Board of Education of Township High School District No. 211 v. Ross

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3700
BOARD OF EDUCATION OF TOWNSHIP
HIGH SCHOOL DISTRICT NO. 211,
Plaintiff-Appellee,
v.
MICHAEL and DIANE ROSS, individually and
as next friends of LINDSEY ROSS, a minor,1
Defendants-Third-Party Plaintiffs-Appellants,
v.
ILLINOIS STATE BOARD OF EDUCATION,
Third-Party Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 C 6098—Matthew F. Kennelly, Judge.
______________
ARGUED SEPTEMBER 21, 2006—DECIDED MAY 11, 2007
____________
1
In cases involving minors, we generally refrain from revealing
the minor’s last name. We make an exception here because
this opinion is being issued in tandem with a companion case,
Ross v. Board of Education of Township High School District 211
(“Ross II ”), No. 06-2060, in which Lindsey Ross is identified by
her full name for the simple reason that Ross II was filed after
Lindsey had reached the age of majority. Because Lindsey’s full
name is made public in Ross II, we see no harm in using her last
name here as well. We therefore do so for the sake of clarity
and consistency.
2 No. 05-3700
Before BAUER, CUDAHY, and WOOD, Circuit Judges.
WOOD, Circuit Judge. This case is about the responsi-
bility of a public school district to provide an education to
a student afflicted with Rett syndrome, which is a
“neurodevelopmental disorder characterized by normal
early development followed by loss of purposeful use of
the hands, distinctive hand movements, slowed brain and
head growth, gait abnormalities, seizures, and mental
retardation.” See National Institute of Neurological
Disorders and Stroke, Rett Syndrome Fact Sheet, http://
www.ninds.nih.gov/disorders/rett/detail_rett.htm?css=
print (visited April 9, 2007) (“Rett Syndrome Fact Sheet”).
The student’s parents, Michael and Diane Ross, believed
that High School District No. 211 failed to provide their
daughter, Lindsey, who suffers from Rett syndrome, with
the free appropriate public education in the least restric-
tive environment to which she is entitled under the
Individuals with Disabilities Education Act (IDEA), 20
U.S.C. § 1414. An independent hearing officer held a
lengthy hearing and upheld the District’s placement of
Lindsey. Both the District and Lindsey’s parents then
turned to the district court, which granted summary
judgment to the District on all counts.
Shortly after the district court issued its opinion in this
case, Lindsey and her parents filed a second lawsuit
against the District and its Director for Special Education.
As we explain in the companion opinion issued today in
Ross II, the district court dismissed most of the claims in
the second case on the basis of claim preclusion; it dis-
missed some supplemental state claims without prejudice.
While we appreciate that Lindsey’s parents sincerely
believe that her best interests would have been served
better under a different plan, we conclude that the dis-
trict court in both cases correctly held in favor of the
school authorities and we therefore affirm.
No. 05-3700 3
I
In approaching this kind of case, a district court must
take as the basis of its decision the administrative record
that the independent hearing officer compiled; it then has
the discretion to admit additional evidence to supple-
ment the record. 20 U.S.C. § 1415(i)(2)(C). Once the record
is complete, the court is to base its decision on “the
preponderance of the evidence” and to grant “such relief
as [it] determines is appropriate.” Id. The Supreme Court
has interpreted this to require the initial reviewing
court—that is, the district court—to make an independ-
ent decision based on the preponderance of the evidence.
See Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist.
v. Rowley, 458 U.S. 176, 206 (1982). At the same time, the
court must give “due weight” to the determinations made
during the state administrative process. Id. The Rowley
Court emphasized that “the provision that a reviewing
court base its decision on the ‘preponderance of the evi-
dence’ is by no means an invitation to the courts to sub-
stitute their own notions of sound educational policy for
those of the school authorities which they review.” Id. See
Patricia P. v. Bd. of Educ. of Oak Park, 203 F.3d 462, 466
(7th Cir. 2000).
Rowley described the reviewing court’s task as follows:
[A] court’s inquiry in suits brought under § 1415(e)(2)
is twofold. First, has the State complied with the
procedures set forth in the Act? And second, is the
individualized educational program developed through
the Act’s procedures reasonably calculated to enable
the child to receive educational benefits? If these
requirements are met, the State has complied with the
obligations imposed by Congress and the courts can
require no more.
