# C.B. v. Board of Education of City of Chicago, District 299

> District Court, N.D. Illinois · August 26, 2022

URL: https://www.frixlaw.com/law-library/cases/10147421

## Case

- **Court:** District Court, N.D. Illinois
- **Decided:** August 26, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10147421

## How later opinions describe it (automated extraction)

- discussing causation element for Title VII and Title IX retaliation claims
- discussing motive for state law retaliatory discharge claim but acknowledging issue of employer’s true not suitable for Rule 12(b)(6) resolution

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

C.B., et al.,

Plaintiffs, No. 20-cv-00586

v. Judge Franklin U. Valderrama

BOARD OF EDUC. OF CITY OF

CHICAGO, DISTRICT 299, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER
Plaintiff B.B., in her own capacity and as parent of C.B., brings a five-count
complaint against the Board of Education of Chicago Public Schools, District 299
(CPS); Elizabeth Wagman (Wagman); and Christine Mock (Mock) (collectively
Defendants),1 R. 60, SAC ¶¶ 6–8,2 asserting violations of the Individuals with
Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq., (Count I); Section 504 of
the Rehabilitation Act of 1973 (Section 504), 29 U.S.C. § 794, for disability
discrimination (Count III) and retaliation for disability-related advocacy (Count IV);
and a violation of the Illinois School Student Records Act (ISSRA), 105 ILCS 10/1 et
seq. (Count V). Plaintiffs also bring claims against Wagman and Mock in their

1The parties agreed to dismiss the Illinois State Board of Education (ISBE) as a Defendant
on April 12, 2021. R. 74.

2Citations to the docket are indicated by “R.” followed by the docket number and, where
necessary, a page or paragraph citation.
individual capacities for violations of the IDEA and the First Amendment right to
free speech, pursuant to 42 U.S.C. § 1983 (Count II). Defendants move to dismiss all
five counts pursuant to the Federal Rule of Civil Procedure 12(b)(6). R. 64, Mot.

Dismiss at 1. For the following reasons, Defendants’ Motion to Dismiss is granted in
part and denied in part.
Background3
C.B. is a teenager with a speech/language impairment and specific learning
disability who hopes to become an engineer one day. SAC ¶¶ 15, 17, 18. C.B. resides
with his mother, B.B., within the boundaries of Chicago Public Schools (CPS). Id.

¶¶ 4–5. Due to his impairment and learning disability, C.B. qualifies for special
education. Id. ¶ 17. As of the filing of the second amended complaint, C.B. attended
Gary Comer Middle School (Comer), a charter school for which CPS serves as the
special education local education agency. Id. ¶ 15. As such, CPS is responsible for
convening Individualized Education Program (IEP) meetings, triennial assessments,
and eligibility meetings related to C.B. Id. ¶ 6.
C.B. began attending CPS schools after moving to Chicago in second grade.

SAC ¶ 21. When C.B. reached fourth grade, CPS assessed him and determined that
he qualified for special education based on his speech-language impairment and
specific learning disability. Id. ¶ 22. CPS and B.B. entered an agreement allowing
C.B. to attend Cove School (Cove), a disability-segregated, separate day school that
focuses on students with specific learning disabilities. Id. ¶ 23. Although the

3The Court accepts as true all of the well-pleaded facts in the SAC and draws all reasonable
inferences in favor of Plaintiffs. Platt v. Brown, 872 F.3d 848, 851 (7th Cir. 2017).
agreement did not include a termination date, CPS agreed to provide a “similarly
situated” placement for C.B. if Cove became unavailable to him. Id. ¶ 24.
C.B. made significant progress during his fifth-grade year. SAC ¶ 25. During

C.B.’s sixth-grade year, B.B. began to have significant concerns; at that time, C.B.’s
education was governed by an IEP developed on September 23, 2016. Id. ¶ 26. B.B.
expressed numerous concerns about C.B.’s stagnation in reading as well as his
apparent lack of progress towards his IEP goals in spring 2017. Id. ¶ 27. Cove
responded, in part, by assigning a new social worker to C.B. who introduced more
appropriate activities. Id. Nevertheless, B.B. found CPS’s responses to her concerns

inadequate. Id.
Also during his sixth grade year, C.B. received racially charged text messages
from a white peer who asked if Black people should be called “Nigga?” SAC ¶ 27(g).
Instead of disciplining the white student, Cove required C.B. to work with the student
and encouraged B.B. to let them be friends and play together. Id. When C.B.
suggested that his class write about the incident, he was told to discuss it in private
with adults only. Id. His teacher then confiscated his phone, causing Plaintiffs great

stress because C.B. needed, and was permitted to have, immediate access to his
mother. Id.
In August 2017, during the summer before C.B.’s seventh-grade year, C.B.
received a postcard from a teacher who was involved in the previous year’s academic
and racially charged incidents. SAC ¶ 29. B.B. immediately emailed Cove and
requested that C.B. have no further contact with this teacher. Id. ¶ 30. She also
suggested Cove’s staff read a book called White Teacher to better educate themselves
on their own biases. Id. After briefly corresponding with Cove’s director, id. ¶¶ 31–
33, B.B. learned that Cove gave CPS a 30-day notice of its intention to discontinue

C.B.’s enrollment. Id. ¶ 34.
In September 2017, despite preparing to “release” C.B., Cove contacted B.B. to
schedule C.B.’s 2017 IEP meeting. SAC ¶ 34–36. The deadline for the meeting was
September 23, 2017, several days before the end of the 30-day period. Id. ¶ 36.
Nevertheless, CPS directed Cove not to conduct the meeting or speech-language
assessment. Id. ¶¶ 38–39. CPS also declined to work with Cove in transitioning C.B.

