M., John v. Bd Educ Evanston 202

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 06-3274 & 06-3738
JOHN M., by his parents and next
friends, CHRISTINE M., and MICHAEL M.,
Plaintiffs-Appellees,
v.
BOARD OF EDUCATION OF EVANSTON
TOWNSHIP HIGH SCHOOL DISTRICT 202,
EVANSTON TOWNSHIP HIGH SCHOOL
DISTRICT 202, and ALLAN ALSON,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 C 6720—James F. Holderman, Chief Judge.
____________
ARGUED FEBRUARY 8, 2007—DECIDED SEPTEMBER 17, 2007
____________
Before RIPPLE, MANION and WILLIAMS, Circuit Judges.
RIPPLE, Circuit Judge. John M. (“John”), by and through
his parents and next friends, Christine M. and Michael M.,
filed this action seeking relief under the Individuals with
Disabilities in Education Act (“IDEA”), as amended by
the Individuals with Disabilities in Education Improve-
ment Act (“IDEIA”). He alleged that Evanston Township
2 Nos. 06-3274 & 06-3738
High School District 202, its Board of Education and its
Superintendent (collectively “the School District”) had
denied John a free, appropriate public education (“FAPE”)
as required by the legislation. In response to John’s mo-
tion for enforcement of the statute’s “stay-put” provision,
which requires generally that a child remain in the same
educational placement pending any proceedings, see 20
U.S.C. § 1415(j), the district court entered a preliminary
injunction.
For the reasons set forth in this opinion, we have con-
cluded that the injunction cannot stand in its present
form because it addresses matters beyond the stay-put
provision and does not apply the correct standards
when it does address the stay-put provision. Accordingly,
we reverse the judgment of the district court and remand
the case for further proceedings consistent with this
opinion.1
I
BACKGROUND
A.
John is a 16 year-old sophomore in high school who has
Down’s Syndrome. He is enrolled in the School District
as a student at Evanston Township High School
(“ETHS”), a public school that receives federal funding
and that is subject, therefore, to the requirements of the
1
At the invitation of the court, the United States Secretary of
Education submitted a brief as amicus curiae. We express our
appreciation to the Secretary for her helpful assistance.
Nos. 06-3274 & 06-3738 3
IDEA and the IDEIA. Before beginning his high school
career at ETHS, John had attended Haven Middle School,
District 65 (“Haven”). Students from Haven normally
transition to ETHS to continue their education.
While John was a student at Haven, he pursued his
middle school education under the terms of an Individual-
ized Education Program (“IEP”). This plan, often referred
to in this opinion as the “May 2004 IEP,” had been formu-
lated in May 2004. While at Haven, John had received
a service that the parties refer to as “co-teaching.” The
phrase “co-teaching” did not appear in the May 2004 IEP.
In Spring 2005, John’s parents and representatives of
ETHS met to formulate an IEP for John’s coming fresh-
man year at ETHS.2 Representatives from Haven also
attended the first two sessions of these meetings. During
2
The IDEA requires a cooperative process in which a family
and a school agree upon a child’s educational placement. See,
e.g., Patricia P. v. Bd. of Educ. of Oak Park, 203 F.3d 462, 469 (7th
Cir. 2000) (“[A] school district is . . . bound by the IDEA’s
preference for a cooperative placement process: this Court
will look harshly upon any party’s failure to reasonably co-
operate with another’s diligent execution of their rights and
obligations under the IDEA.”). Indeed, the IDEA requires an
“IEP Team,” composed of the parents of the child with the
disability, not fewer than one of the child’s regular education
teachers if the child is or may be participating in the regular
educational environment, not fewer than one special education
teacher, a representative of the local educational agency, an
individual qualified to interpret the instructional implications
of evaluation results, others who, at the discretion of the parents
or the agency, may be determined to have special expertise
and, whenever appropriate, the child with a disability. 20 U.S.C.
§ 1414(d).
4 Nos. 06-3274 & 06-3738
this process, ETHS stated that it would not be able to
provide the same sort of co-teaching services that Haven
had provided to John during his middle school education.
