I.W. v. Lake Forest High School District No. 115 et al
Filing
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MEMORANDUM Opinion and Order: Plaintiffs' and Defendant's motions for summary judgment [25, 28] are denied. The Hearing Officer's Order is vacated, and the case is remanded to the Hearing Officer for further consideration consistent with this opinion. Signed by the Honorable Rebecca R. Pallmeyer on 2/7/2019. Civil case terminated. Mailed notice. (etv, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
I.W., a minor, by and through parents
A.M.V. and D.W.,
Plaintiff,
v.
LAKE FOREST HIGH SCHOOL DISTRICT
NO. 115 and ILLINOIS STATE BOARD OF
EDUCATION,
Defendants.
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No. 17 C 7426
Judge Rebecca R. Pallmeyer
MEMORANDUM ORDER AND OPINION
I.W. is a teenage high school student with multiple disabilities that affect her educational,
social, and psychological development. She resides with her parents within Lake Forest High
School District No. 115 (“the District”). After she spent the 2014-15 school year attending Lake
Forest High School, I.W.’s parents removed her from the school and placed her in a private
residential high school in Massachusetts. They filed a due process complaint with the Illinois
State Board of Education against the District in April 2016, arguing that the District had failed to
provide I.W. with the “free appropriate public education” (“FAPE”) required by the Individuals with
Disabilities Education Act (“IDEA”), 20 U.S.C. § 1412(a)(1)(A), and requesting reimbursement for
two school years of private school tuition.
An independent hearing officer heard the complaint, pursuant to 20 U.S.C. § 1415, and
concluded that the school had failed to provide I.W. a FAPE. 1 Defendant Lake Forest High School
District No. 115 has not challenged that determination. The Hearing Officer also determined,
however, that I.W.’s Parents were not entitled to reimbursement because they had not proven
that the private school was an appropriate placement for I.W. (Final Determination and Order
1
The District has not challenged this determination.
(“I.H.O. Order”) [23-1], at AR 281, 283.). I.W., by and through her parents, filed an appeal of that
tuition reimbursement decision with this court. Plaintiffs and Defendant Lake Forest High School
District No. 115 now cross-move for summary judgment solely on the issue of reimbursement. 2
STANDARD OF REVIEW
The standard for summary judgment in an IDEA case differs from that of typical motions
for summary judgment. M.B. ex rel. Berns v. Hamilton Se. Sch., 668 F.3d 851, 859 (7th Cir.
2011).
Under the IDEA, “the district court ‘shall receive the records of the administrative
proceedings, shall hear additional evidence at the request of a party, and, basing its decision on
the preponderance of the evidence, shall grant such relief as the court determines is appropriate.’”
Evanston Cmty. Consol. Sch. Dist. No. 65 v. Michael M., 356 F.3d 798, 802 (7th Cir. 2004)
(quoting 20 U.S.C. § 1415(e)(2)). In cases like this one, where the parties have submitted no
additional evidence, “[t]he motion for summary judgment is simply the procedural vehicle for
asking the judge to decide the case on the basis of the administrative record.” M.B. ex rel.
Berns v. Hamilton Southeast Sch., 668 F.3d 851, 860 (7th Cir. 2011) (internal quotation marks
and citations omitted) (modification in original).
In reviewing the administrative record, the hearing officer’s determinations of law are
reviewed de novo. M.B., 668 F.3d at 860. See Marshall Joint Sch. Dist. No. 2 v. C.D. ex rel.
Brian D., 616 F.3d 632, 636 (7th Cir. 2010) (noting that legal issues receive “plenary review”).
The hearing officer’s findings of fact are owed “due weight.” M.B., 668 F.3d at 860. “This review
is equivalent to a ‘clear-error’ or ‘substantial-evidence’ standard.” M.B., 668 F.3d at 860. See
Alex R., ex rel. Beth R. v. Forrestville Valley Cmty. Unit Sch. Dist. No. 221, 375 F.3d 603, 612
Plaintiffs’ Complaint [1] contains two counts. Count I claims that Defendant failed
to provide I.W. a FAPE, in violation of IDEA § 1412, and Count II claims I.W.’s Individualized
Education Programs (“IEPs”) were deficient, in violation of § 1414. The Hearing Officer, in fact,
found in Plaintiffs’ favor on both counts in his prior ruling. The court thus construes Plaintiffs’
complaint as a challenge solely to the Hearing Officer’s finding on the reimbursement issue.
(Complaint [1], at ¶¶ 5–6, 12–14 (stating that I.W. and her parents seek to uphold the hearing
officer’s determination that the District failed to provide I.W. with a FAPE, but seek to overturn his
denial of tuition reimbursement).)
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(7th Cir. 2004) (noting that, when a district court “relies solely on the administrative record, it owes
considerable deference to the hearing officer, and may set aside the administrative order only if
it is ‘strongly convinced that the order is erroneous’”) (quoting School Dist. v. Z.S., 295 F.3d 671,
675 (7th Cir.2002)). At all times, “the party challenging the outcome of the administrative hearing
bears the burden of persuasion in the district court.” Marshall Joint Sch. Dist. No. 2 v. C.D. ex
rel. Brian D., 616 F.3d 632, 636 (7th Cir. 2010) (citing Alex R. v. Forrestville Valley Cmty Unit Sch.
Dist., 375 F.3d 603, 611 (7th Cir.2004)).
BACKGROUND
I.
I.W.’s Early Life and Elementary School Experience
When she was three years old, I.W. was adopted by her mother and father (“Parents”).
Shortly thereafter, she was diagnosed with “mixed receptive-expressive language disorder” and
fetal alcohol exposure. (Df.’s Local Rule 56.1 Statement of Undisputed Material Facts (“Df.’s
SOF”) [27], at ¶ 8.) At the age of seven, I.W. underwent a private psychological evaluation by
Clinical Psychologist Dr. Rebecca Nelson (“2007 Report”). (Id. at ¶ 9; Pl.’s Statement of Facts
Pursuant to Rule 56.1 (“Pl.’s SOF”) [30], at ¶ 5. See 2007 Report [23-2], at AR 545. 3) The Hearing
Officer summarized Dr. Nelson’s 2007 findings:
Dr. Nelson identified many clinically elevated levels of anxiety, decreased selfesteem, relatively less favorable social skills than peers, significant challenges in
language-based problem solving, perceptual reasoning difficulties, and impaired
working memory. Dr. Nelson found the Student to have relatively low cognitive
ability and to be highly distractible. At that time Dr. Nelson found that the Student
did not meet the clinical criteria for Attention Deficit-Hyperactivity Disorder
(“ADHD”).