to his next school. Id. ¶ 44. While CPS did conduct nursing and psychological
assessments, it did not convene an eligibility meeting to discuss them. Id. ¶ 42. CPS
also conducted C.B.’s required triennial review late. Id. ¶ 40.
In response to Cove’s release of C.B., B.B. requested that CPS participate in a
voluntary mediation to develop an updated IEP; CPS declined. SAC ¶¶ 45–48. B.B.
also attempted to enroll C.B. in his school of residence, but CPS blocked the attempt.
Id. ¶ 52. CPS then suggested several placement options, all of which B.B. found

inappropriate and inconsistent with C.B.’s existing IEP. Id. ¶ 53. B.B. informed CPS
staff that she did not want C.B. to enter a school geared towards students with
emotional and behavioral disturbances, rather than learning disabilities. Id. ¶ 57.
Instead of responding to B.B., CPS sent out two referrals. Id. ¶ 58. B.B. spoke with
the intake coordinator at one of the referred schools, and they both agreed that the
school’s program was not appropriate for C.B. Id. ¶ 61. In turn, the school advised
CPS that B.B. was upset about receiving an inappropriate referral. Id. ¶ 62. Mock
stopped all communications with B.B. Id. ¶ 63–64. Mock then sent an internal email
advising that C.B. needed to be removed from Cove’s roster. Id. ¶ 66. On February 24,

2018, CPS purported to disenroll C.B. Id. ¶ 68.
In October 2018, B.B. requested through counsel that C.B. attend Acacia, a
school that was qualified to help students with learning disabilities. SAC ¶ 74.
Wagman agreed to consider that placement if and only if B.B. agreed to transport
C.B. to and from school. Id. ¶ 76. Wagman also offered an alternative school that was
located on a bus route but that B.B. found inappropriate. Id. Acacia eventually

accepted CPS’s referral, id. ¶ 80, but B.B. did not learn of this referral until after she
had already enrolled C.B. at Comer. Id. ¶ 84–85. In November 2018, B.B. requested
an Independent Educational Evaluation (IEE), which automatically triggered a due
process filing. Id. ¶¶ 81, 82.
C.B. entered sixth grade at Comer on January 7, 2019. SAC ¶ 86. In response
to CPS’s direction, Comer did not convene an assessment or IEP meeting. Id. ¶¶ 86,
87. C.B. remained at Comer for several weeks but was dismissed on February 20,

2019. Id. ¶ 88.4
In May 2019, the Parties reached an interim agreement allowing C.B. to return
to Comer. SAC ¶ 95. C.B. arrived at Comer on May 7, 2019, but was initially turned
away because CPS had not informed Comer of the interim agreement. Id. ¶ 96. C.B.
was allowed to return later that day. Id. ¶ 97. The interim agreement also called for

4Plaintiffs seek no damages for the time C.B. attended Comer between January 7, 2019 and
February 20, 2019. SAC ¶ 94.
prompt assessment and development of an IEP before the start of school. Id. CPS
finally convened an IEP meeting on October 9, 2019, C.B.’s first since September 23,
2016. Id. ¶ 113.

ISBE Hearing
After a series of continuances and scheduling issues with the Impartial
Hearing Officer (IHO), the Illinois State Board of Education (ISBE) conducted a due
process hearing in September 2019. SAC ¶¶ 10, 112. The hearing centered on two
primary issues: 1) whether the district’s psychological evaluation dated September
28, 2017 was inappropriate pursuant to the IDEA, and 2) whether C.B. was provided

with a FAPE from December 2016 to December 2018. See generally R. 1-1, IHO Order
at 4–5. The IHO ruled in favor of CPS on both claims and concluded that “[a]t all
times in question, the District has provided the Student with a FAPE.” Id. at 38.
Plaintiffs filed their original complaint on January 25, 2020. See R. 9, Complaint.
Plaintiffs amended their complaint in May 2020 and again on December 2020. R. 10,
60. The present motion to dismiss the SAC followed. R. 64.
Legal Standard

A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the
complaint. Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811,
820 (7th Cir. 2009). Under Rule 8(a)(2), a complaint must include only “a short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). To survive a motion to dismiss, a complaint need only contain factual
allegations, accepted as true, sufficient to “state a claim to relief that is plausible on
its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. The allegations “must be enough
to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. The
allegations that are entitled to the assumption of truth are those that are factual,
rather than mere legal conclusions. Iqbal, 556 U.S. at 678–79.
Analysis
I. IDEA (Count I)

In Count I, Plaintiffs allege that CPS violated the IDEA and ask the Court to
overturn the IHO’s decision because the IHO made numerous errors as to facts, law,
and mixed questions of fact and law. SAC ¶ 116.
The Individuals with Disabilities Education Act (IDEA) offers States federal
funds in exchange for a promise to provide a “free appropriate public education,” or
FAPE, to children with certain disabilities. Fry v. Napoleon Cmty. Sch., 580 U.S. 154,
137 S. Ct. 743, 748 (2017) (citing 20 U.S.C. § 1401(3)(A)(i)). The IDEA requires

participating States to provide every eligible child a FAPE, by means of a uniquely
tailored “individualized education program,” or IEP. 20 U.S.C.
§§ 1401(9)(D), 1412(a)(1); Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1,
580 U.S. 386, 137 S. Ct. 988, 994 (2017). The IEP is “the centerpiece of the statute’s
education delivery system for disabled children.” Id. (internal quotation marks and
citation omitted). See also Board of Ed. of Hendrick Hudson Central School Dist.,
Westchester Cty. v. Rowley, 458 U.S. 176, 181 (1982) (citing 20 U.S.C. § 1401(18))
(FAPE is tailored to unique needs of eligible child by means of ‘individualized
educational program’ (IEP).”). At the heart of the IEP process is a list of requirements

the local educational agency must follow in creating the IEP. See 20 U.S.C. § 1414(d).
Among these requirements is the mandate that the IEP be prepared by an IEP team
that includes at least one special education teacher, an individual qualified to
interpret assessments of the child, and the child’s parents. 20 U.S.C. § 1414(d)(1)(B).
The local educational agency must ensure the IEP team reviews the IEP at least once
a year. Id. § 1414(d)(4)(A)(i). Additionally, the agency must reevaluate the child at

least once every three years, unless the parent and the local educational agency agree
that a reevaluation is unnecessary. Id. § 1414(a)(2)(B)(ii).
The IDEA further safeguards qualifying students by enabling dissatisfied
students or parents to participate in an administrative hearing and judicial process.
20 U.S.C. § 1415. Parties may attempt to resolve their disagreements before an
impartial hearing officer (IHO) at an impartial due process hearing. 20 U.S.C.
§ 1415(f). If any party is “aggrieved” by the IHO’s findings and/or decisions, that party

may bring a civil action in district court. 20 U.S.C. § 1415(i)(2)(A); see also Endrew,
137 S. Ct. at 994; Navin v. Park Ridge Sch. Dist. No. 64, 2002 WL 774300, at *3–4
(N.D. Ill. Apr. 29, 2002).
In terms of judicial review of an IHO’s decision, the IDEA provides that: “[i]n
any action brought under this paragraph, the court—(i) shall receive the records of
the administrative proceedings; (ii) shall hear additional evidence at the request of a
party; and (iii) basing its decision on the preponderance of the evidence, shall grant
such relief as the court determines is appropriate.” 20 U.S.C. § 1415(i)(2)(C). On
issues of law, an IHO is entitled to no deference. Alex R. v. Forrestville Valley Cmty.