458 U.S. at 206-07. We have interpreted this to mean that
we should review the administrative record and the
4 No. 05-3700
district court’s findings of fact deferentially. We will
reverse only if those findings are clearly erroneous. See
Heather S. v. State of Wisconsin, 125 F.3d 1045, 1053 (7th
Cir. 1997). We review questions of law, as usual, de novo.
Like the district court, we must refrain from imposing
our own notions of sound educational policy for those of
the responsible school authorities. Id. at 1052-53. We note
as well that at the administrative level, the Supreme
Court has held that the burden of proof in a hearing
challenging an educational placement decision is on the
party seeking relief. See Schaffer ex rel. Schaffer v. Weast,
126 S.Ct. 528, 531 (2005). In this case, the parties seeking
relief (in the form of a different placement for Lindsey)
were Lindsey and her parents; under Schaffer, they had
the burden of proof.
II
Victims of Rett syndrome are almost all female, because
it is caused by mutations on a gene found on the X
chromosome—males with the damaged gene usually die
shortly after birth. See Rett Syndrome Fact Sheet. The
severity of any given person’s disease varies. The district
court described Lindsey’s condition as follows:
Lindsey is nonverbal and suffers from apraxia, an
inconsistent ability to control the body and limbs. She
has, however, a higher level of motor functioning than
the majority of girls with Rett Syndrome; among
other things, Lindsey can swim, ski, and ride a horse.
Lindsey also has a higher level of cognitive functioning
than most girls with Rett Syndrome. Though the
average mental age of girls afflicted with Rett Syn-
drome is estimated to be eight to ten months, doctors
estimate Lindsey’s cognition to be between the seven
and twelve year old equivalency. . . . It should be
noted, however, that because girls with Rett Syndrome
No. 05-3700 5
are nonverbal and have poor motor control, it is quite
difficult to measure their cognitive ability accurately.
Among the many effects of Rett Syndrome are that
Lindsey’s hands get locked together, and she needs
assistance in unlocking them. In addition, and perhaps
significantly for purposes of this case, Lindsey en-
gages in vocalizations, which can be loud and last for
anywhere from a few seconds to over a minute. The
cause and meaning of the vocalizations is not known
with any certainty. Rett Syndrome also causes Lindsey
to engage in self-injurious behaviors, which include
hitting herself on the chin or head, the cause of which
is also unknown. Lindsey also sometimes strikes
others, usually by butting them with her head.
Until she entered high school, Lindsey attended regular
public schools in her neighborhood—in educational jargon,
she was “mainstreamed.” In the fall of 2001, she entered
James B. Conant High School, in Hoffman Estates, Illinois;
Conant is one of the five high schools within District 211.
That year, she was placed in five regular education classes;
she received extensive assistance from her own special
education teacher and teacher’s aide, who accompanied her
throughout the day. They provided whatever academic or
physical services she required, including behavioral
interventions, calming measures, assistance with hygienic
needs, and help with communication devices. Conant
provided a work room for her private use, for times when
she needed individualized instruction or she had to be
separated from the other students. Occasionally, separa-
tion became necessary. For example, in May of her fresh-
man year, she head-butted two staff members, causing
nasal fractures in both. Following these incidents, she
was removed from Conant. Over the summer, her parents
had her evaluated by a specialist in Alabama, who recom-
mended continued monitoring. At approximately the
same time, the District arranged for a multidisciplinary
6 No. 05-3700
review of Lindsey’s case to be conducted by Dr. Bennett
Leventhal and Dr. Marrea Winnega of the University of
Chicago Developmental Disorders Clinic. This review
concluded that Lindsey’s behavior was interfering with her
ability to make educational progress and recommended
that she be taken out of Conant and placed in a special
education setting.
On August 23, 2002, the District held a meeting for the
purpose of reviewing Lindsey’s “Individualized Education
Plan” (IEP) for her upcoming sophomore year. The District
recommended special placement, but Lindsey’s parents
strongly maintained that she would be better off remain-
ing at Conant. They requested an administrative hearing
and indicated that they wanted to exercise the “stay put”
provision of the IDEA, 20 U.S.C. § 1415(j), under which
an eligible student remains in her current school or
program during the pendency of an administrative hear-
ing. Litigation erupted at that point: the District filed suit
in the federal district court, asking it to prohibit the
parents from invoking the “stay put” provision. The court
granted a temporary restraining order, but matters
calmed down somewhat when the parents decided to keep
Lindsey at home rather than put her in the special educa-
tion setting.