The Illinois State Board of Education filed the sealed administrative record (“AR”)
as document 23 in this case. When the court refers to a document in the AR, it will reference the
consecutive pagination that appears in the bottom center of each page. The hearing transcript
was also submitted as part of document 23, but it contains separate pagination. When citing to
that transcript, the court will so note.
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(I.H.O. Order [23-1], at AR 267.) Dr. Nelson made several recommendations based on her
findings, including “an IEP [Individualized Education Program 4] or 504 plan[,] . . . a multitude of
suggested accommodations and modifications,” such as preferential seating and breaking down
lengthier assignments, and “speech and language and social skills services.” (Df.’s SOF [27] at
¶ 9. See Pl.’s SOF [30], at ¶¶ 5–6; 2007 Report [23-2], at AR 566–570 (listing all of Dr. Nelson’s
educational recommendations).)
At the end of I.W.’s fourth-grade year, clinical neuropsychologist Dr. Jo-Anne Hoeppner
and psychoeducational diagnostician Dr. Dorit Raviv conducted second private psychological
evaluation (“2010 Report”).
(2010 Report [23-2], at AR 319.)
By that time, I.W.’s child
psychologist, Dr. Bloomberg, had diagnosed her with ADHD (inattentive subtype), and she was
taking ADHD medication. (Pl.’s SOF [30], at ¶ 9; 2010 Report [23-2], at AR 326, 327.) The 2010
Report found that I.W. “demonstrated solidly average verbal and nonverbal reasoning as well as
processing speed. This represents a significant improvement relative to the previous evaluation
three years ago.” (2010 Report [23-2], at AR 326.) The evaluators also found, however, that she
had “some difficulties on working memory tasks that have a sequencing component,” that her
“deficits [were] still apparent in her weak vocabulary, difficulty with auditory sequencing and
following directions,” and that she had some trouble with math.
(Id.)
This Report again
recommended, among other things, adding executive functioning goals to her IEP, providing her
with a host of reading strategies, giving her repeated instructions accompanied by visuals,
providing extra vocabulary support, and continuing speech and language services. (Id. at AR
“Under the IDEA, an ‘individualized education program,’ called an IEP for short,
serves as the ‘primary vehicle’ for providing each child with the promised FAPE. Crafted by a
child's ‘IEP Team’—a group of school officials, teachers, and parents—the IEP spells out a
personalized plan to meet all of the child's ‘educational needs.’ Most notably, the IEP documents
the child's current ‘levels of academic achievement,’ specifies ‘measurable annual goals’ for how
she can ‘make progress in the general education curriculum,’ and lists the ‘special education and
related services’ to be provided so that she can ‘advance appropriately toward [those] goals.’”
Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743, 749 (2017) (citations removed).
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327–29.) The Hearing Officer found three recommendations from the Report to be particularly
“noteworthy”:
First, it was suggested that Language Arts instruction and speech and language
therapy be coordinated for the Student. Second, assistive technology for written
expression was recommended. Third, a multi-sensory sequential explicit math
program that included, for example, visuals, manipulatives and practical examples
was suggested.
(I.H.O. Order [23-1], at AR 267.)
Several other professionals began working with I.W. during her elementary school years.
Ellen Kroft Apley (“Kroft”), an educational therapist, began working with I.W. before first grade, in
July 2006. (Pl.’s SOF [30], at ¶ 7.) Speech and language pathologist Mara Lane has worked with
I.W. since 2008, when she was in third grade. Dr. Bloomberg, the child psychiatrist mentioned
above, also began working with I.W. while she was in third grade. (Id. at ¶ 9; Df.’s SOF [27], at
¶ 16.) Each of these individuals has continued to be involved with I.W. through the time of this
case’s filing.
At some point prior to the eighth grade, I.W. appears to have been placed on an IEP, as
recommended by the 2007 Report. (See Document List [23-1], at AR 128 (noting the existence
of a 2010 IEP).) A detailed discussion of I.W.’s past IEP’s is not necessary to the resolution of
the tuition reimbursement issue in this case. 5 Some background on her early education is helpful,
5
In his Final Determination and Order, the Officer explained:
[T]he IEP implemented during [I.W.’s] first semester [at LFHS] was the
documented dated February 7, 2014. This IEP . . . and the process used to
develop it were seriously procedurally flawed, and as a result, the Parents were
denied a meaningful opportunity to participate in the IEP process, denying the
Student educational benefit.
(I.H.O. Order [23-1]. at AR 282.) He continued by finding that I.W.’s IEP “for the remainder of her
freshman year also denied her a FAPE.” Id. at AR 283. He explained that “IEP of January 26,
2015 . . . met IDEA’s procedural requirements, but failed to substantively address [I.W.’s]
educational and related services needs in accordance with the evaluations and recommendations
available to the District at the time. It was also based on dated information.” Id. The District has
not challenged these findings.
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however. In 2011, I.W. was attending fifth grade at Deerpath School in Lake Forest. In the middle
of that year, she was moved to a therapeutic day program called the Cove School, at least in part
due her experiencing “significant anxiety and stress” at Deerpath. 6 (Evaluation of IEP Data
1/5/2011 [23-3], at AR 753. See also Hearing Transcript [25-3], at 46:12–15 (Mother) 7 (testifying
that in December of fifth grade, I.W. was “out of her mind” and “would not go back to school” at
Deerpath).) Near the end of seventh grade, I.W. moved back to Deerpath, 8 where she remained
through eighth grade. (Id.)
The administrative record contains two IEP documents from I.W.’s eighth grade year—the
year before she entered Lake Forest High School. The first is an IEP conference document from
early in I.W.’s eighth grade year, in September 2013.