Unit Sch. Dist. #221, 375 F.3d 603, 611 (7th Cir. 2004) (citation omitted). However,
on issues of fact, the IDEA requires a district court to accord “due weight” to the IHO’s
decision. Id. at 612. The Seventh Circuit has explained that “due weight” differs from
case to case and depends on the amount of new evidence presented to the district
court. Id. (citations omitted). “At one end of the continuum, where the district court
does not take new evidence and relies solely on the administrative record, it owes

considerable deference to the hearing officer, and may set aside the administrative
order only if it is ‘strongly convinced that the order is erroneous.’” Id. (quoting School
Dist. v. Z.S., 295 F.3d 671, 675 (7th Cir. 2002)). On the other end of the continuum,
“[t]he more that the district court relies on new evidence . . . the less it should defer
to the administrative decision: judicial review is more searching the greater the
amount (weighted by significance) of the evidence that the court has but the agency
did not have.” Id. (internal quotation marks and citation omitted).

Defendants argue that Count I should be dismissed because: Plaintiffs have
not alleged any errors of law and have not presented any additional evidence that
was not before the IHO. Mot. Dismiss at 5–6. Defendants assert that the Court must,
accordingly, defer entirely to the IHO’s decision. Id. The Court disagrees.
Reading the allegations in the SAC in the light most favorable to Plaintiffs, as
the Court must, the Court cannot say that Plaintiffs have failed to allege any
questions of law. As Plaintiffs point out, a central claim in this case is that CPS failed
to provide C.B. with a FAPE; courts have held that that issue presents a mixed
question of law and fact that a court reviews de novo. See R. 70, Resp. at 6–7 (citing

Board of Educ. of Murphysboro Commun. Unit. Sch. Dist. No. 186 v. G.S., 41 F.3d
1162, 1166 (7th Cir. 1994)). See also Hjortness ex rel. Hjortness v. Neenah Joint Sch.
Dist., 507 F.3d 1060, 1064 (7th Cir. 2007) (citation omitted) (“Whether a school
district has offered a free appropriate public education to a disabled student is a
mixed question of law and fact.”); Monticello Sch. Dist. No. 25 v. George L. on Behalf
of Brock L., 102 F.3d 895, 905 (7th Cir. 1996) (citation omitted) (“Whether a school

district has provided a FAPE in the LRE is a mixed question of law and fact, which
we review de novo.”). Significantly, Defendants have failed to respond to Plaintiffs’
mixed question of law and fact argument, so they have waived any response.
See Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010) (citations omitted)
(“Failure to respond to an argument . . . results in waiver.”).
The Court is likewise unconvinced by Defendants’ argument that the Court
should dismiss the IDEA count because Plaintiffs have not presented any additional

evidence. See Mot. Dismiss at 6. As Plaintiffs emphasize, Resp. at 7, discovery has
not yet begun. Unlike the typical administrative appeal, which is based entirely on
the administrative record without discovery, the IDEA grants the trial court the
discretion to hear additional evidence: “the [district] court-- (i) shall receive the
records of the administrative proceedings; (ii) shall hear additional evidence at the
request of a party; and (iii) basing its decision on the preponderance of the evidence,
shall grant such relief as the court determines is appropriate.” 20 U.S.C.
§ 1415(i)(2)(C). See Bd. of Educ. of Twp. High Sch. Dist. No. 211 v. Ross, 486 F.3d
267, 270 (7th Cir. 2007) (citation omitted) (district court has discretion to admit

additional evidence to supplement the record); M.L. v. New York City Dep’t of Educ.,
943 F. Supp. 2d 443, 445 (S.D.N.Y. 2013) (IDEA administrative review different from
typical administrative review in that some discovery of additional evidence may be
permitted). As such, it is possible that Plaintiffs may later move the Court for leave
to conduct discovery on their IDEA claim and to supplement the administrative
record with additional evidence. See, e.g., L.S. v. Bd. Of Educ. Of Lansing Sch. Dist.

158, 2015 WL 3647759 (N.D. Ill. June 11, 2015); B.H. v. Joliet Sch. Dist. 86, 2009 WL
1269256 (N.D. Ill. Apr. 30, 2009).
To be clear, the Court is not holding that discovery on Plaintiffs’ IDEA claim
or the supplementing of the administrative record is warranted in this case. As the
court observed in L.S., “district courts are advised not to receive additional evidence
beyond the administrative record absent a strong justification for the failure to
present such evidence at the administrative level.” 2015 WL 3647759, at * 3 (citing

Monticello, 102 F.3d at 901). At this juncture in the litigation, however, with
discovery currently stayed, the Court has not had occasion to decide whether to hear
additional evidence in this case. It is possible that some additional evidence may be
appropriate pursuant to 20 U.S.C. § 1415, such as “[e]vidence related to a student’s
progress from the time of the hearing to the time of trial[.]” L.S., 2015 WL 3647759,
at * 9. Until the issue of whether to hear additional evidence is resolved, the lack of
additional evidence does not provide a basis for a more deferential standard of review.
In general, the Court is dubious about dismissing Plaintiffs’ IDEA count at this

