Board of Education of Lake Forest High School District 115 v. Illinois State Board Of Education

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

BOARD OF EDUCATION OF )

LAKE FOREST HIGH SCHOOL )

DISTRICT 115, )

)

Plaintiff, ) Case No. 19-cv-04475

)

v. ) Hon. Steven C. Seeger

)

ILLINOIS STATE BOARD OF )

EDUCATION, and I.W., a minor, by and )

through her parents A.M.V.-W. and )

D.W., )

)

Defendants. )

____________________________________)

MEMORANDUM OPINION AND ORDER

This case is the second challenge to a decision by an Impartial Hearing Officer of the

Illinois State Board of Education in the long-running dispute between the parents of I.W. (a

former student) and Lake Forest High School District 115 (“the Parents” and “the District,”

respectively). The gist of the case is whether the District has a duty to pay for two years of

tuition for the student’s enrollment at Eagle Hill School, a residential high school in

Massachusetts, during the 2015-2017 school years.

Defendant I.W. moved to dismiss the complaint, arguing that it does not satisfy pleading

standards. She also argues that it is an improper collateral challenge to a decision made in earlier

litigation between the same parties in the same dispute. See I.W. v. Lake Forest High Sch. Dist.

No. 115 et al., No. 17 C 7426 (N.D. Ill. 2019) (Pallmeyer, C.J.).

Defendant I.W.’s Motion to Dismiss (Dckt. No. [16]) is granted in part and denied in

(large) part.

Factual Background

At the motion to dismiss stage, the Court must accept as true the well-pleaded allegations

of the complaint. See Lett v. City of Chicago, 946 F.3d 398, 399 (7th Cir. 2020). The Court

“offer[s] no opinion on the ultimate merits because further development of the record may cast

the facts in a light different from the complaint.” Savory v. Cannon, 947 F.3d 409, 412 (7th Cir.

2020).

I.W. was born in Russia in 1999. See Cplt. ¶ 13 (Dckt. No. 1). The Parents adopted her

when she was three years old, and began raising her in the Chicagoland area. Id. Soon after her

adoption, Ira Chasnoff, M.D. – a doctor at the Child Study Center of Chicago – diagnosed I.W.

with Mixed-Receptive Expressive Language Disorder and Fetal Alcohol Exposure. Id. at ¶ 14.

Throughout her childhood, I.W. underwent more evaluations and testing. Id. at ¶¶ 15–18.

When she was seven years old, a clinical child psychologist determined that I.W. had “relatively

low cognitive ability” and was “highly distractible.” Id. But despite these findings, the

psychologist did not officially diagnose I.W. with Attention Deficit-Hyperactivity Disorder

(“ADHD”). Id. at ¶ 16. That would come years later, in 2010, when doctors at the Evaluation

Center for Learning diagnosed her with specific learning disabilities and a speech and language

impairment, as well as ADHD. Id. at ¶ 17.

Soon after her diagnosis, I.W. began attending a therapeutic day program in the northern

suburbs of Chicago called the Cove School. Id. at ¶ 18. She started at the Cove School in the

middle of fifth grade, and attended that school until seventh grade. Id. She spent eighth grade at

a school in the Lake Forest Elementary District (which, Plaintiff notes, is separate from Lake

Forest High School). Id. at ¶ 19.

I.W. then enrolled at Lake Forest High School for her freshman year of high school, in

the 2014-15 academic year. Id. at ¶ 20. She passed her classes that year. Id. at ¶ 21. But the

Parents changed course for the 2015-16 year. They removed her from Lake Forest High School

and enrolled her at Eagle Hill School, a private residential school in Hardwick, Massachusetts.

Id. In June 2015, her Parents notified the Board of Education of Lake Forest High School of

their intent to enroll her at Eagle Hill. Id. at ¶ 22.

At the beginning of the 2015 academic year, the District held an Individualized Education

Program (“IEP”) meeting about her. The District ultimately recommended that she remain at

Lake Forest High School. Id. at ¶ 23. But the Parents disagreed and enrolled her at Eagle Hill.

Id. She attended Eagle Hill for the 2015-16 school year.

During the summer of 2016, the District conducted an independent evaluation and funded

private psychological and psychiatric evaluations of I.W. Id. at ¶ 24. The evaluators

recommended I.W.’s placement in a therapeutic day school. Id. Later that summer, the District

reviewed the results of the evaluation and conducted a second IEP meeting. Id. at ¶ 25. While

the IEP recommended a therapeutic day school, the Parents once again enrolled I.W. at Eagle

Hill. Id. But, as the District sees it, Eagle Hill does not provide the “educational and therapeutic

supports” recommended by the 2016 evaluation. Id. at ¶ 26.