(IEP Conference Summary Report
9/23/2013 [23-3], at AR 740; Df.’s Cross-Response to Pl.’s SOF [32], at ¶ 12.) The Hearing Officer
noted that “there are no participants’ signatures” for that conference, “so it is unclear whether a
meeting was even held.” (I.H.O. Order [23-1], at AR 268, 276.) Another IEP conference was
documented in February 2014. (IEP Conference Summary Report 2/7/14 [23-2], at AR 527.) That
document lists the names of participants, but again contains no signatures (id. at 268), and I.W.’s
mother testified that she did not attend that meeting. (Hearing Transcript [23-6], at 362:20–23
(Mother).) The Hearing Officer concluded that the 2014 “IEP summary report was prepared in
anticipation of a meeting that never took place,” and that the “process used to develop it were
[sic] seriously procedurally flawed.” (I.H.O. Order [23-1], at AR 276, 282.)
The Hearing Officer did not note this reason for I.W.’s move to Cove. (See I.H.O.
Order [23-1], at AR 268 (“The hearing record lacks detail as to why she was placed at [the
therapeutic day school], other than that she was having difficulties at Deerpath.”).)
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When citing to the due process hearing transcript, the court will note the name of
the testifying witness in parentheses for clarity.
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The Hearing Officer noted that I.W.’s mother testified at the due process hearing
that “the other students [at Cove] were socially below [I.W.’s] level.” (I.H.O. Order [23-1], at AR
268.) Mother also testified that she wanted I.W. to go back to Deerpath so that she could play
sports. (Hearing Transcript [23-5], at 45:21–46:1.)
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II.
Lake Forest High School
I.W. began her freshman year of high school at Lake Forest High School (“LFHS”) in the
Fall of 2014. (Df.’s SOF [27], at ¶ 21.) Her “operative IEP” at the beginning of high school was
the February 2014 IEP. (Df.’s Cross-Response to Pl.’s SOF [32], at ¶ 16.) The Hearing Officer
explained that that “IEP . . . and the process used to develop it were seriously procedurally flawed,
and as a result, the Parents were denied a meaningful opportunity to participate in the IEP
process, denying the Student educational benefit.” (I.H.O. Order [23-1]. at AR 282.) Then, in
January of I.W.’s freshman year (2015), her mother, Ms. Kroft, Ms. Lane, some of I.W.’s general
education teachers, and a host of other LFHS staff and administrators held an IEP conference.
(Conference Attendance Sheet [23-2], at AR 337.) There, they determined that I.W. continued to
have a “specific learning disability and speech and language impairment,” and that she should
continue to receive special education services. (I.H.O. Order [23-1], at AR 276.) The IEP
provided for accommodations that the Hearing Officer noted “were mainly used for testing [ ]
includ[ing] extended time, a separate testing location, modification of test format, a calculator and
reading tests to [I.W.]. [I.W.] was also generally offered note-taking assistance, computer/word
processing for all assignments, forgiveness for spelling errors and increased time for
assignments.” (Id. at AR 277.)
The Hearing Officer determined that the January 2015 IEP was substantively “deficient in
several areas.” (Id.) These include failures to “require one-on-one direct instruction,” to include
preferential seating, to provide assistive technology other than “computer/word processing,” to
include an executive functioning skills goal, to coordinate speech and language therapy across
classes other than English, to “include the services recommended in the 2007 and 2010 [Reports]
to address her reading comprehension disability,” or to provide “behavioral and social/emotional
interventions.” (Id. at AR 277–78.) These failures led the Hearing Officer to conclude that the
IEP “failed to substantively address [I.W.’s] educational and related services needs.” (Id. at AR
283.)
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During her freshman year at LFHS, I.W. had a team of individuals working with her; in
addition to Dr. Bloomberg, Ms. Lane, and Ms. Kroft, who were already working with I.W., I.W.’s
parents hired tutors to help I.W. with her math and World Civilization classes. (Df.’s CrossResponse to Pl.’s SOF [32], at ¶ 29.) LFHS also provided support for I.W. through a team
including Katherine “Katie” Secker, I.W.’s case manager and resource teacher; Karen Shane, the
LFHS school psychologist; Sherry Manzella, the school’s speech pathologist; and Megan Miles,
a school counselor.
Despite this support, I.W.’s grades at LFHS were relatively poor. Plaintiffs note that she
had D’s and F’s during her first semester of high school (see Hearing Transcript [25-3], at 53:2–
11 (Mother)), but the District points out that her final grades for the first semester were C-, B, B,
C, C, B, and B. (Official Transcript [23-2], at AR 490.) Her final grades for the second semester
were similar. (Id.). I.W.’s mother testified that I.W. was the subject of some bullying during her
time at the high school. (Hearing Transcript [23-5], 130:4–131:10 (Mother).) I.W. suffered from
increasing anxiety, as well. (See E-mail Chain 4/24/15 [23-2], at AR 378–80; E-mail from Mother
to Karen Shane 4/28/15 [23-2], at AR 381; Hearing Transcript [23-5], at 116:10–121:0 (Mother)
(discussing her communications with LFHS about her daughter’s increasing anxiety).)
By November of her freshman year (2014), I.W.’s treating psychiatrist admitted I.W. to
Compass Health Center, which is a “partial hospitalization” program. (Hearing Transcript [23-7],
at 693:7 (Bloomberg); Answer [6], at ¶ 59.) Dr. Bloomberg describes the program:
Compass is not a hospital, so children and adolescents don't sleep there, but it's a
higher level of care than simply seeing a therapist or psychiatrist in the office in
that children attend usually between like 9:00 and 2:30, Monday through Friday.
They are in group therapies which are all skill building therapies. There is a
schoolhouse that takes place for approximately 90 minutes during that period of
time.
(Hearing Transcript [23-7], at 692:17–693 (Bloomberg).)
Compass also has an “intensive
outpatient” program, which Dr. Bloomberg “believe[s] was from 4:00 to 6:00.” (Hearing Transcript
[23-7], at 704:17–21.) Though Dr. Bloomberg testified that he “believe[s] [I.W.] was in the partial
hospitalization program in the morning,” it appears that I.W. continued to attend LFHS
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simultaneously. (Psychoeducational Reevaluation Report 9/6/2016 [23-2], at AR 601–02 (noting
that the Compass “program ran after school hours to allow [I.W.] to continue to be involved in
school and maintain stability in her daily routine.”); Hearing Transcript [25-3], at 40:5 (Mother)
(calling Compass “an outpatient after school program”).) I.W. participated in that program for part
of November and December 2014 before returning to LFHS.