juncture. From the Court’s review of other IDEA cases, summary judgment appears
to be the common vehicle for a district court’s review of an IHO’s decision. See, e.g.,
Z.J. v. Bd. of Educ. of the City of Chicago, Dist. No. 299, 344 F. Supp. 3d 988, 997
(N.D. Ill. 2018); Brad K. v. Bd. of Educ. of City of Chicago, 787 F. Supp. 2d 734, 738
(N.D. Ill. 2011); James D. v. Bd. of Educ. of Aptakisic-Tripp Cmty. Consol. Sch. Dist.
No. 102, 642 F. Supp. 2d 804, 811 (N.D. Ill. 2009). Indeed, the Seventh Circuit has

held that “[c]ross-motions for summary judgment are the standard method for
presenting a case to a district court for decision on the record compiled by the
administrative tribunal that the court is reviewing.” Dale M. ex rel. Alice M. v. Bd. of
Educ. of Bradley-Bourbonnais High Sch. Dist. No. 307, 237 F.3d 813, 816 (7th Cir.
2001) (citations omitted).
Notably, Defendants fail to direct the Court to any binding (or even in-Circuit)
authority indicating a court can dismiss an IDEA count like Plaintiffs’ on a motion to

dismiss. As a fellow district judge in this Circuit persuasively put it, “[o]verall, 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.” Bd. of Educ. of Lake Forest High
Sch. Dist. 115 v. Illinois State Bd. of Educ., 2020 WL 1467418, at *7 (N.D. Ill. Mar.
26, 2020) (Seeger, J.). Accordingly, the Court denies Defendants’ Motion to Dismiss
Count I.
The Court now turns to Defendants’ motion to dismiss Count II.

II. Section 1983 Claims against Wagman and Mock (Count II)

In Count II, Plaintiffs seek to hold Wagman, a former lawyer for CPS, and
Mock, a CPS special education administrator, individually liable for “[s]ubstantive
and [p]rocedural” violations of the IDEA, as well as for violations of “First
Amendment Free Speech Rights pursuant to 42 U.S.C. § 1983[.]” SAC ¶¶ 120–139.
Defendants employ a “kitchen sink” approach in moving to dismiss Count II, offering
no fewer than six bases for dismissal: (1) Wagman and Mock cannot be individually
liable under the IDEA; (2) Section 1983 does not provide relief for IDEA violations;
(3) Plaintiffs have no available damages against the individuals in Count II; (4)
Plaintiffs fail to state a claim for First Amendment retaliation; (5) (alternatively)
some of Plaintiff’s allegations are time-barred; and (6) (alternatively) Wagman and
Mock are entitled to qualified immunity. Mot. Dismiss at 6–11. While Defendants
have thrown a lot at the wall to dismiss Count II, none of their arguments stick, for

the reasons that follow.
a. Individual Liability under the IDEA
Defendants initially argue that the IDEA does not permit liability against
individual actors. Mot. Dismiss at 6 (citing Moore v. Hamilton Se. Sch. Dist., 2013
WL 4607228 (S.D. Ind. Aug. 29, 2013)).
In Moore, a high school freshman committed suicide following bullying from
his classmates and interpersonal issues with his stepfather. 2013 WL 4607228, at *1.
The parents filed suit against the school district, asserting multiple claims, including

negligence per se for violations of the IDEA and a Section 1983 IDEA claim. Id. The
plaintiffs brought suit against an assistant principal at the student’s school as well.
Id. The court granted the motion for summary judgment with respect to the IDEA
claim against the assistant principal, finding that individuals were not proper
defendants under the IDEA. Id. at *23. The court reasoned that the commands and
funding conditions of the IDEA, including the FAPE requirement, are directed at

states and local educational agencies, which are defined by statute. Id.
Plaintiffs, in contrast, direct the Court to Stanek v. St. Charles County, Unit
Sch. Dist. #303, 783 F.3d 634, 643–44 (7th Cir. 2015), for the proposition that
individual liability is allowed under the IDEA. Resp. at 11. In Stanek, an autistic
student and his parents sued a school district and various administrators for failing
to provide necessary educational services, bringing claims under Section 1983 for
violations of the IDEA, Rehabilitation Act, Americans with Disabilities Act, and

Fourteenth Amendment. Stanek, 783 F.3d at 638. The defendants moved to dismiss
the case, arguing, among other things, that the plaintiffs sued the wrong parties and
were trying to litigate claims belonging to the student. Id. at 639. The district court
largely agreed with the defendants and held, with respect to the individual
defendants, that the plaintiffs had no right of action against individual persons. Id.
The Seventh Circuit affirmed the district court’s dismissal of the individual
defendants in their individual capacity for the discrimination and retaliation claims
arising directly under the Rehabilitation Act and ADA. Id. at 644 (citations omitted).
However, the Seventh Circuit “dr[ew] the line . . . at the IDEA claims,” holding that

the IDEA claims against the individual defendants “should have gone forward at this
stage.” Id. The Seventh Circuit reasoned that it had “not found a decision from any
circuit holding that individual school employees cannot be personally liable for
violating the IDEA.” Id. (citation omitted). Yet, the Seventh Circuit stopped short of
holding that the IDEA does impose individual liability, stating: “[w]e offer no opinion
on the issue now, because it is relatively undeveloped.” Id. Defendants emphasize the

latter point in their reply brief, arguing “[a]s the law stands now, there is no statutory
basis or legal decision in the Seventh Circuit allowing individuals to be personally
liable under the IDEA.” R. 72, Reply at 4.
Admittedly, the Stanek decision presents the Court with a conundrum. On the
one hand, the Seventh Circuit reversed the district court for dismissing the plaintiffs’
IDEA claims against individual actors. 783 F.3d at 644. On the other, the Seventh
Circuit offered no opinion on whether the IDEA authorizes individual liability. Id.