Under a compromise memorialized in an agreement
dated November 5, 2002, the parties agreed that Lindsey
was to be returned to Conant as soon as possible. The
parties also agreed to submit the question of Lindsey’s
placement to a panel of three experts, Dr. Leventhal,
Victor Morris (a specialist in educational and behavioral
programming for students with autism spectrum dis-
orders, including Rett syndrome), and Alice Belgrade (a
behavioral specialist with teaching experience). The panel
members did not work well together. Nonetheless, they
were able to agree that Lindsey could return to Conant
in the spring of 2003. She did so effective April 21, with a
No. 05-3700 7
shortened schedule of three periods (lunch, physical
education, and English). As before, she had a special
education teacher and a teacher’s aide to assist her.
Lindsey attended school for 35 days under that arrange-
ment. Logs kept by her special education teacher re-
flected the fact that she spent most of her time in her
private work room, rather than in the classroom, because
her self-injurious behavior or disruptive vocalizations
often required her to leave the other students. Her aca-
demic progress was limited, but she improved various
functional skills such as using a spoon, sorting, and
responding to personal greetings. According to her par-
ents, more could have been accomplished if the District
had kept its word in other respects. They accuse the
District of failing to provide some of the aids and services
that it had promised, such as the creation of a special
“Circle of Friends” to facilitate peer interaction, occupa-
tional therapy, and a properly fitting weighted vest (which
was used to help calm her). She completed her sophomore
year in June 2003. Over the summer, her special education
teacher decided not to return to District 211, and the
District decided not to rehire the teacher’s aide. It hired
replacements for both. Lindsey’s parents believe that the
departure of the teacher and the aide was a blow to
Lindsey’s progress, since she had developed an excellent
rapport with them.
In August 2003 the IEP team met to decide how to
structure Lindsey’s junior year. The team initially in-
cluded Lindsey’s parents, their attorney, the assistant
director of special education for the District, the District’s
attorney, two members of the expert panel, Lindsey’s
English teacher, and her physical therapist. Morris, one of
the panel members, resigned because of his disagreements
with the others over the best course of action for Lindsey.
The result of these meetings was the District’s acquies-
cence in the plan proposed by Lindsey’s parents, under
8 No. 05-3700
which she was to return to Conant in the fall and take a
full day of classes.
Soon after the 2003-04 school year began, it became
apparent that Lindsey was having problems. She was
often tardy to class; her classroom behavior deteriorated;
she suffered from medical problems; perhaps because of
those complications she was fatigued and unsteady on her
feet; and her motor skills seemed worse. The net result
was that she was in school for the full six periods on only
five days during September and October. The new teacher
and teacher’s aide did not respond to these problems as
effectively as the parents believed they should, nor did
they try hard enough (in the parents’ opinion) to win
Lindsey’s trust. The District decided to convene a meet-
ing of the IEP team on November 5, 2003. Opinions
differed on the question whether Lindsey should stay at
Conant or be moved to a special education setting. At the
end of that meeting, the District decided to change her
placement to a “multiple needs” program; it recommended
the one provided by Lake Park High School, which is
run by the North DuPage Special Education Cooperative.
Lindsey’s parents opposed that recommendation, but the
District evidently thought—at least by the end of that
meeting—that the time for discussion was over. Indeed,
the parents assert that the November 5 meeting itself
was a sham and that the District had already decided to
take Lindsey out of Conant. As proof, they point to the
fact that the District had “stationed its attorney at the
federal courthouse with instructions to file a previously
prepared lawsuit against the parents” in case they did not
acquiesce in its decision. In fact, that suit was filed and
the District sought an emergency motion to permit it to
move Lindsey. (This is why the District appears in this
litigation as the plaintiff and the parents as defendants.)
