The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTH DISTRICT OF ILLINOIS
WESTERN DIVISION
Tammy Trost, )
)
Plaintiff, ) Case No. 21 C 50255
)
vs. )
) Judge Philip G. Reinhard
Dixon Unit School District 170, et al., )
)
Defendants. )
ORDER
For the reasons stated below, plaintiff’s motion for a preliminary injunction is granted.
Defendants shall pay for A.M.’s residential placement at Brehm starting August 21, 2021 per the
terms of the Mediation Agreement entered May 3, 2021, until further order of court. Plaintiff
shall submit a proposed injunction order consistent with this memorandum opinion and in
compliance with Fed. R. Civ. P. 65.
MEMORANDUM OPINION
Plaintiff, Tammy Trost, individually and on behalf of her son, A.M., a minor, brings this
action against defendants, Dixon Unit School District 170 (“District”) and the Lee County
Special Education Association (“LCSEA”) 1, Margo Empen, in her official capacity as
superintendent of the District. and Corena Steinmeyer, in her official capacity as director of
LCSEA, to enforce a mediation agreement, with defendants entered pursuant to 20 U.S.C. §
1415(e), and for breach of contract. Jurisdiction is proper in this court for the enforcement action
pursuant to 20 U.S.C. § 1415(e)(2)(F)(iii). The court has supplemental jurisdiction over the
breach of contract action. 28 U.S.C. § 1367. Plaintiff has moved for a temporary restraining
order and preliminary injunction seeking to require defendants to comply with the mediation
agreement by ordering defendants to fund A.M.’s placement in the residential program at Brehm
Preparatory Academy beginning with the Fall Semester 2021 starting on August 21, 2021. The
parties have fully briefed the motion and provided evidentiary materials. The court will proceed
on the preliminary injunction request.
“To obtain a preliminary injunction, plaintiff must first show that: (1) without such relief,
it will suffer irreparable harm before final resolution of its claims; (2) traditional legal remedies
would be inadequate; and (3) it has some likelihood of success on the merits. If plaintiff makes
such a showing, the court must next weigh the harm the plaintiff will suffer without an injunction
against the harm the defendant will suffer with one. This assessment is made on a sliding scale:
The more likely the plaintiff is to win, the less heavily need the balance of harms weigh in his
1 LCSEA is a special education cooperative that has an intergovernmental agreement with the District to provide
special education services, professionals, and services for students in the District.
favor. Finally, the court must ask whether the preliminary injunction is in the public interest,
which entails taking into account any effects on non-parties.” Courthouse News Service v.
Brown, 908 F.3d 1063, 1068 97th Cir. 2018).
The parties have submitted a joint statement of agreed material facts [32] and the court
will address the motion for preliminary injunction on these facts. See City of Indianapolis v.
Edmond, 531 U.S. 32 (2000). The following facts are taken from the statement of agreed facts
and from documents referenced in it. On April 13, 2021, plaintiff filed an administrative due
process complaint against defendants with the Illinois State Board of Education (“ISBE”). She
alleged the District failed to provide the right educational setting with the adequate educational
services he required. The relief sought included placement at Brehm Preparatory Academy
starting with the summer 2021 term and extending through the end of the summer 2023 program.
The parties elected to participate in a state-sponsored mediation session in attempt to resolve the
matter. The mediation session occurred on May 3, 2021 and resulted in a written mediation
agreement (“Agreement”).
Under the terms of the Agreement, plaintiff along with A.M.’s father, agreed to withdraw
the pending due process complaint, released defendants from all claims arising prior to the
Agreement and prospectively released all claims against defendants under the Illinois School
Code, Individuals with Disabilities Education Act (“IDEA”), section 504 of the Rehabilitation
Act, the Americans with Disabilities Act, the Illinois Human Rights Act, and any ISBE
regulations “up to and through the end of the Educational Placement Period.” The Agreement
stated the Educational Placement Period would begin with “Extended School Year (“ESY”) for
the Summer of 2021 and continuing through the end of the 2021-2022 school year, excluding
ESY for the Summer of 2022.” The Agreement provided that the District would amend A.M.’s
IEP “to provide for placement in a residential facility” for the Educational Placement Period. It
further provided that A.M.’s parents “agree to cooperate by signing Releases of Information to
allow the District to share referral packets with residential facilities, including Brehm
Preparatory Academy” and that “[u]pon acceptance into a residential facility, the District will
fund the placement consistent with the Students IEP.”