Frustrated with her daughter’s situation at LFHS, I.W.’s mother began looking for another
school for her daughter in “early May, late April” 2015. (Hearing Transcript [23-5], at 133:16
(Mother).) She searched the internet, talked to the parents of other students with disabilities, and
consulted the professionals who worked with I.W. (Id. at 134:15–135:10.) The family visited and
applied to several boarding schools that work with students with disabilities.
On June 4, 2015, a few days before the end of the 2014-2015 school year, I.W.’s family
sent a letter to the school requesting another IEP meeting, with the specific purpose of “updating
[I.W.’s] IEP to recommend that she continue her education next year at a specialized school better
suited to her individual disabilities and consequent needs.” (Letter 6/4/2015 [23-3], at AR 773;
Hearing Transcript [23-5], at 134:6 (Mother).) In its June 17 response, the District announced
that the meeting would not be “feasible” over the summer while teachers were out, and that an
IEP meeting would be planned for August. (Hearing Transcript [23-5], at 142:11–21 (Mother); Email 7/17/2015 [23-3], at 775.)
On July 7, 2015, Plaintiffs’ attorney notified LFHS that I.W. would withdraw from LFHS
and enroll at Eagle Hill School in Hardwick, Massachusetts. (Letter 7/7/2015 [23-3], at AR 777.)
The letter expressed a “hope that [LFHS] will compensate the [ ] family for the costs of [I.W.]’s
continued enrollment at Eagle Hill School, without resort to litigation,” and a willingness “to
cooperate (within reason) with the school and district in the conduct of any assessments they may
deem necessary to corroborate the opinions of [I.W.’s] treatment team.” (Id.) An August meeting
between I.W.’s mother, Plaintiffs’ counsel, the District’s special education director, and the
District’s counsel followed. (Hearing Transcript [23-5], at 143:16–145:1 (Mother).) As a result of
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the meeting, I.W.’s family produced documents for the district, and an IEP meeting was scheduled
for September 3, 2015 to consider I.W.’s school placement. (Pl.’s Due Process Request Brief
[23-1], at AR 10.) At the September 3 meeting, the IEP team discussed “the amount of people
that [I.W] had on her team [at LFHS], the opportunities that she had to see those people
throughout the day, [and the] types of classes she was taking.” (Hearing Transcript [23-5], at
289:5–8 (Secker).) They also discussed I.W.’s “progress” at LFHS and “her grades.” (Id. at
289:16.) Ultimately, the “IEP team made a determination that residential placement was too
restrictive for [I.W.] and that Lake Forest High School was an appropriate placement.” (I.H.O.
Order [23-1], at AR 279. See Hearing Transcript [23-5] 279:24–280:3 (Secker).)
III.
Eagle Hill School, 2015-2016 School Year
I.W. did not re-enroll in LFHS for the 2015-2016 school year, however. Ms. Kroft and Ms.
Lane both testified that they did not think LFHS was an appropriate placement for I.W. Ms. Kroft
stated that she “didn’t feel like Lake Forest was providing the correct environment for [I.W.] . . . It
wasn’t right.” (Hearing Transcript [23-8], at 829:14–23 (Kroft).) Ms. Lane similarly testified that
she “did not think that placement at Lake Forest High School was appropriate. [She] told that to
[I.W.’s] family.” (Id. at 657:20–658:1 (Lane).) Instead, I.W. enrolled at Eagle Hill School, a private
college preparatory school that specializes in certain types of disabilities, to repeat her ninthgrade year. 9 The programming available to I.W. at Eagle Hill lies at the heart of this case.
The Eagle Hill website includes a page entitled “Is EHS Right for You?” (Website [23-3],
at AR 784.) That page states that “Eagle Hill is able to work with students who display relative
weaknesses in processing speed and/or working memory” and that it “works with students who
I.W. did not fail her ninth-grade year at LFHS, but her mother decided to hold her
back when she went to Eagle Hill on the recommendation of the private professionals that worked
with I.W. (Hearing Transcript [23-5], at 149:12–13 (Mother); Df.’s Cross-Response to Pls.’s SOF
[32], at ¶ 49.) I.W. was accepted at Eagle Hill on June 26, 2015. (Acceptance Letter 6/26/2015
[23-2], at AR 383.) Parents paid her enrollment deposit on July 1, 2015, half of her tuition on
July 2, 2015, and the other half on September 4, 2015. (Account Statement [23-2], at AR 386.
See also I.H.O. Order [32-1], at AR 278.)
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have a diagnosis of ADHD, the inattentive sub-type. Additionally, Eagle Hill can provide a
program for students who . . . have difficulty with executive function skills. We are not able to
work with a student who displays significant hyperactivity, impulsivity, or difficulty with selfcontrol.” (Id.) Before I.W. was admitted to Eagle Hill, I.W.’s family visited the school. The school
interviewed her several times and reviewed her files, including her past evaluations. (Id. at 151:8–
152:7.) The school admitted her for the 2015-2016 school year, and later re-admitted her for
2016-2017.
I.W.’s mother testified about her reasons for choosing Eagle Hill: “[F]irst of all if you read,
they are specialized in language based learning disabilities, also ADHD. They know how to
administer medication. They also have four children 10 in a class. They also had social pragmatics
as classes, not one hour one day a week.” (Hearing Transcript [23-5], at 148:12–17 (Mother).)
I.W.’s mother noted that the environment for I.W. was “[v]ery, very structured. When she got up
at 7:30 in the morning until 8:00 at night she had things to do.” (Id. at 149:6–8.) “[T]hey had . . .
speech and language pathologists there, and every class knew or also understood that each child
had that language based learning disability so they would be able to conduct the class for that
type of disability.” (Id. at 153:22–154:2.) Ms. Lane, I.W.’s speech pathologist, had also spoken
with the Eagle Hill staff and testified that “[t]hey presented as a school that was going to be able
to service a child with a language based learning disability.” (Hearing Transcript [23-7], at 658:21–
659:1 (Lane).)
