Jackson v. Chicago Public Schools et al

Filing 73

MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 6/13/2017: Ruling date of 6/27/2017 is stricken.Terminate civil case.Mailed notice(wp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

KIMYUNA JACKSON, MOTHER OF
PLAINTIFF A MINOR CHILD,
JABARI LAMAR JACKSON,
Plaintiff,
Case No.

15 C 6990

v.
Judge Harry D. Leinenweber
CHICAGO PUBLIC SCHOOLS, et
al. and THE ILLINOIS STATE
BOARD OF EDUCATION, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
The
Jabari

Plaintiff,
Lamar

plaintiffs”),
Independent
Defendant,
“Board”),

Kimyuna

Jackson
seeks

Hearing
Board

of

developed

Jackson,

(Collectively,

judicial
Officer
Education
an

mother

review

of

(“IHO”)
of

the

Individualized

the
the

of

minor

child,

“Plaintiff
decision

who

found

City

of

Education

of

or
an

that

the

Chicago

(the

Plan

(“IEP”)

which identified the Plaintiff-student’s special education needs
and services in a timely manner under the circumstances of this
case.
proving

Because the Plaintiff has failed to sustain her burden of
the

IHO

wrong,

the

Plaintiff’s

Motion

for

Summary

Judgment is denied and the case is dismissed with prejudice.

I.

BACKGROUND

This case has had a tortured procedural history due to the
Plaintiff proceeding pro se.

Back in August 2015 the Plaintiff

filed a four-count Complaint against the Board to assert a tort
(sexual assault) claim (Count I), and seeking to overturn the
IHO’s

decision

contending

that

(1)

that

Plaintiff

did

not

receive a Free and Appropriate Public Education (“FAPE”), (2)
the IHO exhibited and “unethical [sic] bias” toward plaintiffs
during the due process hearing, and (3) that the Board violated
the State and federal requirement that that Plaintiff’s IEP be
issued within 60 days of receiving a parental consent for an
evaluation.

(Counts II-IV).

On August 18, 2015, the Court

dismissed Count I as inappropriate for an administrative review
proceeding and summarized all of her remaining claims as seeking
judicial review of the IHO’s decision approving the IEP for the
plaintiff’s son.

On February 8, 2016, Plaintiff filed a Motion

seeking Summary Judgment on the four counts of her Complaint as
originally filed, even though the Court had dismissed Count I
and consolidated her remaining claims into a single count.

The

Court summarily denied her Motion because, among other things,
it violated Local Rule 56.1, and warned Plaintiff that if she
wished to refile she needed to focus on the limited issue of
whether the IHO’s decision was erroneous.
- 2 -

She then filed a

second Motion

for

Summary

Judgment

comply with Local Rule 56.1.

but

once

again

failed

to

The Court once more denied her

Motion and again warned her that she needed to focus on the IHO
decision

and

follow

the

local

rules.

On

April

28,

2017,

Plaintiff, now represented by counsel, filed her third Motion
for

Summary

Judgment,

which

now

focused

only

on

the

IEP’s

timeliness issue, to the exclusion of her claims that the Board
had not provided Plaintiff with a FAPE or provided necessary
services in a timely manner, and her ethnic bias claim.
II.
Under

the

STANDARD OF REVIEW

Individuals

with

Disabilities

Education

Act

(“IDEA”), local agencies such as the Board have an affirmative
duty to identify, locate and evaluate a potentially disabled
child

and

provide

education services.

an

IEP,

designed

to

with

need

special

Failure to do so constitutes a denial of a

FAPE, and is a violation of the IDEA.
dissatisfied

provide

an

IEP

hearing before an IHO.

may

seek

Under the IDEA a party

review

at

a

due

process

The decision of the IHO in turn is

reviewable by a federal district court, with the party seeking
relief bearing the burden of proof.
is

to

determine

procedural

whether

requirements

the
of

The reviewing court’s role

District

the

IDEA

has
and

complied
whether

with

the

IDE

the
is

reasonably calculated to enable the child to receive educational
- 3 -

benefits.

The reviewing court is to make its decision on a

preponderance of the evidence standard, and shall grant such
relief

as

the

court

determines

is

appropriate.

20

U.S.C.A.

§ 1415(i)(C).
The normal procedure before the reviewing court is to rule
by summary judgment at the request of either party or both.
The

standard

for

summary

judgment

for

this

type

of

administrative review differs from the standard set forth in
Rule 56 (FED. R. CIV. P. 56).

In this proceeding the court

reviews the administrative record together with any additional
evidence

submitted

and

decides

factual

preponderance of the evidence in the record.

based

on

the

The court also

owes considerable deference to the hearing officer and may set
aside the administrative order only if is strongly convinced
that the order is erroneous.

Evanston Community Consolidated

School Dist. v. Michael M., 356 F.3d 798, 793 (7th Cir. 2004).
III.

THE DUE PROCESS HEARING

On June 3, 2015, a due process hearing was held before the
IHO.