On May 4, 2021, the day after the Agreement was entered, Director Steinmeyer, in
accordance with the Agreement, asked plaintiff to sign a Release of Information that would
allow the District to share A.M.’s educational records with Brehm, as discussed and agreed upon
during mediation. Plaintiff signed and returned the Release to Director Steinmeyer on May 7,
2021.
An amendment to the IEP was made on May 8, 2021. The notification of IEP
amendment (ISBE Form 34-57G) sent to plaintiff stated that Superintendent Empen “agreed to
make the following changes to your child’s current IEP as indicated below.” Under the heading
“Changes and Explanation of Changes” the document states: “An agreement was made during
mediation to change student placement to private residential.” It indicated the changes would
begin on 6/20/2021. This document was signed by Director Steinmeyer. The notification of
conference recommendations (ISBE Form 34-57E) sent to plaintiff by Director Steinmeyer
stated that the recommendation from the conference held on May 3, 2021, “it was determined
that your child will receive special education and related services as listed in the IEP” and that he
receive a “Change of Placement”.
The “Education Services and Placement” document provided for a start date of 6/20/2021
and an end date of 5/4/2022. It stated A.M. “will be attending an out-of-district private school to
best meet his needs” and that he “requires intensive specialized instruction that requires him to
be in a separate special education environment 100% of the time.” It provided that extended
school year services were needed and that the extended school year services would begin on
6/20/2021 and end 7/17/2021.
A.M. was accepted into Brehm on June 10, 2021 and Brehm advised Director Steinmeyer
of his acceptance via email that evening. On June 17, 2021, Director Steinmeyer was advised by
the ISBE that Brehm residential was not an ISBE approved residential program though Brehm’s
educational program was ISBE approved. She had previously been advised by the ISBE that
Brehm was ISBE approved as a residential placement.
On June 18, 2021, Director Steinmeyer advised Brehm that the “district is not in a
position to place a student in a placement that is not ISBE approved, and in this case, the
residential portion. Therefore, placement will need to be put on hold for [A.M.] unless parents
intend to self-pay.” That same day, June 18, 2021, counsel for the District forwarded three
additional Release of Information forms to plaintiff’s counsel so they could begin the process of
submitting applications for A.M.’s placement at a different, ISBE-approved residential facility.
The District did not fund A.M.’s participation in Brehm’s residential program for the
ESY summer program beginning on June 20, 2021. Plaintiff did not return any of the additional
Release of Information forms. Plaintiff filed this lawsuit on June 25, 2021. The parties have
attempted to resolve this matter since then but have not done so.
Likelihood of Success on the Merits
The parties agree Illinois contract law governs the interpretation of the Agreement.
Illinois law gives the language of a contract its plain and ordinary meaning. The Agreement
provides: “Upon acceptance into a residential facility, the District will fund the placement
consistent with the Student’s IEP.” A.M. was accepted into Brehm’s residential facility on June
10, 2021. Giving the words “upon acceptance into a residential facility” their plain and ordinary
meaning, A.M.’s acceptance at Brehm triggered the District’s obligation to “fund the placement
consistent with the Student’s IEP.” Defendants offer several reasons as to why the Agreement
does not obligate the District to pay for A.M.’s residential placement at Brehm.
Defendants argue it would be illegal to place A.M. at Brehm because doing so would
violate Illinois law and Illinois law is read into any Illinois contract unless there is contractual
language to the contrary. Defendants contend placement at Brehm would violate 23 Ill. Admin.
Code 401.10 which states: “A program not approved in accordance with the requirements of this
Part shall not be used by public school districts to serve students with disabilities under Section
14-7.02 of the School Code.” However, the Seventh Circuit Court of Appeals has stated that
regulation “means that a non-approved program is ineligible for reimbursement under § 14-7.02,
not that such a program ‘shall not be used’ at all.” Board of Education of Oak Park and River
Forest High School District No. 200 v. Kelly E., et al, 207 F.3d 931, 934 (7th Cir. 2000). There
do not appear to be any cases supporting defendants’ view that section 401.10 is a bar to
placement rather than a rule concerning obtaining reimbursement from the ISBE.