Instead, ETHS proposed to afford John 215 minutes per
week of special education services. The proposed ETHS
IEP also provided that John’s special education teacher
would observe him in his general education classes of
English, History, Algebra and Biology for 43 to 86 addi-
tional minutes per week. ETHS’ IEP also provided for
various speech therapy services, social work services,
physical therapy and occupational therapy. It did not
provide, however, for a “Circle of Friends” type social
and speech therapy that John had received at Haven and
that his parents believed was very beneficial to him dur-
ing his time there.
Because John’s parents did not believe that the pro-
posed IEP fulfilled the School District’s statutory responsi-
bility to their son, they requested an administrative hear-
ing. The hearing officer determined that the IEP complied
with statutory requirements. He also concluded that
ETHS had complied fully with the requirements of the
stay-put placement.3
John then filed an action in the district court seek-
ing review of the hearing officer’s determination. While
this action was pending, John filed a motion for a pre-
liminary injunction to enforce the stay-put placement and
a motion to supplement the administrative record and
3
John has appealed to the district court the hearing officer’s
conclusions as to whether the School District’s proposed IEP
affords John a free, appropriate public education (“FAPE”). That
appeal is still pending before the district court.
Nos. 06-3274 & 06-3738 5
present additional evidence.4
B.
In his motion for a preliminary injunction, John sought
to maintain the status quo, the May 2004 middle school
IEP, while the litigation over the proposed high school IEP
was under consideration by the district court.
Although ostensibly ruling on the stay-put request, the
district court addressed extensively the merits of the
proposed high school IEP and determined that the School
District, as a practical matter, offered only two options to
John: (1) a mainstream class without a co-teacher or (2)
placement in a separate special education classroom. The
district court then concluded that the School District
essentially had defaulted John into the special education
class because his disability prevented him from participat-
ing in the mainstream classes. The district court held that
this situation was a violation of the statute because it
denied John an individual assessment. The district court,
therefore, vacated the hearing officer’s decision to the
extent that it was inconsistent with the district court’s
determination that the proposed high school IEP did not
offer John a FAPE. The district court then entered a pre-
liminary injunction that required the School District to pro-
vide John with an education based on its proposed high
school IEP with additional features specified by the court.5
4
The motion to supplement the administrative record is not
before us on this appeal.
5
The district court’s order is set out as an appendix to this
decision.
6 Nos. 06-3274 & 06-3738
The School District then filed a motion to stay the district
court’s judgment pending appeal. See Fed. R. Civ. P. 62(c).
The district court granted the motion in part and denied
it in part. The district court agreed with the School District
that the part of its order that required the plaintiffs and
defendants to work together to create a new IEP crossed
the line from enforcement of the stay-put placement to a
merits-based preliminary injunction. It therefore stayed
subsection 3 of its order, but denied the stay with respect
to the remainder of the order.
II
DISCUSSION
A.
John first submits that the district court erred when,
while ruling on his motion for a preliminary injunction to
enforce the statute’s stay-put provision, it vacated, sua
sponte, the hearing officer’s decision on the merits.
After John appealed the merits of the hearing officer’s
decision to the district court, he filed a motion for a pre-
liminary injunction to enforce the stay-put provision of the
statute. In ruling on John’s motion for preliminary injunc-
tion on the stay-put placement, the district court, sua
sponte, vacated the decision of the hearing officer and
ordered the implementation of a regimen that employed
the proposed high school IEP as its base and added
other requirements, including a co-teaching services
component. The School District submits that the district
court exceeded the bounds of the motion and, by address-
ing the underlying merits, deprived the School District
of the right to be heard.
Nos. 06-3274 & 06-3738 7
The School District is correct. The motion for a prelimi-
nary injunction to enforce the stay-put provision had not
placed the merits of the hearing officer’s decision before
the district court. In asking for preliminary injunctive re-
lief, John sought to enforce only the stay-put placement
provision of the statute while he litigated, in the district
court, the correctness of the hearing officer’s decision.