While at Eagle Hill for the 2015-2016 school year, I.W. took 17 courses ranging from
“Thoreau” to “Counseling.” (Report Card [23-2], at AR 390.) The school year at Eagle Hill is
comprised of nine terms of four weeks each. (Hearing Transcript [23-5], at 155:9 (Mother).) Some
of the classes I.W. took appear to have been specifically targeted to address I.W.’s needs and
disabilities: “Establishing Relationships” for two terms, “Seminar on Learning” for three terms,
The Eagle Hill website states that it has “an average class size of six students.”
(Website [23-3], at AR 784.)
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“Reading Comprehension for Fiction” for four terms, “Textbook Study Skills” for two terms, and
“Assistive Technology” for one term. (Report Card [23-2], at AR 390.) I.W’s mother testified that
the classes at Eagle Hill were modified by level: “They might have had, like let’s just say health,
but they had health for different levels. So she was in a class maybe with . . . a sophomore and
freshman and maybe a junior. It was by levels of their ability.” (Hearing Transcript [23-5], at
183:17–23 (Mother).) The Eagle Hill website corroborates that “learning is individualized and
tailored to meet the specific learning needs of each student” at the school. (Website [23-3], at AR
784.)
For each class that I.W. took, her teachers prepared a short narrative about what work
she did in the course and how she performed. 11 (Report Card [23-2], at 392–405.) Unfortunately,
these pages in the administrative record are cropped, allowing the court to see only portions of
the narratives. (See [23-2], at 395–405.) It is unclear to the court whether the Hearing Officer
himself had access to the full text of the narratives, or whether his access was also restricted.
The parties provide no additional information about the narratives—no indication of when they
were prepared or what instructions teachers were given for writing the narratives. No Eagle Hill
teachers or staff testified as to their preparation, and there is no evidence that I.W.’s parents ever
observed her activities at Eagle Hill. (See Hearing Transcript [23-2], at 34:24–35:2 (Mother).)
The available evidence in I.W.’s Eagle Hill report card shows she struggled but
experienced some success. Her teachers noted that, “[at] times, she was unfocused,” and that
she “required prompts to stay on task to complete her daily assignments.” (Report Card [23-2],
The Defendant District contends that the substance of these narratives constitutes
hearsay. (See Df.’s Cross-response to Pl.’s SOF [32], at ¶ 59.) The Defendant did not raise this
objection at the hearing when the narratives were admitted into the record by the Hearing Officer
as part of Hearing Exhibit #15. (Report Card [23-2], at AR 390.) As explained below, the
substance of the narratives is hearsay, but that would not have prevented the hearing officer, nor
does it prevent this court, from considering them.
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at AR 397, 398.) Her teacher for a class on Reading Comprehension for Fiction 12 observed,
however, that I.W. worked “to build up her vocabulary via daily review and weekly vocabulary
bingo games. [I.W] is actively working on retaining the definitions of favorite words and is more
confident saying words.” (Id.) Another teacher reported that I.W. “has done well integrating
herself back into the EHS community, exhibiting a good amount of independence, emotional
control and socialization with peers.” (Id. at AR 398.)
Three teachers’ reports regarding I.W.’s 2015-2016 school year at Eagle Hill also appear
in the record, as part of a September 2016 LFHS IEP. 13 (Sept. 2016 IEP [23-2], at AR 580;
Teacher Reports in Sept. 2016 IEP [23-2], at AR 621–22.) Karen Nastasi, who was I.W.’s
academic advisor and Introduction to Algebra teacher at Eagle Hill, reported that I.W. “benefitted
from the small group instruction in all of her classes” at Eagle Hill. (Teacher Report [23-2], at AR
621.) I.W. was “given the encouragement, redirection, and positive reinforcement necessary for
her to feel as if she is a part of the learning process,” and she was able to attend office hours and
receive “assistance during her mandatory study hall in the evenings.” (Id.) Ms. Nastasi also
reports that I.W.’s “Seminar on Learning” course was one that “offers students various ways in
which to view their learning differences, presents strategies designed to assist the students
academically and socially, and ways in which students can advocate for themselves.” (Id.)
Finally, Ms. Nastasi noted that I.W. benefitted from Eagle Hill’s “pragmatics department,” which
“assists students with the social realm by allowing them to practice in authentic situations,
including the dormitory, athletic field or in the classroom, and most importantly, takes advantage
of ‘teachable moments.’” (Id.)
The court can only see “prehension for Fiction” as the title of the course, due to the
cropped nature of the page. The court determined the full title of the course by looking to classes
listed in the report card found at AR 390.
12
This IEP will be discussed later in the opinion. The District objects to these
teachers’ reports as hearsay. (Df.’s Cross-response to Pl.’s SOF [32], at ¶¶ 59, 62, 63.) As will
be explained later in this opinion, the fact that the reports contain hearsay does not prevent the
court from considering them in this context.
13
13
Not everything at Eagle Hill went well for I.W. Elise Johnson, I.W.’s Resident Counselor,
noted that I.W. “did experience a considerable amount of anxiety around her peer relationships
and social situations.” (Id. at AR 622.) At some point during the 2015-2016 school year, I.W.
came home for four days due to her anxiety. (I.H.O. Opinion [23-1], at AR 279–80.) “This anxiety
abated throughout the year as she grew more comfortable,” however, and I.W. “became more
willing to accept help” as the year went on. (Teacher Report [23-2], at AR 622.) None of these
teachers testified at the due process hearing.
When I.W. came home for the 2016 summer, the professionals who worked with her noted
her progress. Dr. Bloomberg wrote in a letter, admitted into evidence by the Hearing Officer,
stating: “[I.W.] has done well this summer in large part because of the strides she made at Eagle
Hill School.” (Letter 9/2/2016 [23-3], at AR 739). He recommended that I.W. “continue living and
studying at Eagle Hill which has produced such a remarkable improvement in her psychiatric
stability.” (Id.) A letter by Ms. Lane, included in the September 2016 IEP, also noted I.W.’s
progress:
[I.W.’s] presentation was noticeably different this summer. She is currently
demonstrating a significant increase in understanding of narrative components . . .
[and] is more available to actively participate in therapy. She appears more
comfortable, asks informed questions and overall is demonstrating more effort.
She continues to present with deficits in the area of reading comprehension and
memory for text. Her improvement in these skills directly follow her first year at
Eagle Hill School. This programming appears to have facilitated [I.W.’s] growth in
both academic skills as well as confidence.