Not long afterwards, Lindsey’s parents filed a request
for administrative review, as they were entitled to do
No. 05-3700 9
under federal and state law. See 20 U.S.C. § 1415(b)(6);
105 ILCS 5/14-8.02.
The independent hearing officer, Carolyn Smaron, heard
testimony for 42 days, making Lindsey’s the longest
special education due process hearing in Illinois history,
according to the district court. The hearing officer issued
a 61-page decision in which she concluded that the Dis-
trict’s placement decision was appropriate. Lindsey’s
parents appealed that decision to the district court
under 20 U.S.C. § 1415(i)(2)(A). In addition to asking for
various forms of relief against the District, the parents
also filed a cross-claim against the Illinois State Board of
Education (ISBE), in which they alleged that ISBE vio-
lated the IDEA, the Americans with Disabilities Act, 42
U.S.C. § 12101 et seq., and section 504 of the Rehabilita-
tion Act, 29 U.S.C. § 794, by failing to ensure that the
District educate Lindsey at Conant. As noted earlier, the
district court took some additional testimony before
rendering its decision. On cross-motions for summary
judgment, it denied the parents’ motion and granted the
District’s motion. It also found that its ruling in the
District’s favor required judgment in ISBE’s favor on the
third-party claim. Lindsey’s parents now appeal to this
court.
III
The IDEA guarantees disabled children the right to a
free appropriate public education in the least restrictive
environment. In order to implement that promise, § 1414
of the Act requires a school district to assess the child’s
educational needs and to develop an IEP based on that
assessment. Rowley makes clear that the statute im-
poses both a procedural obligation and a substantive
obligation on the state. 458 U.S. at 207-08. Lindsey’s
parents, on their own and her behalf, argue that the
10 No. 05-3700
District failed to satisfy the statute in either respect. We
address their arguments in turn.
A. Procedural Compliance
The parents claim that the meetings that the District
held—especially, but not only, the meeting of November 5,
2003—were nothing but an elaborate effort to ratify a
decision that the District had already made without their
input. If this were true, then it would violate the IDEA.
The central tool that the statute uses for the development
of a proper educational program for each disabled child
is the IEP, which is defined as “a written statement for
each child with a disability that is developed, reviewed,
and revised in accordance with section 1414(d) of this
title.” 20 U.S.C. § 1401(14). The IDEA lays out an elabo-
rate set of procedures that govern the process of develop-
ing an IEP. See 20 U.S.C. § 1414(a)-(c). Throughout, the
statute assures the parents an active and meaningful
role in the development or modification of their child’s
IEP. If a school district were to change a student’s place-
ment without observing those rules, it would violate the
procedural obligations under the statute to which Rowley
referred. See Deal v. Hamilton County Bd. of Educ., 392
F.3d 840, 857 (6th Cir. 2004); Spielberg ex rel. Spielberg v.
Henrico County Pub. Schs, 853 F.2d 256 (4th Cir. 1988)
(construing Education of All Handicapped Children Act,
predecessor to IDEA).
While we can appreciate the frustration that Lindsey’s
parents felt at the conclusion of the November 5 hearing,
we cannot say that the district court clearly erred when
it found that they had a meaningful opportunity to par-
ticipate in the development and review of Lindsey’s IEP.
The parents point to three pieces of evidence that contra-
dict this finding, in their opinion. First, during the August
No. 05-3700 11
2003 IEP meeting, district officials left the room and
drafted an addendum to the plan that read as follows:
By the end of her ninth grade year . . . staff members
who worked closely with Lindsey sincerely believed she
was receiving virtually no educational benefit in the
mainstream. Based on these beliefs, public school
personnel recommended a placement at a separate
school designed to appropriately meet Lindsey’s needs.
...
[T]he belief among District 211 staff that Lindsey is
not being appropriately served in the mainstream still
exists. . . . However, staff is also advised by legal
counsel that the settlement agreement continues to
control and therefore they will in good faith implement
whatever IEP is agreed upon today. Were it not for
the settlement agreement, as a matter of conscience,
public school personnel would continue to recommend
an appropriate public or private self-contained setting.
The parents concede that this language did not effect a
change in Lindsey’s plan. The district court should have
used it, they believe, as evidence that District 211 had
predetermined Lindsey’s placement at some time prior
to the November 5 meeting. While it may be possible to
view the addendum that way, it is certainly just as
reasonable (if not more so) to take it, as the district court
did, at face value: a sincere expression of concern on the
part of staff, a staff recommendation, and a commitment
to abide by whatever plan was “agreed upon today.”