Upon the filing of the motion for a preliminary injunc-
tion, the School District simply was not on notice that
the district court planned to address, in its consideration
of that motion, the underlying merits. Consequently, the
School District did not have an adequate opportunity to
submit evidence with respect to the appropriateness of
the proposed high school IEP. The School District simply
was not given an adequate opportunity to defend itself
on the merits. Accordingly, we must conclude that it
was error for the district court to amend sua sponte the
IEP and to vacate the hearing officer’s decision.
Our determination is simply an application of the gen-
eral rule that sua sponte judgments are generally dis-
favored. See Southern Illinois Riverboat Casino Cruises, Inc. v.
Triangle Insulation & Sheet Metal Co., 302 F.3d 667, 677-78
(7th Cir. 2002). At a minimum, sua sponte judgments are
proper only when the litigants have proper notice that the
district court is contemplating entering such a judg-
ment and have a fair opportunity to submit evidence
prior to the entry of such a judgment. Sims-Madison v.
Inland Paperboard & Packaging, Inc., 379 F.3d 445, 449 (7th
Cir. 2004).
B.
We now must examine whether the district court erred
when it held that co-teaching was required as part of John’s
stay-put placement.
8 Nos. 06-3274 & 06-3738
In enacting the stay-put provision, Congress intended “to
strip schools of the unilateral authority they had tradition-
ally employed to exclude disabled students . . . from
school.” Honig v. Doe, 484 U.S. 305, 323 (1988) (emphasis
in original). The statute’s stay-put provision requires
that a child remain in “the same educational placement
pending the outcome of any proceedings brought pursuant
to section 1415, unless the parents and the school district
otherwise agree.” Bd. of Educ. of Cmty. High Sch. Dist. No.
218 v. Illinois State Bd. of Educ., 103 F.3d 545, 548 (7th
Cir. 1996). The term “ ‘educational placement’ is not
statutorily defined, so that identifying a change in this
placement is something of an inexact science.” Id. Indeed,
we have admitted to a hesitancy to establish in any defini-
tive and rigid way the meaning of “educational place-
ment.” Rather, we have seen wisdom in, and therefore
have adopted, the fact-driven approach employed by our
sister circuits. Id. at 549. In Board of Education of Community
High School District No. 218 v. Illinois State Board of Educa-
tion, 103 F.3d 545 (7th Cir. 1996), we recognized that
within the term there must be “enough room to en-
compass [the child’s] experience.” Id. We recognized that
the educational status quo for a “growing, learning” young
person often makes rigid adherence to particular educa-
tional methodologies “an impossibility.” Id. Under these
circumstances, respect for the purpose of the stay-put
provision requires that the former IEP be read at a level of
generality that focuses on the child’s “educational needs
and goals.” Id.As we pointed out in High School District No. 218, our
colleagues in the Second Circuit have interpreted “educa-
tional placement” along the same lines. They have de-
scribed it to refer to “the general educational program
Nos. 06-3274 & 06-3738 9
in which a child who is correctly identified as handi-
capped is enrolled, rather than mere variations in the
program itself.” Concerned Parents & Citizens for the Continu-
ing Educ. at Malcolm X (PS 79) v. New York City Bd. of Educ.,
629 F.2d 751, 754 (2d Cir. 1980). In a similar vein, the
court noted that, the regulations implementing the IDEA
also interpret the term “placement” to mean “only the
general program of education.” Id. By contrast, the judges
likened a change in “educational placement” to involve
moving a child from a “special class in a regular school to
a special school.” Id. A more rigid interpretation of
“educational placement,” the court pointed out, would
impede the school board’s ability to make “even minor
discretionary changes within the educational programs
provided for its students.” Id. at 755.6
This perspective is shared as well by our colleagues
in the Ninth Circuit. They have stated, in Johnson ex rel.
Johnson v. Special Education Hearing Office, 287 F.3d 1176(9th Cir. 2002), that all “educational placement” requires
is “comparable placement.” Id. at 1182. In Ms. S ex rel. G.