The 2016-17 school year did not go smoothly for I.W. Eagle Hill expelled her in the Fall

of 2016 for a behavioral incident, apparently a fight with another student. Id. at ¶ 27. And

unfortunately, Eagle Hill’s tuition policies were not very forgiving: the school does not have a

refund policy, and it similarly has a “no tolerance” rule for behavioral issues. Id. at ¶ 28. So,

I.W.’s Parents were responsible for the full 2016-17 tuition costs, even though she no longer

attended the school. Id. I.W. ended up at the therapeutic day school originally recommended by

the IEP evaluators, and the District paid for it for 2016-17. Id. at ¶ 29.

Procedural History

The Parents filed a due process complaint with the Illinois State Board of Education on

April 26, 2016. They alleged that the District had denied I.W. a “free appropriate public

education” in violation of the Individuals with Disabilities and Education Act (“IDEA”), 20

U.S.C. § 1412. They sought reimbursement for the tuition and costs of attending Eagle Hill.

The first Hearing Officer (Philip Milsk) presided over an evidentiary hearing and

ultimately found in favor of the District. He concluded that the District had failed to provide a

free appropriate public education to I.W. as required by the statute. See Cplt. ¶ 34. But he also

found that the Parents had failed to prove that the private school was an appropriate placement.

Id. The Hearing Officer concluded that the Parents were not entitled to reimbursement for the

tuition of the Eagle Hill School. Id. at ¶ 35.

The Parents challenged that decision by filing suit in the United States District Court for

the Northern District of Illinois under the Individuals with Disabilities Education Act, 20 U.S.C.

§ 1415(i)(2)(A). See I.W. v. Lake Forest High Sch. Dist. No. 115 et al., No. 17 C 7426 (N.D. Ill.

2019). The District did not appeal the Hearing Officer’s ruling that it had failed to provide free

appropriate public education. So the only issue was whether sending I.W. to the Eagle Hill

School was appropriate.

After recounting the procedural history and surveying the record, Judge Pallmeyer

vacated the Hearing Officer’s decision. See I.W. v. Lake Forest High Sch. Dist. No. 115 et al.,

No. 17 C 7426, 2019 WL 479999 (N.D. Ill. 2019). The Court’s ruling largely rested on Hearing

Officer Milsk’s silence about one particular form of evidence: teacher narratives. Judge

Pallmeyer noted that it was unclear what weight, if any, the Hearing Officer had given to the

teacher narratives (meaning narratives submitted by I.W.’s teachers at the Eagle Hill School). Id.

at *11 (“It is not clear from his order, however, that the Officer gave the report card narratives

any weight.”) (emphasis in original). The Hearing Officer’s findings of fact did not mention the

teacher narratives at all. Id. “It is unclear whether the Hearing Officer afforded them no weight

or simply overlooked them.” Id.

The uncertainty was enough to send the case back. The Court remanded the case so that

the Hearing Officer could reconsider his conclusion in light of the teacher narratives. Id. (“The

court remands the case to the Hearing Officer for reconsideration of his proprietary finding, in

light of the teacher narratives included in I.W.’s Eagle Hill report card.”).

The Court concluded that the Hearing Officer’s “remaining factual findings are

supported.” Id. at *12. The Hearing Officer’s weighing of testimony from the mother and other

witnesses was not “clearly erroneous.” Id. Still, that testimony needed reweighing in light of the

evidence from the teacher narratives. Id. “The court encourages the Hearing Officer on remand

to reweigh that evidence [other testimony from the student’s mother and others] in light of the

information provided in the Eagle Hill teacher narratives.” Id.

Judge Pallmeyer also noted that the Hearing Officer “paid little attention” to other

evidence about I.W.’s progress at Eagle Hill. Id. In the end, the Court ordered the Hearing

Officer to reweigh all of the evidence, after expressly adding the teacher narratives to the scales.

Id. (remanding the case “so that the Hearing Officer may weigh such evidence in making his

propriety determination”).

By the time the remanded case reached his desk, Hearing Officer Milsk had retired. See

Cplt. ¶ 38. A new Hearing Officer thus took over the case. Hearing Officer Janet Maxwell-

Wickett began by consulting with the parties, getting their buy-in about the meaning of Judge

Pallmeyer’s Order, as well as their views on the best way to proceed. See Final Determination

and Order on Remand dated June 7, 2019, at 2–3 (Dckt. No. 1-1).