Second, the parents claim that Dr. Malito, the District
superintendent, told them at an October 2003 meeting
that District 211 had made up its mind to remove Lindsey
from Conant and change her placement to a special needs
program after the November 5 meeting. Dr. Malito,
however, later testified that he did not make any
such statement at the October meeting and that he did
12 No. 05-3700
not predetermine Lindsey’s placement before the Novem-
ber meeting. Dr. Daniel Cates, the Director of Special
Education for District 211, was present at the October
meeting and testified that no decisions regarding place-
ment were made then. The state independent hearing
officer credited Dr. Cates’s testimony, and the district
court saw no reason to question her credibility deter-
mination.
Finally, the parents regard the fact that the District
had already drafted the legal papers necessary for seeking
an injunction against the “stay put” obligation as of the
day of the November 5 meeting, and that it had an attor-
ney poised to file those papers, as unequivocal evidence
that the meeting was a sham. Once again, while this may
be one way of looking at the evidence, it is not the only
way, and most importantly, it is not the way that the
hearing officer saw it. The District had no reason to
contemplate litigation against itself if the parents’ views
had prevailed at the end of the meeting. In that event,
presumably it would have notified the attorney to go
home. If at the end of the meeting the consensus was
to change Lindsey’s placement, however, the District
well knew that the parents were likely to oppose that
outcome. The hearing officer, and the district court, were
not required to read anything nefarious into its decision
to be ready for the latter alternative.
In fact, the hearing officer thought that the evidence
was “overwhelming that the parents were maximally
involved in the IEP process, its implementations and
modifications.” The district court agreed with that assess-
ment. District 211, in its view, had done nothing more
than prepare for the various IEP meetings—a step it
was entitled to take. The court also noted that the Dis-
trict’s decision to file the lawsuit was made by Dr. Cates
and that the members of Lindsey’s IEP team had no
knowledge of the plan to sue if consensus was not
No. 05-3700 13
reached at the November meeting. The record reflects
that the parties conducted a comprehensive review of
Lindsey’s situation at that meeting; the review was
memorialized in a 32-page conference summary report that
reflects discussion among the expert panel members,
consultants, psychologists, Lindsey’s case manager, her
parents, and her parents’ attorney. This is a far cry from
W.G. v. Bd. of Trs. of Target Range Sch. Dist. No. 23, in
which the Ninth Circuit found that the record supported
the district court’s finding that the school authorities
had independently developed the IEP that it presented to
the parents without either their participation or that
of certain other critical parties. 960 F.2d 1479, 1484 (9th
Cir. 1992).
B. Substantive Compliance
The parents raise three principal arguments with
respect to the substance of Lindsey’s IEP: first, that the
District violated the IDEA by failing to include a transi-
tion plan for her; second, that it failed to consider all
supplementary aids and services that could be used at
Conant, and thus failed to educate Lindsey in the least
restrictive environment; and third, that the District
also violated Lindsey’s rights under the ADA and the
Rehabilitation Act.
1. Transition Plan
The IDEA requires every IEP, beginning no later than
the one that will be in effect when the child is 16 years old,
to include “appropriate measurable postsecondary goals
based on age appropriate transition assessments related
to training, education, employment, and, where appropri-
ate, independent living skills,” and to describe the “transi-
tion services (including courses of study) needed to
14 No. 05-3700
assist the child in reaching those goals.” 20 U.S.C.
§ 1414(d)(1)(A)(i)(VIII)(aa)-(bb). Nothing in the statute
indicates that the District has discretion whether to
include a transition plan in the IEP. See Yankton Sch.
Dist. v. Schramm, 93 F.3d 1369, 1376 (8th Cir. 1996) (“If
a student is eligible under IDEA, appropriate services,
including transition benefits, shall be provided.”).
