federal
court are “subject to waiver, estoppel and equitable tolling”). In addition, courts
have recognized that the exhaustion doctrine “is not to be applied inflexibly.”
Deveaux v. Vallas, 2001 WL 699891, at *4 (N.D. Ill. June 21, 2001) (internal
quotation marks and citations omitted). And the Supreme Court has held that
74
“parents may bypass the administrative process where exhaustion would be futile
or inadequate.” Honig, 484 U.S. at 327
a.
WAIVER
Plaintiffs contend that Defendant has waived its right to assert the
administrative exhaustion defense by participating in this litigation. Defendant
first raised the administrative exhaustion requirement when it filed an amended
answer approximately five months after the lawsuit was filed. R. 25. After more
than a year of discovery and Plaintiffs’ filing of their summary judgment motion,
Defendant finally pressed the exhaustion issue in its own summary judgment filing.
Plaintiffs have a valid argument that Defendant “has not exercised due diligence in
asserting the defense of failure to exhaust administrative remedies.” Stevenson v.
Hochberg, 2009 WL 1490828, at *4 (D.N.J. May 26, 2009) (finding defendant waived
the right to assert the defense of failure to exhaust administrative remedies where
he engaged in nine months of litigation against plaintiff, including motion practice,
written discovery and depositions).
Defendant argues in response that exhaustion, as an affirmative defense,
cannot be raised any sooner than on summary judgment and that, in any event, it
could not “speculate prior to discovery what, if any, issues would implicate IDEA
and thus require exhaustion.” R. 60 at 5. Defendant’s first argument is incorrect.
“[W]here, as here, the allegations of the complaint itself set forth everything
necessary to satisfy the affirmative defense,” the court can rule on the affirmative
defense at the pleading stage. United States v. Lewis, 411 F.3d 838, 842 (7th Cir.
75
2005). The Court also is somewhat skeptical of Defendant’s second argument
against waiver insofar as Defendant’s exhaustion defense primarily relies on a
general rule requiring administrative exhaustion of claims based on IDEA
settlement agreements. Defendant did not need discovery to put forth this
exhaustion argument because the complaint clearly put Defendant on notice that
the basis of Plaintiffs’ claims was the Settlement Agreement entered into to resolve
Plaintiffs’ previous IDEA lawsuit.
Nevertheless, the Court already has held that Plaintiffs’ claims based on
breach of the Settlement Agreement are not subject to the administrative
exhaustion requirement so Plaintiffs’ waiver theory is irrelevant for those claims.
Insofar as Plaintiffs’ IDEA claims are concerned, it is difficult for the Court to
determine on the current record whether Defendant should have raised the
exhaustion defense any earlier in these proceedings because the parties’ arguments
do not clearly distinguish between a theory of recovery based on the Settlement
Agreement and a theory of recovery based on the IDEA. But even if waiver were a
valid argument against Defendant’s exhaustion defense to Plaintiffs’ IDEA claims,
it does not seem to be a particularly compelling one in the context of this case
because Plaintiffs have not explained how they have been prejudiced by Defendant’s
delay in raising the exhaustion defense. The time for filing an administrative claim
already had passed when Plaintiffs filed suit, so that an earlier ruling on the
exhaustion requirement would not have led to Plaintiffs seeking an administrative
remedy. At best, had exhaustion been decided at an earlier point in these
76
proceedings, the current summary judgment briefs might have been less complex.
Nevertheless, the Court will reserve a final ruling on the waiver issue to allow the
parties to more fully develop their arguments, if they wish to continue to make
them, in light of the Court’s thoughts on the issue as expressed herein. 47
b.
FUTILITY OR INADEQUACY OF EXHAUSTION
“[A]pplication of the exhaustion doctrine is intensely practical,” and “[t]he
ultimate decision of whether to waive exhaustion should not be made solely by
mechanical application of the [applicable] factors, but should also be guided by the
policies underlying the exhaustion requirement.” Bowen v. City of N.Y., 476 U.S.
467, 484 (1986) (internal quotation marks and citation omitted); see also Payne v.