Plaintiff represented herself at the hearing.

She had

failed to provide the required pre-hearing disclosures ordered
by the IHO at a prehearing conference.

At the hearing she also

withdrew the list of witnesses she had previously provided to
the IHO.

At the hearing, the Board presented six witnesses all
- 4 -

of whom had participated in the evaluation of the Plaintiff and
helped

formulate

documentation

his

IEP.

relevant

to

development of his IEP.

These

Plaintiff’s

witnesses

produced

evaluations

and

the

The Plaintiff testified in her own

behalf but presented no other witnesses, nor did she offer any
documents into evidence.

She did, however, conduct a cross-

examination of the Board’s witnesses.
Following the due process hearing the IHO found in favor of
the Board on all contested issues, including a finding that the
Board’s

evaluations

were

conducted

within

the

IDEA’s

and

Illinois’ 60 school day time line although the IEP itself was
developed outside the 60-day timeline.

The IHO found that the

that the delay was due to Plaintiff’s failure to attend the
scheduled meetings where the IEP was developed and the Board’s
continuing

effort

to

include

Plaintiff

in

the

development

process.
The specific factual findings made by the IHO upon which
she relied to excuse the 60-day violation (with which Plaintiff
apparently does not take issue, at least she did not do so at
the due process hearing) included that the Board had made its
evaluation and its determination of eligibility of plaintiff for
an IEP within the 60-day deadline, but was not able to finalize
the IEP by that due date.

The IHO found that the delay in
- 5 -

completing the IEP was due to the Board’s effort to include the
Plaintiff mother in the development of the IEP.

The IHO then

described the specific efforts the Board undertook to try to
involve the Plaintiff in the development of her son’s IEP.

This

included a scheduling a meeting between the Board and Plaintiff
to be held within the 60-day deadline, at which Plaintiff did
not

attend;

meeting

the

with

Board’s

plaintiff

multiple
in

attempts

February

and

to

in

re-schedule

March

2015;

a

and

multiple written notices and telephone calls to Plaintiff urging
her to attend the scheduled meetings; and finally Plaintiff’s
failure to attend or at least acknowledge the invitations.
In
IHO’s

her

brief,

the

determination

Board’s

that

unsuccessful

only

response

the

delay

efforts

to

Plaintiff

was

makes

excusable

include

due

Plaintiff

to

the

to

the

in

the

development of the IEP was to point out that the final IEP did
not

substantially

Evaluation

(“IEE”)

differ
conducted

from
in

an

Independent

August

2014

at

Education
Plaintiff’s

expense which was prior to his enrollment at his school.

Her

point

was

apparently

unnecessary.

was

that

the

development

of

the

IEP

She also complains that the Board did not include

a “safety plan” in the IEP, which she contends was necessitated
by an incident that allegedly occurred in January 2015.
the

IHO

pointed

out

in

her

decision
- 6 -

that

Plaintiff

However
did

not

present any evidence to support a finding that the Plaintiff’s
disabilities

required

a

safety

plan.

Plaintiff

withdrew

witnesses who she claimed could support such a finding and did
not herself testify about any such concerns she may have had.
Therefore

the

record

did

not

support

her

contention

that

a

safety plan was necessary.
The
District,

Supreme
550

enforceable

Court

U.S.

rights

in

516,
in

the

Winkelman

held

that

v.

Parma

parents

entitlement

public education for their children.

of

a

City

School

have

independent

free

appropriate

The statutory basis for

this right is found in Section 1414(b)(1) which gives parents of
a child the right to examine all records and to participate in
all meetings with respect to the development of an IEP.

This

amounts to a statutory mandate that the parents be given the
opportunity
development

to
of

be
an

consulted
IEP.

It

and

would

to
be

participate
inconsistent

in

the

with

this

statutory mandate to penalize the Board because it was unable to
complete the IEP within the 60-day deadline because it went out
of its way to include the Plaintiff in the development of her
child’s IEP.

The IHO’s decision that the delay was excusable is

supported by a preponderance of the evidence and the plaintiff’s
motion for summary judgment is denied.

- 7 -

One final note.
only

on

one

appeal.

of

the

The Plaintiff moved for summary judgment
several

grounds

upon

which

she

The Board did not file a Cross-Motion.

took

an

Normally a

court would only issue a decision limited to what is requested
in

a

Motion.

proceeding

that

However
is

in

limited

a
to

review
the

of

an

administrative

administrative

record

as

supplemented there appears to be no reason not to issue a final
judgment disposing of the case.

Here the Plaintiff takes issue

only with one of many findings of the IHO:
the IEP.

the timeliness of

The Plaintiff did not offer any evidence at the due

process hearing (other than her own testimony) and she did not
raise objections to any other part of the IHO’s decision.
IV.

CONCLUSION

Since the record supports all parts of the decision, the
Court denies the Plaintiff’s Motion for Summary Judgment, and
enters judgment in favor of the Board sui sponte.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
Dated: June 13, 2017
- 8 -