In Lindsey’s case, this means that transition measures
should have been discussed in the IEP prepared for her
sophomore year in August 2002. The district court essen-
tially conceded that this had not happened. Instead, the
record reflected that her transition plan was “deferred,”
without explaining where the authority to take that step
came from. The District had explained that it followed a
practice of deferring the drafting of transition provisions
where the student was not ready to move along, and
the district court found that “it was reasonable for the
District to determine that Lindsey has not yet progressed
to the point at which a transition plan is necessary.” The
August 2003 IEP was not much better. It said, “Transition
goals will be determined after Lindsey completes a voca-
tional assessment. Until this point, transition planning
will be addressed through IEP goals in the areas of self-
help and functional academics. A district representative
will meet with the family in order to address the
various domain areas of transition.” Another document
indicates that meetings about transition were taking
place and that the parents had received some literature
about transition. In the November 2003 IEP, the plan
reverted to a statement that transition planning was
being “deferred.”
It appears that the District thought that what Lindsey
needed was the very basic skills that were already in-
cluded in her IEP, and thus that there was no material
difference between her transition needs and her current
needs. Even if that were true, however, the statute says
No. 05-3700 15
that it should have explained this in the IEP and ad-
dressed the subject more fully. The failure of the plan to
discuss transition is, however, a procedural flaw, not a
substantive one: no one would be complaining about the
language of the plan if the District had in fact been
providing transitional services to Lindsey. The important
question is therefore whether the District failed to give
Lindsey something to which she was entitled. As we
noted in a similar case, “Procedural flaws do not auto-
matically require a finding of a denial of a [free appropri-
ate public education]. However, procedural inadequacies
that result in the loss of educational opportunity . . .
clearly result in the denial of a [free appropriate public
education].” Heather S., 125 F.3d at 1059. See also Deal,
392 F.3d at 855.
The record as a whole shows that Lindsey was not in a
position to benefit from an elaborate transition plan
including advanced vocational or educational skills. This
explains why the District was deferring a plan with
anything more elaborate than what it was already
doing, and it explains why both the hearing officer and
the district court found this course of action acceptable.
We conclude that the District erred when it failed to
include more specific transition plans in Lindsey’s IEPs,
but that this procedural flaw did not result in the denial
of a free appropriate public education for her.
2. Least Restrictive Environment
The hearing officer and the district court devoted a great
deal of attention to this argument. Under the IDEA and
its implementing regulations, a child is entitled to re-
ceive a free appropriate public education, and it must be
delivered in the least restrictive environment. This part of
the IDEA requires the District to educate Lindsey with her
nondisabled peers—known as “mainstreaming” her—to the
16 No. 05-3700
“greatest extent appropriate.” 20 U.S.C. § 1412(a)(5)(A).
The statute specifies that “special classes, separate
schooling, or other removal of children with disabilities
from the regular educational environment [may] occur[ ]
only when the nature or severity of the disability of a
child is such that education in regular classes with the
use of supplementary aids and services cannot be achieved
satisfactorily.” Id. Lindsey’s parents argue that District
211 failed to comply with this obligation, both by its
inadequate support of Lindsey while she was at Conant
and by its ultimate decision to move her out of the main-
stream school. This court has declined to adopt any sort of
multi-factor test for assessing whether a child may re-
main in a regular school. See Beth B. v. Van Clay, 282 F.3d
493, 499 (7th Cir. 2002). We did hold, however, that it is
not enough to show that a student is obtaining some
benefit, no matter how minimal, at the mainstream
school in order to prove that the District’s removal of
Lindsey violated the “least restrictive environment”
requirement. Instead, giving due deference to the adminis-
trative findings and the conclusions of the district court,
we ask whether the education in the conventional school
was satisfactory and, if not, whether reasonable measures
would have made it so. If the mainstream environment
was satisfactory, the District violated the statute by
removing Lindsey. Id. at 499. If it was not and could not
reasonably be made so, the District satisfied the statute
if its recommended placement kept Lindsey with her
nondisabled peers to the maximum appropriate extent. Id.The district court, relying heavily on the hearing officer’s
decision, found the measures that District 211 used to
facilitate Lindsey’s education to be sufficient; it also
found the District’s decision ultimately to move her to be
consistent with the statute. Rather than repeat every-
thing from the district court’s thoughtful analysis, we
mention only a few examples of the evidence that sup-
ported this finding.