Peninsula Sch. Dist., 653 F.3d 863, 870 (9th Cir. 2011) (“determining what has and
what has not been exhausted under the IDEA’s procedures may prove an inexact
science”; “the exhaustion requirement appears more flexible than a rigid
jurisdictional limitation—questions about whether administrative proceedings
would be futile, or whether dismissal of a suit would be consistent with the general
purposes of exhaustion, are better addressed through a fact-specific assessment of
On a related point, the Court does conclude that Defendant’s delay in raising the
administrative exhaustion requirement constitutes a waiver of any argument
Defendant might make that, if Plaintiffs’ IDEA claims were to be dismissed for
failure to exhaust, the Court should not exercise supplemental jurisdiction over
Plaintiffs’ related state law breach of contract claims. With regard to this issue,
Defendant’s delay would have been prejudicial to Plaintiffs. See Malinger v. U.S.
Swimming, Inc., 435 Fed. App’x 559, 562 (7th Cir. 2011) (unpublished) (vacating
district court order remanding state law claims to state court where “the litigants
and the district court have expended considerable time and resources—19 months
from removal to summary judgment—completing discovery and developing a full
record to litigate all of [the plaintiff’s] claims, including the state claims”).
47
77
the affirmative defense”), overruled on other grounds by Albino v. Baca, 747 F.3d
1162 (9th Cir. 2014).
This case involves a situation where Plaintiffs already participated in the
administrative process once, having exhausted their administrative remedies before
filing the first lawsuit. The Settlement Agreement was the final result of those
earlier administrative proceedings. Defendant correctly points out that the issues
now before this Court were never raised in those administrative proceedings, and,
ordinarily, it would not be proper to allow a party to piggy-back on an earlier
administrative exhaustion that did not address the claims currently at issue. But
Plaintiffs make the equally valid point that this case is merely a continuation of the
previous lawsuit in which they seek only to vindicate the rights they believe they
obtained from their already exhausted claims, which rights include an agreement
voluntarily entered into by Defendant to undertake obligations related to a matter
that was not previously explored in the administrative proceedings. While Judge
Holderman held in his mootness ruling that those issues needed to be addressed
administratively, the first lawsuit did not end at Judge Holderman’s mootness
ruling. Instead, the parties negotiated further and ultimately reached an agreement
whereby John’s parents gave up viable claims for compensatory education and
attorneys’ fees in exchange for Defendant’s promise to provide the agreed-to
educational program with the specific goal of avoiding the need for further timeconsuming and costly administrative and possibly judicial proceedings in the final
26 months of John’s secondary school education.
78
“While a challenge to the contents of an IEP would require exhaustion of
administrative remedies—since school administrators are in the best position to
establish
appropriate
educational
programs—exhaustion
of
administrative
remedies when a plaintiff is challenging only a failure to implement an IEP would
prove fruitless.” John G. v. Ne. Educ. Intermediate Unit 19, 490 F. Supp. 2d 565,
579 (M.D. Pa. 2007). Plaintiffs contend that a transition plan for John already had
been agreed to by the parties, and that, when Smith took over as Director of Special
Education, she simply ignored that agreement. Defendant argues at length that the
record does not support Plaintiffs’ contention that the agreed-to transition plan
included community college. But clearly that question is a disputed issue of fact.
Questions concerning the terms of an agreed transition plan, whether Defendant
implemented it properly, and, if it did not, what the remedy under IDEA for that
failure should be, may not be subject to administrative exhaustion. See, e.g., W.B. v.
Matula, 67 F.3d 484, 496 (3d Cir. 1995) (holding that exhaustion was excused in part
because a factual record already had been developed in the numerous prior
administrative proceedings to determine the child’s classification and placement,
and “an action seeking compensation for the alleged IDEA violations is now ripe for
judicial resolution”), abrogated on other grounds by A.W. v. Jersey City Pub. Sch.,
486 F.3d 791, 792 (3d Cir. 2007); Lester H. v. Gilhool, 916 F.2d 865, 869-70 (3d Cir.
1990) (holding that exhaustion was futile for claim seeking compensatory education
when parties stipulated that profoundly retarded child’s in-home IEP was
inappropriate and where school nonetheless took approximately 2 1/2 years to locate
79
an appropriate program for the child); cf. Robinson v. Pinderhughes, 810 F.2d 1270,
1272 (4th Cir. 1987) (no further exhaustion required where plaintiffs challenged
school district’s failure to implement hearing officer’s decision in favor of plaintiffs,
which failure gives rise to § 1983 claim against school district for violation of the
IDEA).