(Speech and Language Therapy Update in Sept. 2016 IEP [23-2], at AR 595–96.) I.W.’s parents
had filed a due process complaint against the Defendant District in April 2016, arguing that the
District had failed to provide I.W. with a FAPE, and requesting tuition reimbursement. (Df.’s
Cross-Response to Pl.’s SOF [32], at ¶ 75.) “[P]ursuant to an interim Mediation Agreement after
the commencement of [those] proceedings, the School District conducted a re-evaluation of
[I.W.].” (I.H.O. Order [23-1], at AR 280; Df.’s Cross-Response to Pl.’s SOF [32], at ¶ 74.) On
September 6, 2016, LFHS completed another IEP for I.W., using the new evaluation. (IEP
9/6/2016 [23-2], at AR 580.) In this IEP, the IEP team determined that a residential program like
14
Eagle Hill was not necessary and that a therapeutic day school placement would be appropriate
for I.W. (Hearing Transcript [23-6], at 131:18–24 (Shane).)
IV.
2016-2017 School Year
Parents disagreed with the recommendation, and I.W. returned to Eagle Hill School for
the 2016-2017 school year. Just weeks into the school year, however, on October 3, 2016, she
was expelled from the school after getting into a fight. (I.H.O. Order [23-1], at AR 281.) Her
mother reports that Eagle Hill has a “zero tolerance policy” for fighting. (Hearing Transcript [235], at 158:6–15 (Mother).) Upon returning to Illinois, and through the date of the due process
hearing, I.W. was attending Bridgeview Challenger School, a therapeutic day school. Mother
testified that I.W. has had trouble adjusting to this new setting: “It’s been – it’s very, very
depressing for her. She is very – her self esteem is very low. . . . [A]s far as the learning, they
aren’t really able to teach her because she’s so up and down there with her moods and anxiety.”
(Id. at 159:19–160:2.) I.W.’s placement at that school is not at issue in this case.
V.
Procedural History
Parents filed their request with the Illinois State Board of Education (“ISBE”) for a due
process hearing in April 2016. (Hearing Request 4/26/2016 [23-1], at AR 4–10.) In that request,
they explained that they “[sought] an order . . . requiring Community High School District #115 to
compensate them for the cost of [I.W.’s] placement at Eagle Hill.” (Id. at AR 6–7.) ISBE appointed
an impartial due process hearing officer on June 22, 2016. (Letter 6/22/2016 [23-1], at AR 13.)
The hearing began on April 12, 2017 and testimony was heard over four non-consecutive days.
Both parties were represented by counsel. The testifying witnesses included I.W.’s mother, Ms.
Secker, Ms. Shane, Ms. Grosskopf (I.W.’s LFHS Math teacher), Mr. Busse (I.W.’s LFHS Wellness
for Life teacher), Ms. Antrim (I.W.’s LFHS Art teacher), Ms. Lane, Dr. Bloomberg, Ms. Manzella,
Ms. Kroft, and Ms. Sterpin (LFHS’ current Director of Special Education). I.W. did not testify, nor
did any teacher or staff from Eagle Hill.
15
The Hearing Officer issued his Final Determination and Order on June 19, 2017, finding
that I.W.’s past IEP’s had been either procedurally or substantively flawed, and that the District
had thus failed to provide I.W. a FAPE. Based on the 2007 and 2010 Evaluations, and the
testimony of Ms. Lane and Ms. Kroft, the Hearing Officer determined that I.W.
requires direct instruction, a high level of structure to her days, small class sizes,
one-on-one attention, coordination between speech and language therapy
services and language arts instruction, multi-sensory instruction in math,
modifications in course material, assistive technology for written expression, and
other accommodations and modifications for instruction, homework and other
assignments, and exams such as extra time, preferential classroom seating and a
separate testing area.
(I.H.O. Order [23-1], at AR 275.) The IEP’s were deficient in meeting these needs. (Id.) The
Hearing Officer nevertheless concluded that I.W.’s parents were not entitled to reimbursement
because they had “not met their burden of establishing that the Eagle Hill School was an
appropriate placement for [I.W.].” (I.H.O. Order [23-1], at AR 284.) Importantly for this appeal,
the Hearing Officer noted that
[t]he information in the record on Eagle Hill consists of the testimony of the
Student's Mother, who did not directly observe the Student's instruction at Eagle
Hill, three pages of staff reports submitted in response to a request from the
Parents that are part of Exhibit #28 [the September 2016 IEP], and Exhibit #49, a
single page from Eagle Hill's web site or blog that briefly describes Eagle Hill
School and the types of students it serves. . . . No Eagle Hill lEPs, individualized
service plans, goal statements, or evaluation reports regarding the Student were
offered into the record. There was no testimony from Eagle Hill staff or
administrators.
(I.H.O. Order [23-1], at AR 279.) Noting that Mother “ha[d] no firsthand knowledge of the classes
or supports” for I.W. at Eagle Hill, that “Dr. Bloomberg and Ms. Lane testified that they had limited
contact with [I.W.] and the staff at Eagle Hill during the 2015-16 school year,” and that “grades
alone are not sufficient proof that [I.W.]’s unique educational needs were being addressed,” the
Hearing Officer determined that the evidence was insufficient to prove Eagle Hill was an
appropriate placement. (Id. at AR 285–86.) Thus, he denied Parents reimbursement for I.W.’s
Eagle Hill tuition. I.W., through her parents, filed this appeal on October 13, 2017.
16
DISCUSSION
“If parents believe that the state has failed” to provide their child a FAPE, the parents may,
“at their own financial risk, enroll the child in a private school and seek retroactive reimbursement
for the cost of the private school from the state.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d
105, 111 (2d Cir. 2007). However, “[p]arents who unilaterally change their child's placement
without state or local school officials' consent are entitled to reimbursement only if a federal court
concludes both that the public placement violated the IDEA and that the private school placement
was proper 14 under the Act.” M.B., 668 F.3d at 864 (internal quotation marks omitted) (quoting
Todd v. Duneland School Corp., 299 F.3d 899, 905 (7th Cir. 2002)). In this case, neither Parents
nor the District challenge the Hearing Officer’s determination that the District failed to provide I.W.
with a FAPE. Thus, the first prong of the reimbursement test is met. Parents argue, however,
that the Hearing Officer erred in his determination of propriety of the private school placement.