Vashon Island School District, 337 F.3d 1115 (9th Cir. 2003)
(superseded by statute on other grounds), the court
spoke directly to the situation before us—the progression
of a child from one level of education to another. When
a child progresses from preschool to elementary school,
6
Similarly, in Casey K. ex rel. Norman K. v. St. Anne Community
High School Dist. No. 302, 400 F.3d 508 (7th Cir. 2005), we
held that removing a child from a private school and enrolling
him in a public school with “completely different teachers,
curriculum, and classmates” did not comply with the auto-
matic statutory injunction established by the stay-put provision.
Id. at 513.
10 Nos. 06-3274 & 06-3738
from elementary school to middle school or from middle
school to high school, the “status quo no longer exists.” Id.
at 1133. Under these circumstances, the obligation of the
new district is to provide educational services that ap-
proximate the student’s old IEP as closely as possible. Id.
at 1134.
We believe that these cases recognize the need for some
degree of flexibility in interpreting the last agreed-upon
IEP in a stay-put situation. In complying with the stay-put
provision, we must interpret “educational placement” to
incorporate enough flexibility to “encompass [the child’s]
experience.” High Sch. Dist. No. 218, 103 F.3d at 549. A
child’s interim educational regime must produce as closely
as possible the overall educational experience enjoyed
by the child under his previous IEP. To achieve that re-
sult, we must recognize that educational methodologies,
appropriate and even necessary in one educational envi-
ronment, are not always effective in another time and place
in serving a child’s continuing educational needs and
goals.
Nevertheless, when asked to approve an alteration in
educational methodology in a stay-put order, we must
give careful attention to the purpose of the stay-put pro-
vision. The recognized and defined special needs of the
child and the educational goals originally set by the
parents and by professional educators must be respected.
Protestations that educational methodologies proven to be
helpful to the child in the past are now impossible must
be evaluated with a critical eye to ensure that motiva-
tions other than those compatible with the statute, such as
bureaucratic inertia, are not driving the decision. Sugges-
tions for methodological change that would dilute
the statute’s policy of “mainstreaming” disabled chil-
Nos. 06-3274 & 06-3738 11
dren to the “maximum extent appropriate,” 20 U.S.C.
§ 1412(a)(5)(A), deserve particular scrutiny. See Casey K. ex
rel. Norman K. v. St. Anne Comty. High Sch. Dist. No. 302,
400 F.3d 508, 512 (7th Cir. 2005). The “removal of chil-
dren with disabilities from the regular educational en-
vironment occurs only when the nature or the severity of
the disability of a child is such that education in regular
classes with the use of supplementary aid and service
cannot be achieved satisfactorily.” Bd. of Educ. v. Rowley,
458 U.S. 176, 202 n.24 (1982) (internal citations and quota-
tion marks omitted).
C.
On remand, the district court must revisit the request
for interim injunctive relief under the stay-put provision.
Its starting point must be the May 2004 IEP that governed
John’s middle school education. This document, as the last
educational plan agreed upon by the parents and the
professional educators, is the appropriate basis for stay-
put relief. Generally, the terms of this IEP should be
enforced, without exception, as the stay-put relief.
In examining the May 2004 IEP, the district court must
note with particular care the precise requirements of the
IEP. Even if a school has provided a particular service in
the past, it need not be provided in a stay-put situation if
it was not within the governing IEP. See Cordrey v. Eukert,
917 F.2d 1460, 1468 (6th Cir. 1990); Gregory K. v. Longview
Sch. Dist., 811 F.2d 1307, 1313-14 (9th Cir. 1987). If the
parties dispute what the IEP requires, as they do here
with respect to co-teaching, the court must evaluate the
IEP as a whole and determine whether such a meth-
odology is required under the terms of the IEP. Under
12 Nos. 06-3274 & 06-3738
usual circumstances, the court should find it unnecessary
to go beyond the four corners of the document in order
to make that determination. However, vagueness in the
instrument with respect to how its goals are to be achieved
may require that the court turn to extrinsic evidence to
determine the intent of those who formulated the plan. See
Doe v. Defendant I, 898 F.2d 1186, 1190 (6th Cir. 1990)
(noting that it would “exalt form over substance” to ig-
nore information known to parents and administrators
simply because it was not contained in the four corners
of the IEP). A methodology not mentioned in the plan
may well indicate that those who formulated the plan did
not consider that particular methodology a necessary
component to the plan—although they well may have
intended that some comparable methodology be imple-
mented. See Erickson v. Albuquerque Pub. Schs., 199 F.3d
1116, 1121-22 (10th Cir. 1999) (holding that, when IEP
simply required occupational therapy, the substitution
of one type of occupational therapy for another was per-
missible). Here, the term “co-teaching” is not mentioned
in the May 2004 IEP itself. Therefore, the district court
ought to determine, after evaluating the entire May 2004
IEP as a totality, whether the parties regarded this method-
ology as an essential part of the plan or as simply one of
several ways by which the plan could be implemented.