Hearing Officer Maxwell-Wickett reviewed the entire record, including the evidence

about the teacher narratives. The Hearing Officer reviewed the “complete administrative record

of the due process hearing held from April – June, 2017,” including the “transcript testimony of

all witnesses presented and all documents introduced and admitted into evidence.” Id. at 5 of 20.

The Hearing Officer considered the briefs submitted by the parties, too. Id.

After “carefully review[ing]” the full record, Hearing Officer Maxwell-Wickett ruled that

the Eagle Hill School was, in fact, an appropriate placement for I.W. Id. The Hearing Officer

expressly considered the teacher narratives and gave them “substantial weight.” Id. at 15 of 20.

“Based upon the evidence introduced into the administrative record at hearing and the specific

evidence Judge Pallmeyer directed to be reconsidered on remand, this Hearing Officer finds that

the totality of factors support the finding that Parents’ unilateral placement at Eagle Hill School

was appropriate.” Id. at 16 of 20.

Finally, the Hearing Officer found that the “balancing of the equities favors Parents.” Id.

at 17 of 20. “Overwhelmingly,” the Hearing Officer added. Id. There was “no evidence”

supporting a reduction in the requested reimbursement amount. Id. So the Hearing Officer ruled

that the District had to pay the full tuition bill for the two years, totaling over $140,000. Id.

That ruling spawned this lawsuit, the second federal case involving this dispute. The

parties switched roles. This time, the District challenged the Hearing Officer’s decision, alleging

a variety of alleged errors.

Discussion

The Individuals with Disabilities Education Act seeks to “ensure that children with

disabilities and their parents are guaranteed procedural safeguards with respect to the provision

of a free appropriate public education,” otherwise known as a “FAPE.” 20 U.S.C. § 1415. In the

words of Justice Kagan: “Welcome to – and apologies for – the acronymic world of federal

legislation.” Fry v. Napoleon Cmty. Schs., 137 S. Ct. 743, 749 (2017).

States receive federal funding under the Act in exchange for their commitment to furnish

a FAPE to all children with certain physical or intellectual disabilities. See 20 U.S.C.

§ 1412(a)(1)(A); Fry, 137 S. Ct. at 748. The law includes procedural safeguards to ensure

students can receive a FAPE. See 20 U.S.C. § 1415. The established procedures allow parents

to participate in the process (often on behalf of their disabled child) to ensure that he or she

receives an appropriate public education. See 20 U.S.C. §§ 1415(b), 1415(f)(1)(A).

Parents have a right to review. The IDEA grants parents the opportunity for an impartial

due process hearing for matters “relating to the identification, evaluation, or educational

placement of the child,” among other things. See 20 U.S.C. §§ 1415(b)(6), 1415(f)(1)(A). A

hearing officer decides if the child received a free appropriate public education from the local

school. See 20 U.S.C. § 1415(f)(3)(E)(i).

The statute authorizes judicial review, too. Any party aggrieved by the findings “shall

have the right to bring a civil action with respect to the complaint . . . in a district court of the

United States, without regard to the amount in controversy.” See 20 U.S.C. § 1415(i)(2)(A).

That’s exactly what the Lake Forest School District did here. The District filed this lawsuit,

challenging the decision of the second Hearing Officer.

I.W. responded by filing a motion to dismiss. See Dckt. No. 16. At times, the tone of the

motion is rather incredulous that the District would exercise its statutory right to challenge the

Hearing Officer’s decision. In fact, the Parents went so far as to file a motion for sanctions

against the District’s lawyers. See Dckt. No. 11. This Court already denied that motion, and for

good reason. See Dckt. No. 49. The IDEA allows “any party aggrieved by the findings and

decision” to bring a civil action “in a district court of the United States.” 20 U.S.C.

§ 1415(i)(2)(A) (emphasis added). “[A]ny party” means any party.

The District is merely doing what the Parents already did: challenging the Hearing

Officer’s decision in federal court. The Parents took full advantage of the right to judicial review

in 2017, when they filed a lawsuit and appealed the Hearing Officer’s decision denying

reimbursement of I.W.’s Eagle Hill tuition. See Complaint, I.W. v. Lake Forest High Sch. Dist.

No. 115 et al., No. 17 C 7426 (N.D. Ill. 2017), Dckt. No. 1. As the Parents acknowledged when

they filed their own lawsuit, “A party aggrieved by the findings and decision of the impartial

process hearing has the right to bring a civil action in federal court. 20 U.S.C. § 1415(i)(2)(A).”