In addition, Plaintiffs argue that whether Defendant validly terminated
John’s placement because of a non-IDEA attendance policy or practice also presents
a question for which administrative exhaustion is not required. Defendant responds
that even if it terminated John’s IDEA program based on a non-IDEA policy,
Plaintiffs had a remedy under the IDEA for that termination, and therefore
exhaustion was required. 48 That is not necessarily so, however. See Banks ex rel.
Banks. v. Modesto City Schs. Dist., 2005 WL 2233213, at *8 (E.D. Cal. Sept. 9, 2005)
(claim of wrongful suspension falls outside scope of IDEA and therefore exhaustion
not required). Moreover, even accepting Defendant’s argument, Plaintiffs contend
that Defendant’s policy allowing for termination of a special education placement
based on a non-special education attendance policy violates federal law. In addition,
Plaintiffs argue, Defendant should have called an IEP meeting before “unilaterally”
terminating John’s aides and supports that were being provided by Orchard, as well
as before “unilaterally” terminating John’s program at Orchard and then
Defendant wants to have its cake and eat it too. It argues that it did not need to
follow the IDEA procedure of calling an IEP meeting to terminate John’s enrollment
because that termination was based on a school policy unrelated to special
education. At the same time, it argues that Plaintiffs had to follow the IDEA,
including its administrative exhaustion requirement, if they wanted to challenge
Defendant’s termination for non-special education reasons. See R. 75 at 7.
48
80
disenrolling him from the school district. Plaintiffs argue that the law does not
allow a school district to simply “divest itself” of a student in the manner in which
Defendant did here. These issues are not the kind that normally require
administrative exhaustion. See, e.g., Murphy v. Arlington Cent. Sch. Dist. Bd. of
Educ., 297 F.3d 195, 199 (2d Cir. 2002) (exhaustion is not necessary where “an
agency has adopted a policy or pursued a practice of general applicability that is
contrary to the law”).
Finally, Plaintiffs have raised a valid argument that this is one of those
unique cases where administrative exhaustion would be futile because of the
retrospective nature of Plaintiffs’ claims. John’s eligibility for special education
services has since passed, and therefore his educational injuries “are wholly in the
past.” Covington v. Knox Cnty. Sch. Sys., 205 F.3d 912, 917 (6th Cir. 2000) (holding
that “state’s administrative process would be futile and is not required before the
plaintiff can file suit in federal court” where “the injured child has already graduated
from the special education school”).
It is true, as Defendant argues, that the Seventh Circuit has said that
“characterizing the claim as one for ‘retrospective injuries’” is “insufficient” “because
the timing for seeking relief is largely up to parents—they cannot sit on claims and
later sue for damages.” C.T. ex rel. Trevorrow v. Necedah Area Sch. Dist., 39 Fed.
App’x 420, 423 (7th Cir. 2002) (unpublished); see also McCormick v. Waukegan Sch.
Dist. No. 60, 374 F.3d 564, 568 n.1 (7th Cir. 2004) (“the need to exhaust should not
depend upon the extent of delay in litigation or the choice of a plaintiff to delay
81
litigation until he or she graduates”). But this case does not involve a situation
where the parents simply sat on their claims and later sued for damages. Instead,
John’s parents reasonably believed they had reached an agreement to resolve all of
their son’s future educational needs without the time, expense, and delay of more
administrative proceedings. Indeed, they released Defendant from viable claims for
compensatory education and attorneys’ fees to secure that result. They continued to
believe the agreement they had reached governed the parties’ relationship even
while disputes over its terms erupted. The Court has held that they did not have to
exhaust their claims for breach of the Settlement Agreement. But if it turns out in
retrospect that the portion of the Settlement Agreement on which Plaintiffs have
been relying is unenforceable because there was no meeting of the minds, then it is
now too late for Plaintiffs to go back and exhaust their administrative remedies for a
claim under the IDEA based on the terms they thought they had secured by the
Settlement Agreement. To protect against this result, Plaintiffs would have had to
engage in the very process they had bargained to avoid thereby defeating one of the
purposes of entering into the settlement. Plaintiffs’ IDEA claims and Plaintiffs’
claims based on the Settlement Agreement (which do not have to be exhausted)
overlap. Requiring exhaustion for the IDEA claims would not serve any purpose
other than to punish Plaintiffs for their good faith belief that they did not need to
exhaust their administrative remedies because they had negotiated a settlement
agreement to stand in place of exhaustion. Exhaustion should not be used to prevent
potentially valid claims from being heard when it only becomes clear that Plaintiffs
82
should have exhausted their administrative remedies at a point in time when
administrative
remedies
are
no
longer
available.