As we noted earlier, in answering this question, the court
will need to explore precisely how the plan was imple-
mented at Haven. The exact method of implementation
is not apparent on this record and the accounts of the
parties are not compatible.
Knowledge of precisely how this feature of the plan
was implemented at Haven is important for another
reason. In examining the manner in which the plan was
Nos. 06-3274 & 06-3738 13
implemented in the middle school environment, the dis-
trict court will be able to gauge far more accurately the
School District’s claim that implementation of that method-
ology in the institutional setting of a high school is not
possible. As we have said earlier, if the district court finds
that the methodology employed in the middle school is
actually part of the May 2004 IEP, the court must require
very compelling evidence from the School District before
permitting a deviation from the course already set. How-
ever, the court might determine nevertheless that the
high school setting makes the use of such an approach
counterproductive in terms of the goals of the IEP or
impossible to implement. The court then may allow the
parties to propose an alternative. This alternative should
be as close as possible to the approach used in the middle
school but nevertheless compatible with the goals of the
IEP and the institutional demands of the high school
setting. On the other hand, if the court determines that the
methodology is not part of the IEP but simply a method-
ology chosen by the middle school educational profession-
als, that particular methodology need not be included in
the stay-put order. The district court should then permit
the high school authorities to choose the approach that
they believe will be most effective in the implementation
of the IEP.
The district court must address another matter. The
district court took the view that the School District had
waived the argument that it would be impossible to
implement, in the new high school environment, the
concept of co-teaching. The district court found that the
School District had waived any impossibility argument
when it agreed, before the hearing officer, to implement
the May 2004 IEP. We do not believe that the record can
14 Nos. 06-3274 & 06-3738
support that finding. In its briefs before the district court,
the School District did state explicitly that it would be
“impossible” to provide co-teaching services to John due
to the differing course and curriculum arrangements at
the high school. It is also true that the School District
agreed to implement John’s May 2004 middle school IEP
during the stay-put period. We believe, however, that
given the School District’s explicit statement about co-
teaching services, which are not mentioned explicitly in
the document, we must interpret its willingness to imple-
ment the May 2004 middle school IEP as a statement that
it is willing to read the IEP as the School District main-
tains that it should be read—without the co-teaching
service. The School District had agreed to implement the
four corners of the last agreed-upon IEP as required under
the IDEA, but also had mentioned explicitly the impossi-
bility of providing co-teaching services, a service it main-
tains is not part of the May 2004 middle school IEP. Under
these circumstances, we cannot sustain a finding that
the School District has waived any impossibility argument.
Conclusion
For the foregoing reasons, the judgment of the district
court is reversed and the case is remanded for proceedings
consistent with this opinion. The School District may
recover its costs on this appeal.
REVERSED and REMANDED
Nos. 06-3274 & 06-3738 15
Appendix
Plaintiff John M.’s motion of March 28, 2006 to supple-
ment to administrative record and present additional
evidence (Dkt. No. 21) is granted. John M.’s motion of
March 28, 2006 for preliminary injunction and to enforce
the stay put placement (Dkt. No. 19) is granted to extent
that this court orders the vacating of the hearing officer’s
decision.