Id. at ¶ 139. What’s good for the goose is good for the gander.

The Parents argue that the complaint fails to satisfy the pleading standards explained in

Twombly and Iqbal. See Dckt. No. 16, at 4, 6-7. But there is little concern about notice pleading

here. The parties have a long-running dispute that has already produced two decisions by two

Hearing Officers, plus two lawsuits before two federal judges. The Parents have ample notice of

what this dispute is about, and then some.

The complaint might not include details of all of the alleged errors in the Hearing

Officer’s decision. But Rule 8 requires notice of a claim, not pleading with particularity. Cf.

Fed. R. Civ. P. 9.

And even then, the complaint does narrow the field. The District challenges alleged

factual errors in the Hearing Officer’s decision such as “Student’s progress, Eagle Hill’s

available academic and therapeutic supports, the recommendations of outside evaluators, and the

placement offered by the District.” See Cplt. ¶ 44(a). The District also flags potential legal

errors such as the “appropriateness of Eagle Hill, her determination of the District’s financial

responsibility for Student’s private placement, and the balancing of equities in this matter.” Id.

at ¶ 44(b). Those allegations provide adequate notice of the nature of the dispute. If the Parents

want or need more particularity, they can serve an interrogatory.

The Parents’ own complaint in the earlier litigation provides a useful point of

comparison. See Complaint, I.W. v. Lake Forest High Sch. Dist. No. 115 et al., No. 17 C 7426

(N.D. Ill. 2017), Dckt. No. 1. Paragraph 12 of that 2017 complaint identified the alleged errors,

claiming that the Hearing Officer failed to consider nine specific pieces of evidence. The Parents

thought that was good enough to state a claim then, and they were right. In the grand scheme of

things, the complaint at issue now – brought by the District – is not that much different.

The District’s complaint states a claim upon which relief can be granted, too. See Fed. R.

Civ. P. 12(b)(6). The District challenges a decision by the Hearing Officer, just like the Parents

did – when the tables were turned – after the decision by the first Hearing Officer. Then, the

Parents argued that the Hearing Officer made mistakes, and they were ultimately successful.

Now, the shoe is on the other foot, and the District is the one challenging the decision of the

Hearing Officer.

That said, a few portions of the complaint do seem problematic. Paragraph 43 alleges

that “Hearing Officer Maxwell-Wickett’s decision should be reversed because it was based on

the unsupported conclusion that Hearing Officer Milsk did not consider evidence because the

evidence was not explicitly addressed in Hearing Officer Milsk’s decision.” See Cplt. ¶ 43.

Whose “unsupported conclusion”? Judge Pallmeyer’s? If so, that ship has sailed. Judge

Pallmeyer already vacated the first Hearing Officer’s decision and remanded for another try.

That case is over. And that decision is not subject to review by this Court a second time around.

To the extent that Plaintiff seeks to challenge Judge Pallmeyer’s ruling here, the motion to

dismiss is granted.

What Hearing Officer Milsk did or did not consider was the issue in the last lawsuit.

Judge Pallmeyer ruled that it was “unclear” whether Hearing Officer Milsk considered certain

evidence. See I.W. v. Lake Forest High Sch. Dist. No. 115 et al., No. 17 C 7426, 2019 WL

479999, at *11 (N.D. Ill. 2019). So the Court vacated that decision, and after remand Hearing

Officer Maxwell-Wickett reweighed the evidence. If the District disagreed with Judge

Pallmeyer’s decision about the clarity of the record, they should have appealed to the Seventh

Circuit then and there.

The issue in this lawsuit is not whether the first Hearing Officer (Milsk) did or did not

consider certain evidence. The only issue now is whether the decision by the second Hearing

Officer (Maxwell-Wickett) stands up to scrutiny. It makes no difference at this point whether the

first Hearing Officer considered the teacher narratives and comparable evidence. The second

Hearing Officer considered the issue afresh, reweighed the evidence, and made a decision based

on the full record.

In its response brief, the District disclaims any challenge to Judge Pallmeyer’s order.

Instead, the District argues that it is challenging “IHO Maxwell-Wickett’s unsupported

conclusion that IHO Milsk overlooked the narratives rather than determined they were not due

any weight.” See Dckt. No. 46, at 7 (emphasis added). But the District provides no citation to

Hearing Officer Maxwell-Wickett’s opinion. It is unclear where the District picked up the

notion that the second Hearing Officer thought that the first Hearing Officer missed something.