Though the Seventh Circuit has not laid out a clear rule defining appropriate or proper
unilateral placement, case law from other circuits is helpful. The Second Circuit has explained
that, generally, “the same considerations and criteria that apply in determining whether the
[s]chool [d]istrict's placement is appropriate should be considered in determining the
appropriateness of the parents' placement. . . . [T]he issue turns on whether a placement—public
or private—is ‘reasonably calculated to enable the child to receive educational benefits.’”
Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007) (modifications in original)
(quoting Frank G. v. Board of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006)). Unlike
The Hearing Officer and the parties use “appropriate” instead of “proper” when
referring to this prong of the test. (See I.H.O. Order [23-1], at AR 281–82 (“Secondly, they must
show that the private placement was appropriate to meet the Student’s needs.”); Pl.’s Memo of
Law in Opposition to Df.’s Cross-Motion for Summary Judgment [33], at 3 (“[T]he I.H.O.’s
determination that Parents failed to demonstrate that Eagle Hill was an appropriate placement is
not supported by the record.”); Df.’s Memo of Law in Support of its MSJ [26], at 7 (“Parents must
establish . . . that their private placement, Eagle Hill, was appropriate.”).) The Code of Federal
Regulations similarly uses “appropriate” instead of “proper.” 34 C.F.R. § 300.148(c) (providing
regulations regarding reimbursement). The court deems the terms interchangeable.
14
17
public schools, private placement “need not meet state education standards or requirements,”
Frank G., 459 F.3d at 364 (citing Florence Cty. Sch. Dist. Four v. Carter By & Through Carter,
510 U.S. 7, 14 (1993)), nor “provide certified special education teachers or an IEP for the disabled
student.” Frank G., 459 F.3d at 364. The Second Circuit has also explained that “parents [are]
not required . . . to prove that the ‘private placement furnishes every special service necessary’”
for the student. C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 839 (2d Cir. 2014) (quoting
Frank G. v. Board of Educ. of Hyde Park, 459 F.3d 356, 365 (7th Cir. 2006)). See Mr. I. ex rel.
L.I. v. Maine Sch. Admin. Dist. No. 55, 480 F.3d 1, 25 (1st Cir. 2007) (“[A] private placement need
provide only ‘some element of the special education services’ missing from the public alternative
in order to qualify as reasonably calculated to enable the child to receive educational benefit.”)
(quoting Berger v. Medina City School Dist., 348 F.3d 513, 523 (6th Cir. 2003)). The Third Circuit
agrees: “the test for the parents' private placement is that it is appropriate, and not that it is
perfect.” Warren G. ex rel. Tom G. v. Cumberland Cty. Sch. Dist., 190 F.3d 80, 84 (3d Cir. 1999).
Within this legal framework, Parents argue that the Hearing Officer erred when he
determined that Parents failed to prove that Eagle Hill was an appropriate placement for I.W.
First, they argue that the Hearing Officer “failed to consider” the teacher narratives that
accompany I.W.’s Eagle Hill report card. (Pl.’s Memo of Law in Opposition to Df.’s Cross-Motion
for Summary Judgment [33], at 3; Eagle Hill Report Card [23-2], at AR 391–405.) They contend
that these narratives provide sufficient evidence that Eagle Hill was an appropriate placement.
Second, Parents argue that the Hearing Officer “failed to consider or comment on the plethora of
evidence and testimony showing IW made significant progress at Eagle Hill.” (Id.) The Defendant
District counters that the teacher narratives are inadmissible hearsay, that the Hearing Officer
gave appropriately little weight to the teacher narratives, and that proof of I.W.’s progress does
not render the private placement appropriate.
18
I.
Eagle Hill Report Card Narratives
The District is technically correct that the Eagle Hill teachers’ narratives, when considered
for their truth, constitute hearsay under the Federal Rules of Evidence. The District did not,
however, raise this objection at the due process hearing. (Hearing Transcript [23-5], at 173:24–
174:6 (admitting the Eagle Hill report card packet as Hearing Exhibit 15 (AR 390–405) without
objection from defense counsel.) Nor is it clear that such an objection should be sustained: ISBE
guidance explains that the “federal or state rules of evidence do not apply to the IDEA hearing
process” in Illinois. Illinois State Board of Education, Division of Special Education and Support
Services, APPROPRIATE STANDARD PRACTICES FOR ILLINOIS SPECIAL EDUCATION DUE PROCESS
PROCEEDINGS IX.D.1 (May 5, 2016), https://www.isbe.net/Documents/due-process-standardpractices.pdf. See Sykes v. D.C., 518 F. Supp. 2d 261, 268 (D.D.C. 2007) (noting that the IDEA
does “not explicitly ban[ ] hearsay evidence from administrative proceedings held pursuant to the
statute”). Instead, “Hearing Officers may admit and give probative effect to evidence of a type
commonly relied upon by reasonably prudent persons in the conduct of their affairs.” Illinois State
Board of Education, at IX.D.3. See also Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 61 (2005)
(“IDEA hearings are deliberately informal and intended to give ALJs the flexibility that they need
to ensure that each side can fairly present its evidence.”). The District does not challenge the
authenticity of this material, which came as part of I.W.’s Eagle Hill Report card, on Eagle Hill
report card letterhead. Because the Hearing Officer admitted the evidence into the record, the
court will not bar it here.
The District next argues that the Hearing Officer gave appropriately little weight to the
Eagle Hill teacher narratives. It is not clear from his order, however, that the Officer gave the
report card narratives any weight. Cf. A.V. v. Burlington Twp. Bd. of Educ., No. 06-1534JBS,
2007 WL 1892469, at *13 (D.N.J. June 27, 2007) (giving “due weight” to a due process ALJ’s
finding that a student had a “severe learning disability” but not that he was a “non-reader,” when
19
it was “clear that the ALJ considered all evidence”). The Hearing Officer’s findings of fact in this
case made no mention of the report card narratives:
The information on the record on Eagle Hill consists of the testimony of the
Student’s Mother, who did not directly observe the Student’s instruction at Eagle
Hill, three pages of staff reports 15 submitted in response to a request from the
parents that are part of Exhibit #28 [the September 2016 IEP], and Exhibit #49, a
single page from Eagle Hill’s web site or blog that briefly describes Eagle Hill
School and the types of students it serves.