In
such
circumstances,
administrative remedies are futile and foreclosing Plaintiffs’ claims based on the
exhaustion doctrine would serve to encourage school districts to ignore their
obligations under settlement agreements in hopes of avoiding those obligations
altogether.
For the foregoing reasons, the Court concludes that there a number of reasons
why administrative exhaustion might be excused as being futile for at least some if
not all of Plaintiffs’ IDEA claims. Because Plaintiffs’ IDEA claims are not at this
point clearly defined as distinct from Plaintiffs’ claims for breach of the Settlement
Agreement, the Court will reserve a final ruling on the issue until Plaintiffs’ specific
claims under the IDEA unfold and the Court can more precisely determine whether
any of the reasons given above for excusing exhaustion should be applied.
2.
WHETHER DEFENDANT DENIED JOHN A FAPE
The current record also does not lend itself to resolution on summary
judgment of Plaintiffs’ claims for violation of the IDEA, and, indeed, the Court is not
entirely certain, divorced from the Settlement Agreement, what those claims are. It
appears that Plaintiffs are raising both procedural 49 and substantive 50 arguments
See Bd. of Educ. of Twp. High Sch. Dist. No. 211, 486 F.3d at 276 (“‘Procedural
flaws do not automatically require a finding of a denial of a [free appropriate public
education]. However, procedural inadequacies that result in the loss of educational
opportunity . . . clearly result in the denial of a [free appropriate public
education].’”) (quoting Heather S. v. State of Wis., 125 F.3d 1045, 1059 (7th Cir.
1997) (internal quotation marks and citation omitted)).
49
83
for why John was denied a FAPE (1) during the 2010-2011 school year, while he
attended the Orchard program, and (2) beginning in the fall of 2011, when Plaintiffs
made a private placement decision to enroll John in ELSA.
When a parent believes that the state has failed to offer his or her child a
FAPE, the parent may unilaterally place the child in a private school and seek
reimbursement from the school district. Forest Grove Sch. Dist. v. T.A., 557 U.S.
230, 247 (2009). “The U.S. Supreme Court has established a three-step
reimbursement test. Under this Burlington–Carter test, [Defendant] is required to
pay for the private school tuition only if: (1) the program recommended by the IEP
was inadequate or inappropriate; (2) the alternative placement the Parents chose
was appropriate; and (3) the equitable factors weigh in favor of reimbursement.” FB
v. N.Y. City Dep’t of Educ., 132 F. Supp. 3d 522, 534-35 (S.D.N.Y. 2015) (citing
Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 12-16 (1993); Sch. Comm. of
Burlington v. Dep’t of Educ., 471 U.S. 359, 373-74 (1985)); see generally Bd. of Educ.
of Evanston-Skokie Cmty. Consol. Sch. Dist. 65 v. Risen, 2013 WL 3224439, at *22
(N.D. Ill. June 25, 2013).
It seems likely that John was denied a FAPE in the 2011-2012 academic year
because the record does not show Defendant as having offered any educational
See Bd. of Educ. of Hendricks Hudson Cent. Sch. Dist., Westchester Cnty. v.
Rowley, 458 U.S. 176, 203 (1982) (a state offers a FAPE “by providing personalized
instruction with sufficient support services to permit the child to benefit
educationally from that instruction”); Alex R., ex rel. Beth R. v. Forrestville Valley
Cmty. Unit Sch. Dist. No. 221, 375 F.3d 603, 613 (7th Cir. 2004) (in order to meet
the substantive criterion for validity, “an IEP must respond to all significant facets
of the student’s disability, both academic and behavioral”) (citing CJN v.
