K.P. et al v. City of Chicago SD #299

Filing 33

MEMORANDUM Opinion and Order signed by the Honorable Ronald A. Guzman on 2/25/2015: For the reasons set forth above, the Court overrules plaintiff's objections to Magistrate Judge Cole's R&R, adopts the R&R 21 in its entirety, and denies plaintiff's motion for a preliminary injunction 4 . Mailed notice (cjg, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
K.P., a minor, by J.P., her mother
and next friend,
Plaintiff,
vs.
CITY OF CHICAGO SD #299,
Defendant.

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No. 14 C 7296
Judge Ronald A. Guzmán

MEMORANDUM OPINION AND ORDER
Plaintiff alleges that defendant violated the Individuals with Disabilities Education Act
(“IDEA”) and the Americans with Disabilities Act (“ADA”) by refusing to let her use a hand-held
calculator while taking the Northwest Evaluation Association Measure of Academic Progress
(“MAP”) test. Plaintiff filed a motion for a preliminary injunction, which the Court referred to
Magistrate Judge Cole for a Report and Recommendation (“R&R”). After briefing and argument,
Judge Cole issued an R&R recommending that the motion be denied. The case is before the Court
on plaintiff’s objections to the R&R. For the reasons set forth below, the Court overrules the
objections, adopts the R&R in its entirety, and denies plaintiff’s motion for preliminary injunction.

Facts
K.P. is an eighth grader who is eligible for special education services. (Compl. ¶ 3.) In
January 2013, the parties created an Individualized Education Plan (“IEP”) for K.P. that includes “use
of a calculator” as a classroom mathematics accommodation, and states that K.P. will “participate in
the district [and state] assessments WITH ALLOWABLE accommodations/modifications that are

necessary to measure academic achievement and functional performance.” (R&R at 3; see City
Mem. Opp’n Pl.’s Mot. Prelim. Inj., Ex. 10, 1/29/13 IEP at 7, 9.) The 2013 IEP does not list a handheld calculator as an accommodation. (See generally City Mem. Opp’n Pl.’s Mot. Prelim. Inj., Ex.
10, 1/29/13 IEP.)
Sometime between January 2013 and July 2014, defendant started requiring students to obtain
a threshold MAP score to qualify to take the entrance exams for selective enrollment high schools
and using the test score as one-third of the 900 point selection rubric for those schools. (R&R at 4.)
The MAP test is taken on a computer, and for a portion of the math questions, an on-screen calculator
pops up for the student to use. (Id. at 3.) For the rest of the math questions, however, the calculator
disappears, and the students must perform computations on their own. (Id.)
The Northwest Evaluation Association (“NWEA”), which created the MAP test, recognizes
two kinds of accommodations: (1) standard (also called allowable) accommodations; and (2) nonstandard accommodations. (Id. at 4; see Def.’s Mem. Opp’n Pl.’s Mot. Prelim. Inj., Ex. 6, NWEA
Accommodations for MAP® Assessments at 1-2.) Standard accommodations are those that “will be
irrelevant to, or only minimally affect the validity of the student’s test score.” (R&R at 4; see Def.’s
Mem. Opp’n Pl.’s Mot. Prelim. Inj., Ex. 6, NWEA Accommodations for MAP® Assessments at 1.)
Non-standard accommodations are those that “have the potential to bias the students’ test score,” and
include “[u]sing a calculator for questions that do not have an on-screen calculator.” (R&R at 4; see
Def.’s Mem. Opp’n Pl.’s Mot. Prelim. Inj., Ex. 6, NWEA Accommodations for MAP® Assessments
at 2) (emphasis original). The NWEA does not preclude schools from making non-standard
accommodations during MAP tests if, for example, an IEP requires it. (See Def.’s Mem. Opp’n Pl.’s
Mot. Prelim. Inj., Ex. 6, NWEA Accommodations for MAP® Assessments at 2.) “However, [the

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school] leadership has the responsibility for . . . interpret[ing] . . . the test results” and “track[ing] nonstandard accommodations so they can be factored in interpretations.” (Id.) Further, the NWEA states
that “[t]he greater the use of non-standard accommodations . . . , the weaker the validity of the
inference that can be drawn from the student’s score,” which “should be considered when interpreting
test scores or using them to make important educational decisions.” (Id.)
In May 2014, after discovering that the use of hand-held calculators was generally not
permitted during the MAP test, K.P.’s mother wrote a letter to defendant asking whether K.P. would
be allowed to use one pursuant to her IEP. (R&R at 5.) Defendant did not respond to her letter, but
she was contacted shortly thereafter about updating K.P.’s IEP. (Id.) The parties met in July and
created a new IEP that lists both “use of a calculator” and “[u]se [of a] hand held calculator” as
classroom mathematics accommodations, but also states that K.P. will take district and state
assessments “WITH ALLOWABLE accommodations/modifications.” (Id. at 3-4; see City Mem.
Opp’n Pl.’s Mot. Prelim. Inj., Ex. 11, 7/16/14 IEP at 6-9.)
In September 2014, K.P.’s mother asked defendant to confirm that K.P. would be allowed to
use a hand-held calculator during the math portion of the MAP test, which K.P. was scheduled to take
on October 4, 2014.1 (R&R at 6.) Defendant told her that K.P. would not be allowed to do so, and
this suit followed.