The Court, therefore, appreciates Defendants’ contention that there is no binding law
in the Seventh Circuit affirmatively holding that individual liability is available
under the IDEA. Even so, the Court cannot disregard the Seventh Circuit’s reversal
of the district court in Stanek for doing exactly what Defendants are asking the Court
to do here. See Paddock Publications, Inc. v. Chicago Trib. Co., 103 F.3d 42, 46 (7th
Cir. 1996) (holdings of superior courts bind inferior courts even if not thoroughly
reasoned); Miller v. United States, 868 F.2d 236, 241 (7th Cir. 1989) (citation omitted)
(holding “bedrock principle of stare decisis” is that “lower courts are bound by the
precedential authority of cases rendered by higher courts”); Olson v. Paine, Webber,

Jackson & Curtis, Inc., 806 F.2d 731, 734 (7th Cir. 1986) (citation omitted)
(“Ordinarily a lower court has no authority to reject a doctrine developed by a higher
one.”). The Court accordingly declines to dismiss the IDEA claims against Wagman
and Mock. The Court would hold differently, however, if it were writing on a clean
slate, for the reasons that follow.
As an initial matter, while the caselaw may have been undeveloped in 2015

when Stanek was decided,5 courts across the country have since held that the IDEA
does not provide for individual liability. See, e.g., Hernandez v. Grisham, 508 F. Supp.
3d 893, 1009–10 (D.N.M. 2020); Patrick v. Success Acad. Charter Sch., Inc., 354 F.
Supp. 3d 185, 206 n.18 (E.D.N.Y. 2018); Killoran on behalf of Killoran v.
Westhampton Beach Sch. Dist., 2022 WL 866816, at *6 n.8 (E.D.N.Y. Mar. 22, 2022),
cert. denied, 2022 WL 1451384 (E.D.N.Y. May 9, 2022); A. A. P. v. Sierra Plumas Joint
Unified Sch. Dist., 2021 WL 847812, at *8 (E.D. Cal. Mar. 5, 2021); A.K. v.

Westhampton Beach Sch. Dist., 2019 WL 4736969, at *13 (E.D.N.Y. Sept. 27, 2019);
Driessen v. Univ. of Miami Sch. of L. Child. & Youth L. Clinic, 2019 WL 8895219, at
*1 (S.D. Fla. Sept. 24, 2019); Mueller v. Henrico Cnty. Sch. Bd., 2019 WL 3860199, at

5At least two Circuits appeared to have addressed this issue before Stanek. See Bradley v.
Arkansas Dep't of Educ., 301 F.3d 952, 957 n.6 (8th Cir. 2002) (recovery from state defendants
in their individual capacities not available for IDEA claim, observing “the IDEA is devoid of
textual support for such an award”); Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 35 (1st Cir.
2006) (interpreting the plain text of the IDEA and holding “no claim for monetary relief can
. . . be stated against individual defendants under IDEA”).
*4 (E.D. Va. Aug. 16, 2019); Rutherford v. Fla. Union Free Sch. Dist., 2019 WL
1437823, at *41 (S.D.N.Y. Mar. 29, 2019); D.W. by & through Williams v. Chesterfield
Cnty. Sch., 2018 WL 3098121, at *8 n.8 (E.D. Va. June 5, 2018), report and

recommendation adopted, 2018 WL 3097017 (E.D. Va. June 22, 2018); Crofts v.
Issaquah Sch. Dist., 2018 WL 1517671 (W.D. Wash. Mar. 28, 2018); Henry v. Lane,
2017 WL 1383356, at *6 (W.D. Pa. Apr. 18, 2017).
Moreover, the IDEA is devoid of any textual support of individual liability. For
instance, the IDEA authorizes reimbursement of educational expenses “only against
the agency, not against any of its officials.” Diaz-Fonseca, 451 F.3d at 35 (citing 20

U.S.C. § 1412(a)(10)(C)(ii)). “That only the public agency is liable for reimbursement
follows naturally from the fact that Congress assigned to the agency the ultimate
responsibility for ensuring FAPE.” Id. (citing 20 U.S.C. §§ 1400(c)(6), 1401(9)(A)). In
Taylor v. Altoona Area School Dist., the court similarly reasoned that because the
IDEA imposes substantive obligations on the governmental entities receiving federal
funds rather than on the individuals employed by those entities, the text of the
statute does not support liability against individual actors. Taylor v. Altoona Area

Sch. Dist., 513 F. Supp. 2d 540, 553 (W.D. Pa. 2007) (citation omitted) (“Congress
does not normally seek to impose liability on individuals when it places conditions on
the receipt of federal funds by entities that employ such individuals.”). The IDEA’s
definitions of “local educational agency” and “educational service agency” provide
further clarity on the issue, as the IDEA tasks those entities with providing each
eligible child with a FAPE, and neither definition—either explicitly or implicitly—
refers to individuals. 20 U.S.C. § 1401(5), 1401(19). In addition, Section 1415 of the
IDEA, which enables dissatisfied students or parents to participate in an
administrative hearing and judicial process explicitly applies to “[a]ny State

educational agency, State agency, or local educational agency that receives assistance
under this subchapter.” Id. § 1415(a).
So, if not for Stanek, the Court would dismiss the IDEA claims against
Wagman and Mock based on the text of the statute and the overwhelming weight of
authority finding that the IDEA does not authorize individual liability. See Eberhart
v. United States, 546 U.S. 12, 19–20 (2005) (lower court took “prudent course” and

facilitated higher court’s review on an issue by attempting to follow higher court’s
precedent while expressing its “grave doubts”); Gacy v. Welborn, 994 F.2d 305, 310
(7th Cir. 1993) (“Ours is a hierarchical judiciary, and judges of inferior courts must
carry out decisions they believe mistaken. A district judge who thinks that new
evidence or better argument ‘refutes’ one of our decisions should report his
conclusions while applying the existing law of the circuit.”).
b. Section 1983 as Method of Relief for IDEA Claim

Defendants next argue that Plaintiffs are “[t]rying to circumvent the obvious
conclusion that there can be no valid claim under the IDEA against the individuals”
by “try[ing] to invoke 42 U.S.C. § 1983 to assert an identical claim.” Mot. Dismiss
at 6. According to Defendants, Section 1983 cannot be used as a method of relief for
a statutory violation where providing a Section 1983 remedy would circumvent the
remedial scheme contained in the statute. Id. at 7 (citing Rancho Palos Verdes v.
Abrams, 544 U.S. 113, 115 (2005)). Because the IDEA is a “robust statutory scheme”
that does not allow for individual liability, reason Defendants, Plaintiffs cannot use
Section 1983 to “invent a new claim under the IDEA that does not independently