(I.H.O. Order [23-1], at AR 279.) The Officer did note in his legal analysis of the private placement
that I.W. “had passing grades at Eagle Hill School.” (Id. at AR 285 (citing Report Card [23-2], at
AR 390).) He gave those grades little probative weight, explaining that “[t]he record has no
information other than the brief written summary reports from the teachers [included in the
September 2016 IEP] . . . as to how [I.W.] earned her grades.” (I.H.O. Order [23-1], at AR 286.)
As he made no reference to the report card teacher narratives here, it is unclear whether the
Hearing Officer afforded them no weight or simply overlooked them. 16 The court remands the
case to the Hearing Officer for reconsideration of his propriety finding, in light of the teacher
narratives included in I.W.’s Eagle Hill report card. See Z.J. v. Bd. of Educ. of the City of Chicago,
Dist. No. 299, 344 F. Supp. 3d 988, 1002 (N.D. Ill. 2018) (granting Plaintiffs’ motion for summary
judgment in an IDEA appeal and remanding to the hearing officer for further “determin[ation] of
what compensatory services, if any” are owed by a school district to a student who was denied a
This is a reference to reports from three Eagle Hill staff members included in I.W.’s
September 2016 IEP, not to the narratives. (See Teacher Reports in Sept. 2016 IEP [23-2], at
AR 621–22.) This is clear from the Hearing Officer’s reference to Exhibit #28, which is the exhibit
number given to the September 2016 IEP at the hearing. The report card narratives, instead,
were part of Hearing Exhibit #15, beginning in the record at AR 390.
15
The District argues that the Hearing Officer failed to mention the report card
narratives because they “were [not] so much as mentioned by any of Parents’ witnesses.” (Df.’s
Response in Opposition to Pl.’s Cross-motion for SJ [31], at 5.) However, when the Hearing
Officer notes that the “record has no information other than the brief written summary reports from
teachers (Exhibit #28) as to how [I.W.] earned her grades,” this is a misstatement. The report
card narratives constitute part of the administrative record and were admitted into evidence by
the Hearing Officer. The Defendant District also argue that Parents did not provide any “direct
evidence regarding the appropriateness of Eagle Hill.” (Id. at 6.) Yet, the District provides no law,
and the court is not aware of any, requiring direct evidence of appropriateness.
20
16
FAPE); M.O. v. D.C., 20 F. Supp. 3d 31, 33 (D.D.C. 2013) (denying cross motions for summary
judgment in a case where Plaintiffs claimed a school district failed to provide a student with a
FAPE, and remanding to the hearing officer “for further evaluation of the evidence”)).
The Hearing Officer’s remaining factual findings are supported. See Demarcus L. v. Bd.
of Educ. of the City of Chicago, No. 13 C 5331, 2014 WL 948883, at *6 (N.D. Ill. Mar. 11, 2014)
(noting that “federal courts review the IHO's credibility determinations for clear error and only
reverse an IHO's credibility determinations if they are patently wrong”) (citing Marshall Joint Sch.
Dist. No. 2 v. C.D. ex rel. Brian D., 616 F.3d 632, 638 (7th Cir. 2010)). The Hearing Officer’s
weighing I.W.’s mother’s testimony was not clearly erroneous, nor was his weighing of the
testimony of Dr. Bloomberg and Ms. Lane, who testified about I.W.’s progress but had “limited
contact” with I.W. while she was at Eagle Hill. (I.H.O. Order [23-1], at AR 285–86.) The court
encourages the Hearing Officer on remand to reweigh that testimony in light of the information
provided in the Eagle Hill teacher narratives.
II.
Evidence of I.W.’s Progress at Eagle Hill
Parents argue in the alternative that I.W.’s progress at Eagle Hill supports a finding that
the private placement was proper.
“Progress in a unilateral placement, however, is not
dispositive, and the Court must consider whether ‘the totality of the circumstances’ demonstrates
that the ‘placement reasonably serves a child's needs.’ ” D.D-S. v. Southold Union Free Sch. Dist.,
No. 09-CV-5026 JS WDW, 2011 WL 3919040, at *14 (E.D.N.Y. Sept. 2, 2011) (quoting Frank G.,
459 F.3d at 364), aff'd, 506 F. App’x 80 (2d Cir. 2012). “Progress may be demonstrated by grades,
test scores, regular advancement, or other objective evidence, but no single factor is dispositive.”
C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 (2d Cir. 2014). See Berger v. Medina
City Sch. Dist., 348 F.3d 513, 522 (6th Cir. 2003) (“[E]vidence of academic progress at a private
school does not itself establish that the private placement offers adequate and appropriate
education under the IDEA.”). The Hearing Officer is correct that “grades alone are not sufficient
proof that the [I.W.’s] unique educational needs were being addressed” at Eagle Hill. (I.H.O.
21
Order [23-1], at AR 285.) It appears, however, that he gave almost no weight to her grades, due
to the lack of information on the record “as to how she earned” them. (Id. at 286.) The Hearing
Officer’s reconsideration of the report card teacher narratives may help alleviate that concern.
The Hearing Officer also paid little attention to other evidence of I.W.’s progress during or
following her first year at Eagle Hill. He conclusively noted that I.W. “did not make progress in
many of her areas of need,” but he does not explain how he came to that conclusion, nor does
he cite any evidence from the record. This court’s own review of the administrative record
suggests that I.W. did make social, psychiatric, and academic progress at Eagle Hill. (See, for
example, Eagle Hill Report Card [23-2], at AR 390–405; Teacher Reports in Sept. 2016 IEP [233], at AR 621–22; Letter from Dr. Bloomberg [23-3], at AR 739; Speech and Language Therapy
Update included in 2016 IEP [23-3], at 595–96.) The court remands the case so that the Hearing
Officer may weigh such evidence in making his propriety determination.
CONCLUSION
Plaintiffs’ and Defendant’s motions for summary judgment [25, 28] are denied. The
Hearing Officer’s Order is vacated, and the case is remanded to the Hearing Officer for further
consideration consistent with this opinion.
ENTER:
Dated: February 7, 2019
_________________________________________
REBECCA R. PALLMEYER
United States District Judge
22
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