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Defendant agreed to postpone the test until after this Court’s ruling on the objections to
the R&R. (See id. at 9 n.5.)

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Discussion
Federal Rule of Civil Procedure 72(a) instructs the Court to make a de novo determination
of those portions of the R&R to which plaintiff objects. Id. The Court may “accept, reject, or
modify” the R&R, “receive further evidence or recommit the matter to the magistrate judge with
instructions.” 28 U.S.C. § 636(b)(1).
Plaintiff objects to the Magistrate Judge’s conclusion that she is unlikely to succeed on her
claim that defendant violated the IDEA by failing to give her parents prior notice of the removal of
the hand-held calculator accommodation from her IEP. (See Compl., Count I); 20 U.S.C. §
1415(b)(3)(A) (requiring a school to give “[w]ritten prior notice to the parents of the child, . . .
whenever [it] . . . propose[s] to initiate or change” an IEP). As an initial matter, the Magistrate Judge
said it was not clear that there had actually been a change in plaintiff’s IEP, “given [its] wording . .
. [,] its explicit limitation to ‘ALLOWABLE’ accommodations, [and] the NWEA guidelines on
non-standard accommodations.” (R&R at 8.) Even if there had been one, however, Judge Cole said
K.P.’s parents had actual notice of the alleged change, and thus the lack of written notice neither
prejudiced them nor violated the IDEA:
. . . . As far as the notice requirement, there is no harm, no foul because, as is clear
from the plaintiffs’ submissions, they were well aware that K.P. would not be allowed
the hand-held calculator accommodation on portions of the Test where there is no
on-screen calculator. They have identified no prejudice resulting from lack of written
notice. Nor have they cited any case law in support of injunctive relief for the failure
to provide written notice. They’ve filed suit, have had the testing schedule altered to
allow for adjudication of their Americans With Disabilities Act (“ADA”) claim, and
will have their day in court without harm to K.P.
(Id. at 9) (emphasis original).
Plaintiff contends that this conclusion is erroneous because even a non-prejudicial violation
of the notice provision is actionable. The Court disagrees. The purpose of the IDEA’s notice

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provision is “to ensure that the parents of a child with a disability are both notified of decisions
affecting their child and given an opportunity to object to these decisions.” C.H. v. Cape Henlopen
Sch. Dist., 606 F.3d 59, 70 (3d Cir. 2010). “Thus in cases where a violation of a notification
requirement does not actually impair the parents’ knowledge of, or participation in, educational
decisions, the violation is not a substantive harm under the IDEA.” Id.; see K.A. ex rel. F.A. v. Fulton
Cnty. Sch. Dist., 741 F.3d 1195, 1204-05 (11th Cir. 2013) (dismissing IDEA claim, though school
had not provided required notice, because the violation did not prejudice the parents); Thomas v.
Cincinnati Bd. of Educ., 918 F.2d 618, 625 (6th Cir. 1990) (“Although we are not called upon to
decide whether all violations of [IDEA’s] procedural requirements are to be assessed according to
a separate test of prejudice, we are of the opinion that inquiry is proper [in the notice context], since
the only error was one of technical noncompliance which did not result in any substantive
deprivation.”), superseded in part on other grounds by regulation as recognized in, N.W. ex. re. J.W.
v. Boone Cnty. Bd. of Educ., 763 F.3d 611 (6th Cir. 2014); see also Hjortness ex rel. Hjortness v.
Neenah Jt. Sch. Dist., 507 F.3d 1060, 1065 (7th Cir. 2007) (stating, in the context of a school’s failure
to hold a second IEP meeting, that “this procedural violation does not rise to the level of a denial of
a free appropriate public education . . . . [because the] parents’ rights were [not] in any meaningful
way infringed”). Such is the case here. Therefore, the Court agrees with Magistrate Judge Cole that
plaintiff does not have a likelihood of success on the merits of her IDEA claim.
Judge Cole also concluded that plaintiff is not likely to succeed on her ADA claim because
she did not show that the accommodation she seeks is reasonable:
Allowing K.P. to use a calculator to answer questions that are designed to assess her
ability to perform math calculations is not an accommodation that in the plaintiffs’
words “level the playing field.” Quite the contrary. It would permit K.P. to replace
her allegedly limited computational skills with a mechanical tool of infinite capacity