exist.” Mot. Dismiss at 7. In response, Plaintiffs assert that, per Stanek, the Seventh
Circuit “has left open the possibility of imposing individual liability under 42 U.S.C.
§ 1983 for IDEA violations.” Resp. at 11.
Stanek, once again, is a roadblock for Defendants. In Stanek, the district court
concluded that Section 1983 could not be used to enforce the IDEA. 783 F.3d at 643.
While acknowledging the circuit split on the issue, the Seventh Circuit characterized

the district court’s conclusion as “incorrect,” stating: “[t]his court . . . has come down
on the side of holding that § 1983 can be an avenue for pursuing remedies under
IDEA.” Id. at 643–44 (citing Marie O. v. Edgar, 131 F.3d 610, 621–22 (7th Cir. 1997);
Charlie F. v. Bd. of Educ. of Skokie Sch. Dist. 68, 98 F.3d 989 (7th Cir. 1996)). While
the Seventh Circuit stated that Marie O. and Charlie F. “may need to be revisited in
light of City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 125 S. Ct. 1453, 161
L.Ed.2d 316 (2005),” the very case cited by Defendants here, the Seventh Circuit

declined to reassess those cases. Id. (citations omitted).
In the wake of Stanek, district courts in this Circuit have followed the Seventh
Circuit’s lead. For instance, in Allison W. v. Oak Park & River Forest High Sch. Dist.
#200, 188 F. Supp. 3d 796 (N.D. Ill. 2016), the defendants similarly moved to dismiss
the IDEA claims on the basis that Section 1983 cannot be used to enforce the IDEA.
The court looked to Stanek and found that it was “of course[,] duty-bound to adhere
to Seventh Circuit law,” regardless of the circuit split on the issue. Id. at 797. In
addition, because the Seventh Circuit declined to decide whether the plaintiffs might
be able to seek recourse under Section 1983, the court in Alison W. declined to do so

as well and simply denied the motion to dismiss. “It would . . . violate fundamental
jurisprudential principles for this Court to swim against the tide when our Court of
Appeals has declined a like invitation.” Id. Along those same lines in Nardella v.
Leyden High Sch. Dist. 212, 2016 WL 3418571, at *3 (N.D. Ill. June 22, 2016), the
court rejected the defendants’ contention that Section 1983 actions are not available
to remedy IDEA violations in light of Stanek and followed the Seventh Circuit’s

example by withholding resolution of the Section 1983 question due to the parties’
“relatively succinct briefing” on the topic.
Just like the courts in Allison W. and Nardella, this Court declines to dismiss
Plaintiffs’ IDEA claims based on the argument that Section 1983 does not provide an
avenue for IDEA claims. As it stands, the law of this Circuit is that Section 1983 can
be used for IDEA claims, see Marie O. and Stanek, and until the Seventh Circuit rules
otherwise, the Court is duty-bound to follow Seventh Circuit precedent.

c. No Available Damages
Defendants further attack Plaintiffs’ claims against Wagman and Mock by
asserting that Plaintiffs “do not allege any recoverable damages against the
individuals.” Mot. Dismiss at 7. Defendants offer two primary reasons for their
position. First, Defendants argue that under the IDEA, “the only allowable form of
relief is compensatory education awards and reimbursements for expenses incurred
from the agency.” Id. (citing Ibata v. Bd. of Educ. of Edwardsville Cmty. Sch. Dist.,
2008 U.S. Dist. LEXIS 132519, at *10 (N.D. Ill. Mar. 7, 2008); Anderson v. Thompson,
658 F.2d 1205, n.12 (7th Cir. 1981); Charlie F., 98 F.3d 989). Second, Defendants

maintain that “[w]here Plaintiffs cannot recover monetary or punitive damages
against the individual defendants under the IDEA, they also cannot recover those
damages in a § 1983 suit for IDEA violations.” Id. (citing Malone v. Ill. State Bd. of
Edu., 2005 WL 8162706 (C.D. Ill. Sept. 23, 2005); Crocker v. Tennessee Secondary
Sch. Athletic Ass’n, 980 F.3d 382, 387 (6th Cir. 1992); Weyrick v. New Albany-Floyd
Cnty. Consol. Sch. Corp., 2004 U.S. Dist. LEXIS 26435, *21–23 (S.D. Ind. Dec. 23,

2004)).
Plaintiffs do not address Defendants’ authority but offer policy reasons for
compensatory damages against individual actors: “Plaintiffs allege that Wagman and
Mock disastrously usurped educator roles, excluded parent input, and sabotaged
C.B.’s education at Gary Comer. If they prevail, ‘fix-it’ orders in the form of
reimbursement and compensatory education for families, plus attorneys’ fees borne
by taxpayers, may not suffice: individuals may need personalized deterrents.” Resp.

at 11.
With respect to relief available under the IDEA, the Court agrees with
Defendants that Plaintiffs cannot seek, much less obtain, compensatory or punitive
damages against Defendants. The law is clear on that point. See, e.g., Charlie F., 98
F.3d at 991, abrogated in part on other grounds by Fry v. Napoleon Cmty. Sch., 580
U.S. 154 (“Charlie says that he wants compensatory money damages, which the IDEA
does not authorize. It does not contain an explicit limit, but the structure of the
statute—with its elaborate provision for educational services and payments to those
who deliver them—is inconsistent with monetary awards to children and parents.”);

McIntyre v. Eugene Sch. Dist. 4J, 976 F.3d 902, 910–11 (9th Cir. 2020) (citations
omitted) (“[IDEA plaintiffs] can pursue injunctive or other prospective relief,
including reimbursement for the cost of private education, but not ordinarily
monetary damages.”); Doe v. E. Lyme Bd. of Educ., 962 F.3d 649, 659 (2d Cir. 2020)
(citations omitted) (“Although courts may not award damages for violations of the
IDEA . . . they may award retrospective and/or prospective equitable relief, including

reimbursement of paid expenses or compensatory education.”); Indep. Sch. Dist. No.
283 v. E.M.D.H., 960 F.3d 1073, 1084 (8th Cir. 2020), cert. denied sub nom. Indep.
Sch. Dist. No. 283 v. E.M. D.H. ex rel. L. H., 142 S. Ct. 67, 211 L. Ed. 2d 9 (2021)
(citations omitted) (“Although compensatory damages are unavailable through the
IDEA, compensatory education is allowed.”).
The law is less clear, however, on whether Plaintiffs may be able to obtain
damages through Section 1983. Compare Malone, 2005 WL 8162706, at *6 (plaintiffs