Defendants argue plaintiff has not performed under the Agreement because she did not
cooperate by signing Releases of Information to allow the District to share referral packets with
other residential facilities. They argue plaintiff is preventing them from performing under the
Agreement by depriving them of the ability to refer A.M. to another residential facility.
While it is true the Agreement provided that the parents “agree to cooperate by signing
Releases of Information to allow the District to share referral packets with residential facilities,
including Brehm Preparatory Academy,” the undisputed fact is that the only Release of
Information form Director Steinmeyer sent to plaintiff the day after execution of the Agreement
was for Brehm. Plaintiff signed it and returned it and A.M. was accepted into Brehm’s
residential facility on June 10, 2021. Plaintiff was not sent any Release of Information forms for
any other residential facility prior to A.M.’s acceptance at Brehm. Since the Agreement
provided that “[u]pon acceptance into a residential facility, the District will fund the placement
consistent with the Student’s IEP,” the purpose of providing Release of Information forms had
been met. Plaintiff had provided the only form she had been asked to provide, defendants had
shared a referral packet with that residential facility, and A.M. had been accepted by that facility.
The acceptance triggered the District’s obligation to fund that placement. Plaintiff’s refusal to
provide additional Releases of Information after A.M. had been accepted at Brehm did not
prevent defendants from performing under the Agreement because their obligation to fund the
residential placement at Brehm had already been fixed by A.M.’s acceptance at Brehm, well
before defendants asked for any additional Releases of Information.
Defendants argue the Agreement should be rescinded based on the doctrine of mistake
because at the time they entered the Agreement they believed Brehm was approved by ISBE for
a residential placement. They argue that under Illinois law, recission is permitted for a unilateral
mistake if the party seeking rescission shows by clear and convincing evidence that the mistake
is of a material nature, is of such consequence that enforcement is unconscionable, occurred
notwithstanding the exercise of due care by the party seeking rescission and rescission can place
the other party in status quo. Al Maha Trading & Contracting Holding Co. v. W.S. Darley & Co.,
936 F. Supp. 2d 933, 944 (N.D. Ill. 2013).
“[C]ourts should be hesitant to set aside settlements that are reached knowingly and
voluntarily.” Billhartz v.Commissioner, 794 F.3d 794, 799 (7th Cir. 2015). “Under Illinois law, a
contract is unconscionable when, viewed as a whole, it is improvident, oppressive, or totally one-
sided.” Zippysack LLC v. Ontel Products Corporation, 182 F. Supp. 3d 867, 872-73 (N.D. Ill.
2016) (quotation marks and citation omitted). Defendants received in the Agreement the
withdrawal of the pending due process complaint, a general release of defendants from all claims
arising prior to the Agreement of any kind and prospective release of all claims against
defendants under the Illinois School Code, Individuals with Disabilities Education Act
(“IDEA”), section 504 of the Rehabilitation Act, the Americans with Disabilities Act, the Illinois
Human Rights Act, and any ISBE regulations through the end of the 2021-2022 school year. In
exchange the District agreed that upon acceptance into a residential facility, it would fund the
placement consistent with A.M.’s IEP. It cannot be said this bargain was improvident,
oppressive, or one-sided because the District mistakenly believed it would receive
reimbursement for the placement from the ISBE. The releases it obtained were valuable
consideration for what it gave in the Agreement. Defendants’ mistaken expectation that a third
party was going to defray the cost of the District’s performance under the Agreement, does not
diminish the value to the District of what plaintiff and A.M.’s father relinquished for the
District’s benefit. The contract is not unconscionable and, therefore, is not subject to recission
for unilateral mistake.
Plaintiff’s likelihood of success on the merits is extremely high. 20 U.S.C. §
1415(e)(2)(F)(iii) makes agreements reached in the 20 U.S.C. § 1415(e) mediation process
enforceable by a district court. The parties entered such an agreement and the foregoing analysis
shows the agreement almost certainly requires the District to fund A.M.’s placement at Brehm.