Minneapolis Pub. Schs., 323 F.3d 630, 642 (8th Cir. 2003)).
50
84
program to him in this time period. There also appears to be a serious question
whether Plaintiffs’ procedural rights were violated by Defendant’s termination of
John’s placement at Orchard without following the proper procedures for making a
change to an educational placement. To the extent that Defendant relies on an
attendance practice or policy to avoid the procedural requirements of the IDEA, that
argument will not suffice. Defendant knew that John’s lack of attendance was due
to his parents’ assertion of their IDEA rights. Thus, the IDEA applies. Nevertheless,
the parties have not sufficiently addressed all of the pertinent issues related to
Plaintiffs’ IDEA claims, including the applicable procedural requirements for
changing or terminating a placement, notice requirements and whether they can be
waived, and appropriate remedies. The Court therefore cannot determine from the
summary judgment filings whether a statutory violation occurred, and if so,
whether Plaintiffs are entitled to the remedies they seek (which potentially include
recovery for the costs of a unilateral educational placement, compensatory
education, and attorneys’ fees). Accordingly, the Court declines to decide any of
these issues at this time.
D.
EQUITABLE ISSUES—FAILURE TO COOPERATE, ESTOPPEL,
AND UNCLEAN HANDS
Defendant’s final summary judgment argument is that Plaintiffs should be
barred from recovering on their claims because of parental noncooperation.
Defendant’s noncooperation argument is essentially the mirror image of Plaintiffs’
argument that equitable principles such as estoppel and unclean hands bar
Defendant from raising administrative exhaustion as a defense. The Court already
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has found that administrative exhaustion is either not required or may be excused
in this case. Therefore, the Court will not specifically address Plaintiffs’ unclean
hands and estoppel arguments, but instead will focus on the noncooperation issue.
First, the Court rejects Defendant’s argument that John’s parents
“‘deliberately prevent[ed] the fulfillment of a condition on which [Defendant’s]
liability under [the Settlement Agreement] depend[ed].’” R. 55 at 18 (quoting Yale
Dev. Co. v. Oak Park Trust & Sav. Bank, 325 N.E.2d 418, 422 (Ill. App. 1975)).
Defendant cites this principle of law to argue that Plaintiffs’ enrollment of John in
community college classes prevented Defendant from delivering John the agreed-to
program at Orchard. This contract law principle, however, has no application to the
facts of this case. No provision of the Settlement Agreement prohibits Plaintiffs
from enrolling John in community college classes. Moreover, Plaintiffs’ claim is that
Defendant breached the Settlement Agreement and failed to provide a FAPE
because Defendant terminated Orchard’s aides and supports for John’s Oakton
classes. Defendant’s ability to provide the Orchard aides and supports for
community college classes did not depend on anything Plaintiffs failed to do.
Defendant’s noncooperation argument that it could not provide John with other
educational services through the Orchard program because of his absences simply is
not responsive to Plaintiffs’ claim.
Second, Defendant’s argument that John’s parents are to blame for
Defendant’s refusal to pay for the ELSA placement because they failed to notify
Defendant when John applied to PACE or when John got rejected by PACE, also is
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without merit. The Settlement Agreement does not contain any provision requiring
such notification, and Defendant has not presented any argument for why John’s
parents’ failure to provide notification constitutes a basis for voiding Defendant’s
contractual obligations under the Agreement. Nor does Defendant explain how the
failure to receive the notice in question rendered Defendant “incapable of complying
with the Agreement” (R. 55 at 27) regarding the PACE placement. The only issue
regarding the PACE placement is whether Defendant is obligated to pay for the
replacement program (ELSA), when the parties never met to discuss a new program
after PACE rejected John’s application. Defendant admits that it knew of PACE’s
rejection, but argues that it did not fulfill the PACE placement requirement of the
Settlement Agreement because by then John already had been terminated and
disenrolled “so the District had no further duty to attempt to call an IEP meeting.”
R. 55 at 26 n.5. Thus, by Defendant’s own admission, the PACE/ELSA question is
whether Defendant had any “duty,” not whether Defendant was prevented by
Plaintiffs from fulfilling that duty, which is the issue that Defendant’s
noncooperation argument addresses. Therefore, Defendant’s failure to cooperate
argument as to Plaintiffs’ PACE/ELSA claim also fails.