It was Judge Pallmeyer – not Hearing Officer Maxwell-Wickett – who “found that IHO Milsk

overlooked the report card narratives.” Id. at 8.

Paragraph 45 of the complaint advances another problematic challenge. The District

alleges that this Court should reverse the decision of the second Hearing Officer, and reinstate

the decision of the first Hearing Officer, because only the first Officer heard live testimony.

“Hearing Officer Milsk heard the evidence and determined the creditability [sic] of witnesses.”

See Cplt. at ¶ 45(a). But “Hearing Officer Maxwell-Wickett did not hear any evidence, so her

creditability [sic] determinations and weighing of the evidence should be given no weight.” Id.

at ¶ 45(b).

That ship has sailed too. Judge Pallmeyer vacated the decision and ordered the Hearing

Officer to reweigh the evidence. See I.W., 2019 WL 479999, at *12. A challenge to the

reweighing of the evidence is a challenge to Judge Pallmeyer’s decision to vacate the original

decision and remand for a second try. Judge Pallmeyer’s case closed without an appeal.

In the meantime, the first Hearing Officer retired before reweighing the evidence. It is

true that the second Hearing Officer did not hear the witnesses in person, so she could not see

their demeanor (as she herself acknowledged). See Dckt. No. 1-1, at 4 n.2 of 20. But hearing

testimony in person is not a sine qua non for weighing evidence. And as a practical matter, it is

much ado about nothing. This case is not a “whodunit” where the outcome could turn on a

witness’s small twitches, odd looks, body language, or evasive facial expressions.

This case doesn’t require the factfinder to decide which witness is lying. It’s a case about

the proper education of a student. And Hearing Officers are well qualified to make

determinations about educational policy. See Beth B. v. Van Clay, 282 F.3d 493, 496 (7th Cir.

2002) (“Because school authorities are better suited than are federal judges to determine

educational policy, the district court is required, in its independent evaluation of the evidence, to

give due deference to the results of the administrative proceedings.”); see also B.G. by J.A.G. v.

Bd. of Educ. of the City of Chicago, 901 F.3d 903, 917 (7th Cir. 2018) (“This case involves a

voluminous administrative record dealing with subject matter beyond the expertise of federal

judges. That is why we defer to the hearing officer’s factual findings and decline to substitute

our own views on educational policy for the hearing officer’s.”)

Plus, a court can evaluate the credibility of a witness, even without assessing that

person’s demeanor. “Credibility involves more than demeanor. . . . Most important is the

witness’s testimony, which ‘is not a discrete, self-contained unit of evidence examined and

weighed without context; it is a part of the body of evidence which is intertwined and considered

in its totality.’” See Mullins v. Hallmark Data Sys., LLC, 511 F. Supp. 2d 928, 930 (N.D. Ill.

2007) (quoting Ayi v. Gonzalez, 460 F.3d 876, 881 (7th Cir. 2006)). For example, a court could

conclude that one witness is more credible than another because she had more contact with the

student, or had more expertise, or offered more concrete facts than another witness.

Alternatively, a court could decide that a person’s testimony is not credible because it is against

the weight of the evidence as a whole. Demeanor counts for something, but it doesn’t count for

everything.

The second Hearing Officer was fully capable of reweighing the evidence, even without

hearing the witnesses in person. Under the District’s theory, the findings of the first Hearing

Officer would either be set in stone, or the second Hearing Officer would need to start from

scratch. And the District knew, right off the bat, that the first Hearing Officer had retired. Did

the District object to the second Hearing Officer reweighing the evidence, before the scales

tipped against them? Did the District ask the second Hearing Officer to start over, and hear all

the witnesses again?

That said, the District is free to make any arguments about the credibility of witnesses —

and the relative ability of the two Hearing Officers to assess it — at the summary judgment stage.

This Court will keep an open mind, and is not foreclosing any such argument. Even so, before

devoting too much real estate to that issue in the briefs, the District should consider whether the

in-person demeanor of the witnesses makes much of a difference in a case like this.

Overall, the parties have a disagreement about whether the Hearing Officer made the

right decision. This case is a review of a decision by an administrative agency. A motion to

dismiss is a poor vehicle for resolving this dispute. The outcome depends on the facts, so a

motion for summary judgment is a better way to proceed.

Conclusion

Defendant I.W.’s Motion to Dismiss (Dckt. No. [16]) is granted in part and denied in

part.

Date: March 26, 2020 BS

Steven C. Seeger

United States District Judge

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