cannot circumvent Charlie F. holding by suing under Section 1983), and Maldonado
v. Illinois State Board of Education, 2003 WL 1713834, at *7 (N.D. Ill. 2003) (same)
with Charnesky v. Shallenberger, No. 2008 WL 11518032, at *4 (N.D. Ill. Feb. 13,
2008) (citations omitted) (Section 1983 allows an IDEA-related award of money
damages where a defendant’s violation of a plaintiff’s rights causes plaintiff actual
injury), and Taylor v. Vermont Dep't of Educ., 313 F.3d 768, 786 n.14 (2d Cir. 2002)
(citations omitted) (“Although monetary damages are not available under the IDEA
itself, a plaintiff may recover monetary damages for a violation of the IDEA pursuant
to § 1983.”). See also Weyrick v. New Albany-Floyd County Consol. Sch. Corp., 2004

WL 3059793, at *7 (S.D. Ind. Dec. 23, 2004) (permitting IDEA plaintiffs to proceed
with Section 1983 claim for monetary damages).
In light of the tension in the law on whether an IDEA plaintiff can obtain
monetary damages via Section 1983, the Court cannot conclude at this stage that
Plaintiffs are barred from obtaining monetary damages for their Section 1983 claim.
See Bd. of Educ. of Elmhurst Cmty. Unit Sch. Dist. 205 v. Daniel M. ex rel. Michael

M., 2006 WL 2579679, at *3 (N.D. Ill. Sept. 5, 2006) (“The district court decisions are
in tension . . . Unless and until the Seventh Circuit speaks on the issue, this court
cannot conclude, at the pleading stage, that as a matter of law Daniel’s parents are
barred from obtaining damages for their § 1983 claim.”). Defendants’ “no available
damages” argument thus falls short.
d. First Amendment Retaliation
In addition to their IDEA claim against Wagman and Mock, Plaintiffs seek

damages against Wagman and Mock for their alleged violations of B.B.’s first
amendment right to free speech. SAC ¶ 13. Plaintiffs allege that Mock and Wagman
retaliated against Plaintiffs after B.B. complained about racial discrimination at
Cove and criticized CPS’s educational programs. Id. ¶ 127. According to Plaintiffs,
Wagman and Mock’s retaliation included: (a) excluding C.B. from school, excluding
B.B. from educational planning, harassing Plaintiffs after B.B. secured C.B.’s
attendance at a CPS charter school, id. ¶ 13; (b) refusing to make appropriate
referrals to schools that focused on remediation of academic and language skills, id.
¶ 127; (c) failing to hold an IEP meeting in 2019, id. ¶ 135; and (d) disenrolling C.B.

from Gary Comer, id. ¶ 128.
Defendants contend that Plaintiffs have failed to state a claim for first
amendment retaliation because B.B.’s speech did not involve a matter of public
concern. Mot. Dismiss at 8. According to Defendants, “[s]peech is only protected by
the First Amendment if it is on a matter of public concern.” Id. (citing Garcetti v.
Ceballos, 547 U.S. 410, 418 (2006)). While that is true for public employees bringing

first amendment retaliation claims, the SAC does not allege that B.B. is a public
employee, see Resp. at 16, and courts in this Circuit have declined to extend the public
concern test to plaintiffs who are not public employees. See, e.g., Bridges v. Gilbert,
557 F.3d 541, 551 (7th Cir. 2009); A.J. v. Butler Illinois Sch. Dist. 53, 2018 WL
1469005, at *8 (N.D. Ill. Mar. 26, 2018); Nolan v. Vill. of Dolton, 2011 WL 1548343,
at *3 (N.D. Ill. Apr. 21, 2011).
Even if B.B.’s protected speech were limited to matters of public concern, the

Court agrees with Plaintiffs, see Resp. at 16, that B.B. has plausibly alleged that her
comments about educational opportunity and the stigmatizing or maltreatment of
black students were matters of public concern. Defendants appear to concede that at
least some of B.B.’s speech involved matters of public concern. Specifically,
Defendants do not argue that B.B.’s general complaints about racial discrimination
at the Cove school failed to involve a public concern. Instead, Defendants insist that
those complaints are time-barred due to Section 1983’s two-year statute of
limitations. Mot. Dismiss at 8. Defendants aver that because C.B. attended Cove in
2015 and disenrolled in September 2017, Plaintiffs cannot rely on those statements

to support a First Amendment retaliation claim. Id. at 9.
A plaintiff can plead herself out of court on a statute of limitation basis if the
face of the complaint reveals that the claim is time-barred. Jay E. Hayden Found. v.
First Neighbor Bank, N.A., 610 F.3d 382, 383 (7th Cir. 2010). See also Small v. Chao,
398 F.3d 894, 898 (7th Cir. 2005) (citations omitted) (“Although the statute of
limitations is ordinarily an affirmative defense that must be pleaded under Fed. R.

Civ. P. 8(c), a district court may dismiss under Rule 12(b)(6) something that is
indisputably time-barred[.]”). Claims brought under Section 1983 are governed by the
statute of limitations for personal-injury claims in the state where the plaintiff’s
injury occurred. Savory v. Lyons, 469 F.3d 667, 672 (7th Cir. 2006). Pursuant to 735
ILCS 5/13-202, the Illinois statute of limitations for personal-injury actions is two
years from when the cause of action accrued. Neita v. City of Chicago, 830 F.3d 494,
498 (7th Cir. 2016); see also Lewis v. City of Chi., 914 F.3d 472, 478 (7th Cir. 2019).