Third, Defendant’s noncooperation argument also fails as to Plaintiffs’ IDEA
claims. Defendant’s obligation under the IDEA to provide educational services to
John exists independently of John’s parents. See 20 U.S.C. § 1412(1) (a FAPE must
be made available “to all children with disabilities”) (emphasis added); Florence
Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 15 (1993) (“[P]ublic educational
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authorities who want to avoid reimbursing parents for the private education of a
disabled child can do one of two things: give the child a free appropriate public
education in a public setting, or place the child in an appropriate private setting of
the State’s choice. This is the IDEA’s mandate, and school officials who conform to it
need not worry about reimbursement claims.”); see also Moore v. Hamilton Se. Sch.
Dist., 2013 WL 4607228, at *17 (S.D. Ind. Aug. 29, 2013) (a school district’s
“obligation to provide a FAPE to a student is not excused by parental opposition to
any particular plan”). Therefore, Defendant cannot defend its decision to terminate
John’s placement and school enrollment by pointing to the difficulties John’s
parents caused it in performing its duties. Nor can Defendant defend its failure to
offer any educational program to John beginning in the fall of 2011 on parental
noncooperation. Regardless of its views about the meet-to-discuss provision of the
Settlement Agreement, Defendant had an independent and concurrent obligation
under the IDEA to offer John a FAPE in John’s final two years of IDEA-eligibility.
There is no evidence in the record that it did so.
The case law cited by Defendant is factually distinguishable. In Pedraza v.
Alameda Unified School District, 2011 WL 4507111 (N.D. Cal. Sept. 29, 2011), the
school district admitted it had agreed to provide the services that it failed to
provide. It argued, however, that it attempted to provide those services but was
prevented from doing so because the parents “refused to participate in the process
and to provide the necessary information so that the services could be provided.” Id.
at *10. Here, John’s parents did not prevent Defendant from providing the disputed
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services in question, namely the aides and supports for Oakton community college
classes. An argument that John’s parents’ lack of cooperation prevented Defendant
from providing other services that Orchard was willing to provide is simply not a
defense to the claim Plaintiffs have raised.
Defendant also cites Patricia P. v. Board of Education of Oak Park, 203 F.3d
462 (7th Cir. 2000). But in that case, the parent “unilaterally removed” the child
from the school district and, once removed, did not send him back for evaluation. Id.
at 469. Here, Defendant unilaterally removed John from the school district by
disenrolling him. While there is some testimony by Bobrowski that John’s absences
from Orchard were making it difficult for Orchard to complete the agreed-to
assessments for purposes of John’s 2009-2010 IEP, difficulties are not the
equivalent of completely removing the child from the school district. Nor would
those difficulties justify Defendant in disenrolling John from the school district and
failing to offer John a FAPE for the school years following the 2009-2010 academic
year. The Seventh Circuit held in Patricia P. that “parents who, because of their
failure to cooperate, do not allow a school district a reasonable opportunity to
evaluate their disabled child, forfeit their claim for reimbursement for a unilateral
private placement.” Id. But Defendant does not argue here that the reason it failed
to offer John any educational placement beginning in the fall of 2011 is that it did
not have “a reasonable opportunity to evaluate” John as a result of John’s parents’
conduct. Instead, Defendant’s argument is that it did not offer a FAPE to John
beginning in 2011 because it believed it had no duty to offer him educational
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services after March 15, 2010 due to his disenrollment by Defendant for
nonattendance and his parent’s failure to seek reenrollment.
The Court is particularly skeptical of Defendant’s noncooperation argument
as applied to the ELSA placement. Defendant argues that it was relieved of its
duties under the IDEA for providing John a FAPE beginning in the school year
following John’s Orchard placement because Defendant disenrolled John from the
school district and John’s parents failed to cooperate by not seeking reenrollment.