No. 05-3700 17
Lindsey, the district court found, was not making
meaningful progress at Conant. To the extent that she
was successful during the spring of 2003, she was meet-
ing her goals through work done in her private room
with instruction from her special education teacher, not
through work done in the mainstream classroom. School
records reflect that she spent little time in the regular
classroom throughout 2003. During the spring of 2003, for
example, there were only two days in which she was
able to stay in her English class for the full 50 minutes,
and there were many days when she could not go at all or
she went for only about 10 minutes. Her ability to interact
with her peers was also minimal, and her behavior was
disruptive. Even though her cognitive ability is fortunately
higher than that of many Rett’s sufferers, this does not
answer the question where her intellectual development
could be fostered most effectively. The record is full of
evidence that outside experts, the District 211 teachers,
and district specialists all thought that she could not
learn satisfactorily in the environment of Conant. More-
over, several experts, the hearing officer, and the district
court concluded that Lake Park High School, the recom-
mended placement school, presented “reverse main-
stream opportunities,” which allow for integration into
the regular education environment and periodic interac-
tion with nondisabled students. If this evidence is credited,
it is easy to conclude that the District met its obligations
to provide Lindsey a free appropriate public education
in the least restrictive environment she could handle. Her
parents obviously disagree with this, but we cannot
undertake an independent assessment of Lindsey’s case.
We can only decide whether the hearing officer and the
district court came to a rational conclusion, and we find
that they did.
18 No. 05-3700
3. ADA and Rehabilitation Act
The district court held that its decision to reject the
challenge by Lindsey and her parents based on the IDEA
necessarily meant that their case under the ADA and the
Rehabilitation Act also had to be rejected. They argue that
this fails to recognize important differences between the
statutes and ignores the savings clause in the IDEA, which
says that nothing in that act “shall be construed to
restrict or limit the rights, procedures, and remedies
available under . . . the [ADA], Title V of the Rehabilita-
tion Act of 1973, [or other laws].” 20 U.S.C. § 1415(l)
(citations omitted); see also Charlie F. v. Bd. of Educ. of
Skokie Sch. Dist. 68, 98 F.3d 989, 991 (7th Cir. 1996). The
IDEA is limited, we held in Charlie F., to “any matter
relating to the identification, evaluation, or educational
placement of the child, or the provision of a free appro-
priate public education to such child.” 98 F.3d at 991.
The parents read this to mean that the possibility of a
different remedy (specifically, damages) under the ADA or
the Rehabilitation Act opens up the possibility of their use
here. They state that they are seeking redress for “acts of
hostility and discrimination for which monetary relief is
the only salve.” We agree with her parents this far: insofar
as claims under these two statutes are concerned, the
district court was required to apply the ordinary standard
for summary judgment, not the special IDEA variant. That
means also that our review is de novo on this part of the
case, as it ordinarily is on appeals from summary judg-
ments.
In our view, the district court was aware of this and
applied the correct standard. It found, for example, that
no reasonable trier of fact could find that District 211
intentionally discriminated against Lindsey. Nothing in
the court’s language suggests that it was deferring to
anyone or that it was resolving disputed issues of material
No. 05-3700 19
fact. Moreover, this conclusion is unassailable. Lindsey
and her parents are complaining that the level of special
services she received was not high enough; nothing
whatever suggests that the school was treating her
differently from the other students in an adverse way,
intentionally or otherwise. If the question were whether
it was making reasonable accommodations to help her
participate in its programs, that too cannot be disputed on
this record. What is in dispute, as the district court
recognized, is whether the extra efforts required by the
IDEA were satisfactory. That does not mean, however,
that the disputed issues of fact to which the court re-
ferred are material for an ADA or a Rehabilitation Act
theory. We add, for the sake of completeness, that we are
not rejecting this argument just because Lindsey’s parents
did not specify the monetary damages that they were
seeking under these alternative theories. As they correctly
note in their reply brief, FED. R. CIV. P. 54(c) entitles them
to whatever relief may be justified by the proof. We
conclude, however, that the District was entitled on the
merits to summary judgment under these two theories.
IV
Last, we turn to the third-party claim against the Illinois
State Board of Education, in which Lindsey’s parents
accused it of violating the IDEA, the ADA, and section 504
of the Rehabilitation Act by failing to ensure that District
211 complied with the “least restrictive environment”
command of the IDEA and by failing to provide a fair
administrative process. We agree with the district court
that these claims necessarily fail as a result of our rejec-
tion of the primary claims against the District.
* * *
We AFFIRM the judgment of the district court.
20 No. 05-3700
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-11-07