Irreparable Harm
The Agreement settled a dispute about A.M.’s placement. It, along with the IEP
implementing the Agreement, resolved the dispute by providing a residential placement, funded
by the District, commencing June 20, 2021 for a summer session and a residential placement for
the 2021-2022 school year, the start of which is imminent. The District’s refusal to fund the
placement cost for A.M. for the summer session and any further delay in funding will delay his
being placed in the agreed upon placement. A.M. has been accepted at Brehm and therefore can
start the residential program there immediately. The IEP states that an in-state residential
placement is what A.M. needs. Brehm is the in-state residential facility that accepted him. He
cannot, at this point, attend any other residential facility. He will be irreparably harmed by being
denied funding to attend Brehm.
Traditional Legal Remedies are Inadequate
Plaintiff’s traditional legal remedy is the suit to enforce the Agreement. This remedy is
inadequate because of the delay that attends litigation. The parties’ joint initial status report [19]
filed August 6, 2021 states they anticipate discovery to take about one month. Dispositive
motions and briefing thereon would then likely occur. Plaintiff would be unlikely to proceed to
judgment during the Fall semester leaving only the Spring semester for A.M. to attend Brehm, if
plaintiff is ultimately successful, before the Educational Placement Period under the Agreement
would expire.
Balance of Harms
Moving to the balancing of harms plaintiff will suffer without an injunction against the
harm defendants will suffer with one, the balance falls in plaintiff’s favor. As noted, this is a
sliding scale, with the more likely the plaintiff is to win, the less heavily the balance of harms
need to fall in his favor. As discussed above, plaintiff’s likelihood of winning is high. The harm
to him is not receiving the residential placement called for in his IEP when the school year starts.
The harm to defendants is that the District has to foot the bill for his placement without
reimbursement from the ISBE. Plaintiff was granted in forma pauperis status in this action [12].
Granting this status, entailed a determination that plaintiff had insufficient income and assets to
pay the filing fee. She necessarily lacks the income or assets to pay for A.M.’s residential
placement pending the resolution of this lawsuit. While the District might prefer to use the funds
required to pay Brehm for some other purpose, it will be harmed far less than plaintiff by having
to do so.
Public Interest
Finally, entering the injunction 1s in the public interest. Defendants argue that the public
interest requires denial of the injunction, because it is a public school district so its taxpayers will
end up paying for the placement at Brehm if defendants win on the merits. However, the public
has an interest in school districts abiding by their agreements entered under 20 U.S.C. § 1415(e).
Allowing a school district to enter an agreement to settle a placement dispute, and then requiring
the parent to proceed to judgment on an action to enforce that agreement, while the educational
placement period established by the agreement is running during the course of the litigation, and
the child is not in the placement, could undermine the confidence of the public in the value of 20
U.S.C. § 1415(e) mediations. Granting the injunction is, therefore, in the public interest.
Bond
Fed. R. Civ. P. 65(c) provides that a court may issue a preliminary injunction “only if the
movant gives security in an amount the court considers proper to pay the costs and damages
sustained by any party found to have been wrongfully enjoined or restrained.” Despite its
seemingly mandatory language, Rule 65(c) grants the court discretion to enter a preliminary
injunction without requiring a bond under appropriate circumstances. Wayne Chemical, Inc. v.
Columbus Agency Service Corp., 567 F.2d 692, 701 Cir. 1977). Likelihood of success on the
merits is a basis for granting an injunction without a bond, Huntington Learning Centers, Inc. v.
BMW Education, LLC, No. 10-cv-79, 2010 WL 1006545, * 1 (E.D. Wis. March 15, 2010), as is
in forma pauperis status. Bentz v. Ghosh, No. 13-cv-00573, 2018 WL 1959780, *6 (S.D. Ill. Apr.
26, 2018). The court exercises its discretion and issues the preliminary injunction without bond
based on plaintiff's in forma pauperis status and high likelihood of success on the merits.
For the foregoing reasons, plaintiff's motion for a preliminary injunction is granted.
Defendants shall pay for A.M.’s residential placement at Brehm starting August 21, 2021 per the
terms of the Mediation Agreement entered May 3, 2021, until further order of court. Plaintiff
shall submit a proposed injunction order consistent with this memorandum opinion and in
compliance with Fed. R. Civ. P. 65.
Date: 8/18/2021 ENTER:
United States District Court Judge
Electronic Notices. (LC)