Until the parties can agree to a proper IEP for John in
compliance with the IDEA, the court orders the following
preliminary injunction:
(1) ETHS is ordered to provide education to John that it
previously promised to provide under the prior IEP as
proposed by ETHS, if so desired by John’s parents. The
prior IEP shall serve as a baseline with the following
additions as set forth below in section (2).
(2) ETHS is ordered to provide the following additions to
the baseline IEP, if John’s parents so desire:
(a) ETHS shall create a proposed schedule for John that
will be used should John be placed in regular non-special
education classes including the classes of English, History,
Mathematics and Science. ETHS shall also designate
responsible teachers in these regular education classes
who shall communicate their lesson plans and other
relevant material to John’s special education teachers so
that John shall receive as much regular class education
as possible until the issue of John’s placement into
regular classes can be determined by the parties and this
court. John’s special education teachers shall attempt to
utilize, where possible, all available textbooks, equipment
and other applicable materials that are used in the instruc-
tion of non-disabled students in regular classes. ETHS shall
16 Nos. 06-3274 & 06-3738
provide John’s parents written copies of the materials
provided by the regular class teachers to the special
education teacher and the lesson plans used by the
special education teachers. These written reports to John’s
parents shall be made on weekly basis unless another
schedule is agreed to by ETHS and John’s parents.
(b) ETHS shall provide John with a minimum of 800
minutes per week of special education instruction in
compliance with the instructions in subsection (a) unless
a lesser amount of time is otherwise agreed to by John’s
parents.
(c) ETHS shall provide John with 120 minutes per week
of social work services and 120 minutes per week of
speech therapy unless a lesser amount of time is otherwise
agreed to by John’s parents. The social worker and speech
therapist shall strive to work with John in social settings
and otherwise attempt to integrate John into the non-
disabled community in ETHS in the spirit of the “Circle of
Friends” program.
(d) ETHS shall allow John to participate in any ETHS
activity, intramural sports, club or extra-curricular pro-
gram available to non-disabled students unless ETHS
can articulate a valid, non-discriminatory reasoning for
John’s exclusion.
(e) ETHS is ordered to place John in a regular physical
education class if John’s parents so desire unless ETHS as
able to articulate a valid, non-discriminatory reason for
John’s exclusion.
(f) ETHS cannot exclude John from any resource,
such as the resource room, that is available to any other
ETHS student, both disabled and non-disabled.
Nos. 06-3274 & 06-3738 17
(3) ETHS is ordered to meet with John’s parents, and any
other individual that John’s parents designate, to work in
good faith to create a new IEP for John in order to deter-
mine the free, appropriate public education in the least
restrictive environment for John at ETHS. This IEP shall
be based on an individual assessment of John in accor-
dance with the requirements of IDEA. The IEP shall
determine, at a minimum:
(a) John’s placement in either special education or
regular education classes.
(b) Resources to be made available to John at ETHS,
including teachers, therapists, computers, textbooks
and equipment. ETHS must state the number of min-
utes that each resource will be devoted to John’s
education.
(c) The parties’ positions on a “Circle of Friends” type
program for John.
(d) Processes in place to integrate John, to the extent
desired by John and within the limitations of the
circumstances, into the community of both disabled
and non-disabled students at ETHS.
(4) ETHS and John’s parents shall confer in good faith as
to the exchange of information and other discovery as to
John’s progress. ETHS shall make its educators, staff and
other appropriate material available to John’s parents, and
John’s parents’ representatives, during the discussion
of the proposed IEP. Additionally, John’s parents, their
attorney, and their proposed expert Dr. Schwarz, shall
be permitted to observe John’s treatment at ETHS.
The parties are to complete their proposed IEP by no
later than September 15, 2006. The proposed IEP and
18 Nos. 06-3274 & 06-3738
supporting evidence shall be submitted to this court, with
accompanying briefs by no later than September 29, 2006
Cross responses are due by October 13, 2006. This case
is set for a report on status on October 24, 2006 at 9:00 a.m.
R.34 at 11-14.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-17-07