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(at least in the context of this case) that likely exceeds the computational capabilities
of perhaps all – and certainly most – non-disabled students. That is not a reasonable
accommodation but a substitution of artificial intelligence for the very skill the Test
seeks to measure.
Plaintiffs allow that K.P.’s use of a hand-held calculator throughout the entire math
test will lead CPS to invalidate the results, but insist that should . . . that occur that
will raise an issue that may be “ultimately be decided in this forum or elsewhere.”
(Dkt. # 7-1, at 6). Implicit in this argument is a recognition that the Test will be
invalidated, thereby ensuring future litigation over the permissibility of that
invalidation. But, an accommodation that serves to scrap the results of a three hour
test – and prompts additional litigation – does not qualify as “reasonable.”
Accommodations are not reasonable if they impose undue financial and
administrative burdens.
(R&R at 10-11) (footnotes and citations omitted).
Plaintiff contends that she offered evidence, the declarations of her mother, J.P., and her
learning disabilities specialist, Katherine Siavelis, to show that her use of a hand-held calculator
would not render her test results invalid, but Judge Cole erroneously refused to consider them. (See
Pl.’s Objs. at 4; R&R at 6-7 n.4 (stating that he disregarded the declarations because plaintiff
submitted them for the first time on reply and the relevant portion of J.P.’s declaration was
inadmissible).) Even if Judge Cole had considered the declarations, however, it would not have
helped plaintiff’s case. Siavelis’ declaration does not address the validity issue at all, and J.P.’s
declaration only addresses it through inadmissible hearsay. (See Pl.’s Reply, Ex. 4, J.P. Decl. ¶¶ 3435 (quoting a passage from an article published by an education consortium); see generally id., Ex.
5, Siavelis Decl.).) Because the declarations would not have bolstered plaintiff’s proof even if Judge
Cole had considered them, his refusal to do so was not erroneous.
Plaintiff also argues that there is no basis for the finding that K.P.’s use of a hand-held
calculator would, in fact, render the test results invalid. (Pl.’s Objs. at 7.) Once again, the Court
disagrees. The record shows that the MAP test’s creator: (1) deems the use of a hand-held calculator

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to be a non-standard accommodation, i.e., one that has the potential to bias the score; (2) cautions
schools that “the greater the use of non-standard accommodations . . . , the weaker the validity of the
inference that can be drawn from the student’s score,” and discourages them from relying on such
inferences “to make important educational decisions”; and (3) makes schools responsible for
interpreting MAP test results and factoring the use of non-standard accommodations into those
interpretations. (R&R at 4; see Def.’s Mem. Opp’n Pl.’s Mot. Prelim. Inj., Ex. 6, NWEA
Accommodations for MAP® Assessments). It further shows that defendant, the party vested with
the authority to and responsibility for interpreting the test results, deems MAP scores obtained by a
student who uses a hand-held calculator throughout the test to be invalid. (Def.’s Mem. Opp’n Pl.’s
Mot. Prelim. Inj., Ex. 4, Barker Decl. ¶¶ 1, 13-14 (testimony of defendant’s Chief Accountability
Officer that, based on the NWEA guidance,“[i]f defendant learn[s] that a student used a non-standard
accommodation, his/her score will be invalidated” and will not be used for determining eligibility for
selective enrollment high school testing or admissions).) In short, Judge Cole’s conclusion that the
accommodation plaintiff seeks is unreasonable because it would invalidate her MAP test results is
fully supported by the record.
Finally, plaintiff objects to Judge Cole’s determination that the public interest disfavors
injunctive relief because K.P.’s use of a hand-held calculator would give her more time to complete
the test than other students. (Pl.’s Objs. at 3; see R&R at 16.) Plaintiff asserts that the MAP test is
not timed, and thus the “advantage” identified by the Magistrate Judge is illusory. Even if plaintiff’s
assertion about the test is true, and she cites no evidence to support it, that fact would not change
Judge Cole’s conclusion about the public interest factor. Rather, as the R&R makes clear, Judge

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Cole’s conclusion was based on the overall advantage over other students that the requested
accommodation would give K.P.:
[I]f plaintiffs’ contention is accepted, while other students are working through
mathematical calculations in their head as best as their capabilities will permit, with
inevitable mistakes, K.P. need only turn to her calculator to achieve likely perfect
results. Moreover, because of the increased speed with which the calculator will
enable her to go through the problems, K.P. will have more time than other students
to answer the more difficult questions as she progresses through the phases of the
Test, thereby effectively multiplying K.P.’s extra time accommodation as well.
The only sticking point might be if the plaintiffs’ contention – which is unsupported
by any evidence – that incorrect answers on the calculation questions will rob K.P.
of her opportunity to answer questions about mathematical concepts is correct. Even
if it is, though, there is an inequity when the other students are considered. Suppose
there is an “adaptive” basketball skills competition that includes a dunk portion and
three-point shooting portion. For every successful dunk, a player gets 5 three-point
shot attempts. One player – who has no problem shooting long range – has a handicap
that prevents him from jumping and he demands and receives a ten-foot ladder for the
dunk portion of the Test. The accommodated player is guaranteed not only a perfect
score on the dunk contest, but far more three-point attempts that the other players.
That’s not a “level playing field,” and the public interest in fairness to the other
players – the other students here – is compromised.
(R&R at 16-17.) Because the time element was not determinative of the public interest inquiry,
Judge Cole’s alleged error is not a basis for rejecting his conclusion.

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Conclusion
For the reasons set forth above, the Court overrules plaintiff’s objections to Magistrate Judge
Cole’s R&R, adopts the R&R [21] in its entirety, and denies plaintiff’s motion for a preliminary
injunction [4].
SO ORDERED.

ENTERED:

February 25, 2015

__________________________________
HON. RONALD A. GUZMAN
United States District Judge

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