But the stated reason for Defendant’s disenrollment was John’s absences from the
Orchard program, and John’s absences were the result of John’s parents’ assertion
of their rights under the IDEA to have John attend community college classes as
part of that placement. If the Court were to accept that argument, John would be
denied a FAPE in the following school years because his parents asserted their
rights under the IDEA in the previous school year. Even apart from whether a
disabled student can ever be deprived completely of his right to a FAPE based on
his parents advocating on his behalf for specific services to be provided as part of
that FAPE, it would be improper for the Court to rely on John’s parents’ conduct
regarding the Orchard placement to justify denial of a FAPE to John in the years
following that placement. Under Defendant’s theory, Defendant could essentially
breach its duty to provide John with a FAPE for his last fourteen months of IDEA
eligibility without consequence based on alleged noncooperation by John’s parents
during the previous school year. “This result would undermine the IDEA’s central
purpose of ensuring that all children with disabilities receive a FAPE. A child
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should not lose the IDEA’s protections any time a school district might have
grounds to second-guess the parents’ earlier placement decisions. Otherwise, one
mistake years earlier could result in a child forever being left behind.” Bd. of Educ.
of Evanston-Skokie Cmty. Consol. Sch. Dist. 65, 2013 WL 3224439, at *23 (emphasis
in original). These concerns are especially acute in a case like this where the alleged
noncooperation of John’s parents involved a good faith belief that they had a legal
right to insist on enrolling John in community college classes.
Moreover, Defendant ignores the Seventh Circuit’s further comment in
Patricia P. that “a school district is [ ] also bound by the IDEA’s preference for a
cooperative placement process: this Court will look harshly upon any party’s failure
to reasonably cooperate with another’s diligent execution of their rights and
obligations under the IDEA.” Patricia P., 203 F.3d at 469 (emphasis added); see also
W.L.G., 975 F. Supp. at 1329 (“While parents such as Riley, who are obviously
concerned and active in securing their child’s education, are to be encouraged to
pursue the remedies specified in the IDEA, they are, foremost, encouraged to work
in partnership with local school districts, where they will most likely find caring
partners. Where that is not the case, or where attempts at cooperation fail and
compromise a child’s opportunities, they should certainly seek the full range of
remedies available to them.”). There is at least a disputed issue of fact whether
Defendant failed to “reasonably cooperate” with John’s parents’ “diligent execution
of their rights and obligations under the IDEA.”
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The history of this case reveals that, notwithstanding (or perhaps, as a result
of) the parents’ filing of a request for a due process hearing and subsequent court
litigation, the parties worked hard over the course of John’s first four years of high
school to maintain the collaborative process required by the IDEA. Their hard work
appeared to culminate with the Settlement Agreement. Yet shortly after the
Settlement Agreement was signed, the collaborative process broke down and the
relationship deteriorated from there. All of the reasons for this may not be apparent
from the current record. But it seems to the Court that the problem began when one
of the first things Smith did after taking over as Director of Special Education was to
direct Orchard Academy to discontinue aides and supports it had been providing to
John without engaging in a discussion with the parents first. The Court recognizes
that Defendant believes Smith was justified in taking the actions she did because
she was only “restoring” John’s original agreed-to program after Christine Miksis
“unilaterally” enrolled John in community college classes. But this argument ignores
the fact that the de facto status quo, for whatever reason, was that John was
receiving those supports and services.
From Defendant’s perspective, it may have been “restoring” the agreement,
but to Plaintiffs, Defendant was changing it; only a compromise or a third party
decision could resolve who was right on that issue. Moreover, there is one crucial
difference between what Smith did and what John’s parents did: Smith knew at the
time she took her action that the parents disputed her view of what the agreement
was, whereas, at the time Christine Miksis took the complained of actions, she
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appeared to have a good faith belief that the parties had reached an agreement that
supported her actions. 51
Smith testified that she consulted with her attorney before making the
determination that the Settlement Agreement did not cover the aides and supports
Orchard was providing. But for the collaborative process to work, she should have
consulted not just with her attorney but with the parents, and done so before she
had made up her mind as to who was correct regarding what the Settlement
Agreement provided. See Bd. of Educ. Of Twp. High Sch. Dist. No. 211, 486 F.3d at
274 (“The parents claim that the meetings that the District held . . . were nothing
but an elaborate effort to ratify a decision that the District had already made
without their input. If this were true, then it would violate the IDEA.”). Had Smith
done so, she perhaps would have understood better why Christine Miksis believed
the community college classes were part of the agreement. Even if Smith still
disagreed with John’s parents after having that discussion, a better understanding
of their position could have led to a compromise solution that avoided this litigation.
It certainly is possible that Christine was being calculating in that she knew
Defendant had not accepted the community college proposal when she
communicated with Orchard Academy prior to the start of John’s program. But it
also seems improbable. Nothing in Christine’s communications suggests that she
had anything other than a good faith belief that the parties’ agreement was as she
described. Moreover, Defendant’s attempt to infer bad faith from the fact that
Christine did not copy Defendant on her communications with Orchard is weak; as
Christine testified, Orchard was delivering John’s educational program on behalf of
Defendant, so she reasonably may not have thought she needed to copy Defendant.
In addition, it seems highly doubtful that Christine’s actions were designed to be
“clandestine,” as Defendant suggests (R. 75 at 19 n.9), because it would be expected
that Orchard would communicate with Defendant at some point, and then her socalled “deceitful conduct” would be discovered (which of course it was).
51
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That is what the collaborative process is all about. What Smith did instead was
fundamentally not “collaborative.”
In the end, Defendant’s arguments regarding the parents’ noncooperation
depend entirely on Defendant’s view of the parties’ contractual obligations being
correct when clearly there was a good faith dispute over what those contractual
obligations were. Given that a good faith dispute existed, Defendant could not simply
declare what the agreement was without violating John’s parents’ procedural rights
to a collaborative decision-making process. But what is perhaps even more puzzling
to the Court is that Defendant disregarded the contractual aspect of the dispute.
That is, Plaintiffs had a contractual right to what was promised in the Settlement
Agreement independent of their rights under the IDEA. If that were not the case, it
would have been pointless for Plaintiffs to have entered into the Settlement
Agreement; whatever rights they had under the IDEA for John’s education going
forward existed before the settlement and would continue to exist after the
settlement, making the Settlement Agreement superfluous. Not only that, but they
would have gained nothing when they gave up their right to claim damages and
attorneys’ fees for Defendant’s past violations.
This discussion is not to decide the substantive issue of whether Smith had
the legal or statutory right to do what she did; it is rather to expose the logical flaw
in Defendant’s noncooperation argument. All of the conduct that supposedly
constituted noncooperation by John’s parents can only be viewed as noncooperation
if Defendant is correct on the merits issues yet to be decided by the Court. On the
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one hand, if the Court were to rule in favor of the parents, then their conduct cannot
be characterized as “noncooperation”; on the other hand, if the Court were to rule in
favor of Defendant, then Defendant would not need a noncooperation defense to
Plaintiffs’ claims. In short, the parents’ cooperation or lack thereof is irrelevant to
the issues in this case. But Defendant having raised the issue, it is the Court’s view
that the facts do not show noncooperation by Plaintiffs. Instead, the record shows
that Plaintiffs acted according to a good faith belief, whether right or wrong, as to
their contractual and statutory rights, while Defendant disregarded the possibility
that Plaintiffs’ could be correct about their contractual rights and also disregarded
its duty under the IDEA to collaborate with Plaintiffs before making any decisions
concerning John’s educational placement. See, e.g., Bd. of Educ. of Evanston-Skokie
Cmty. Consol. Sch. Dist. 65, 2013 WL 3224439, at *24-25 (“There is considerable
evidence in the record to support the hearing officer’s conclusion that L.J.’s parents
cooperated. Indeed, the District’s continued pursuit of this theory borders on the
frivolous. . . . There is no basis to deny reimbursement for lack of cooperation . . . . If
anything, L.J.’s parents exhibited extraordinary patience in dealing with the
District.”).
CONCLUSION
In accordance with the terms and conditions set forth above and as
previously ordered, R. 81, Plaintiffs’ motion for summary judgment, R. 49, and
Defendant’s cross-motion for summary judgment, R. 51, are denied. A status
hearing is set for February 15, 2017 at 9:00 a.m. Neither party has made a jury
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demand, so the parties should be prepared to discuss at the status an appropriate
date for a bench trial.
ENTERED:
Thomas M. Durkin
United States District Judge
Dated: February 2, 2017
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