Defendants insist that because Plaintiffs failed to respond to their argument
(that B.B.’s general complaints about racial discrimination cannot be relied on to
support a First Amendment retaliation claim), Plaintiffs have waived the argument.
Reply at 6. While the Court agrees that a party waives an argument when it fails to
respond, Plaintiffs’ waiver does not result in an automatic victory for Defendants. The
Court still needs to ensure that Defendants’ argument is right on the law. Put another
way, the Court will not dismiss the SAC on a limitations basis merely on the
Defendants’ say-so.
Defendants urge the Court to dismiss the first amendment retaliation claim

because B.B. complained about racial discrimination at Cove before January 25, 2018
(two years before Plaintiffs filed their original complaint). Mot. Dismiss at 8–9.
However, first amendment retaliation claims accrue when the retaliatory act
occurred, not when the protected speech was made. See Towne v. Donnelly, --- F. 4th
----, 2022 WL 3274098, at *3 (7th Cir. 2022) (internal quotation marks and citations
omitted) (“In the context of a First Amendment retaliation claim, we have held that,

generally, the statute of limitations clock begins to run immediately after the
retaliatory act occurred, so long as the plaintiff knows or should know that [her]
constitutional rights have been violated[.]”). Consequently, Defendants have directed
the Court to the wrong starting point for its limitations analysis.
Drawing all reasonable inferences from the SAC in Plaintiffs’ favor, as the
Court must, the SAC alleges various retaliatory acts by Wagman and Mock occurring
after January 25, 2018, including but not limited to: purporting to disenroll C.B. in

February 2018; causing Gary Comer to disenroll C.B. in February 2019; and refusing
to assess C.B. or hold an IEP meeting throughout early 2019. SAC ¶¶ 128, 132, 135.
The Court therefore cannot say that Plaintiffs’ first amendment retaliation claims
are “indisputably time-barred.” Small, 398 F.3d at 898. As such, the Court will not
dismiss Count II on a limitations basis.
e. Statute of Limitations
Defendants perfunctorily argue, in the alternative, that because Plaintiffs filed
their original complaint on January 25, 2020, any conduct occurring before

January 25, 2018 is time-barred, including “claims Wagman and Mock failed to
conduct an IEP meeting by September 2017 and refused to make school referrals in
2017 and afterwards.” Mot. Dismiss. at 9. Plaintiffs failed to respond to this argument
too, and thus have waived their response. See Bonte, 624 F.3d at 466. Yet, as stated
above, the Court will not dismiss a count on limitations grounds unless it is clear
from the face of the complaint that the count is time-barred. See Xechem, Inc. v.

Bristol-Myers Squibb Co., 372 F.3d 899, 901 (7th Cir. 2004) (citation omitted)
(dismissal based on affirmative defense is permissible only if the complaint “admits
all the ingredients of an impenetrable defense”).
Here, the Court cannot say that the SAC’s allegations make Defendants’
limitations defense “impenetrable.” In particular, the SAC’s allegations regarding
CPS’s continuous refusal to hold an IEP meeting or make school referrals raises the
possibility of a continuing violation, which would permit Plaintiffs to pursue a claim

that began outside the limitations period. See generally Macklin v. United States, 300
F.3d 814, 824 (7th Cir. 2002). In Weyrick, a case cited by Defendants, the court
declined to dismiss a plaintiff’s claims with regard to his secondary education as
untimely because the court found there may be a continuing violation: “IDEA duties
. . . are ongoing. Evaluation, case conferences, and IEP development are required at
a minimum annually, and more frequently if needed. Thus, plaintiffs’ allegations of .
. . years of continuous inaction with respect to [the student’s] disability might support
a finding of a continuing violation.” Weyrick, 2004 WL 3059793, at *14. Like the court
in Weyrick, this Court “expresses no opinion as to whether plaintiffs could establish

at later stages of litigation that the circumstances triggering the continuing violation
doctrine exist in fact.” Id. But, “[t]he fact that the case is here on a Rule 12(b)(6)
motion to dismiss is critical,” and Plaintiffs “are not required to plead the timeliness
of their suit.” Id. (citations omitted). The Court therefore rejects Defendants’
alternative limitations argument.
f. Qualified Immunity

Defendants’ final argument with respect to Count II, also in the alternative, is
that Count II should be dismissed because Wagman and Mock are entitled to
qualified immunity. Mot. Dismiss at 9–11.
“State officials who occupy positions with discretionary or policymaking
authority and are acting in their official capacity may have qualified immunity for
claims alleging that the state officials violated the constitutional rights of a plaintiff.”
Jacobs v. City of Chicago, 215 F.3d 758, 766 (7th Cir. 2000) (citations omitted). Such

officials “are shielded from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable
person would have known.” Id. (internal quotation marks and citations omitted).
Courts must take great care when evaluating qualified immunity at the
pleadings stage. In one respect, because qualified immunity “is designed to protect
defendants from the burden of suit, as well as the burden of liability,” the question of
qualified immunity “should be resolved as promptly as possible.” Harrell v. Cook, 169
F.3d 428, 431 (7th Cir. 1999). At the same time, “dismissing a § 1983 suit at [the
motion to dismiss] stage on qualified immunity grounds is a delicate matter because

the federal rules do not require a plaintiff to anticipate a qualified immunity defense
and allege every fact needed to defeat it in the complaint.” Brown v. City of Chicago,
--- F. Supp. 3d ----, 2022 WL 865796, at *11 (N.D. Ill. Mar. 23, 2022) (internal
quotation marks and citations omitted). As the Seventh Circuit recently held, a
complaint “may be dismissed under Rule 12(b)(6) on qualified immunity grounds
where the plaintiff asserts the violation of a broad constitutional right that had not

been articulated at the time the violation is alleged to have occurred.” Hanson v.
LeVan, 967 F.3d 584, 590 (7th Cir. 2020) (internal quotation marks and citations
omitted). In Hanson, the Seventh Circuit reiterated that a public official “is entitled
to dismissal unless (1) the plaintiffs adequately alleged facts that, if true, would
constitute a violation of a statutory or constitutional right, and (2) the right was
‘clearly established’ at the time of the alleged violation, such that a reasonable public
official would have known his conduct was unlawful.” Id. (citation omitted).

Defendants posit that Plaintiffs have failed to sufficiently allege a claim for
violation of the IDEA or first amendment against Wagman and Mock, and that even
if there were a statutory violation, “Plaintiffs are unable to point to any authority to
put Wagman and Mock on notice that their actions violated a clearly established law”
because Plaintiffs fail to direct the Court to a factually similar case. Id. at 10 (citing
Lee v. Young, 533 F.3d 505, 512 (7th Cir. 2008)). Plaintiffs counter that qualified
immunity does not apply because the violation in this case was “so clear that a
government official would have known that his actions violated the plaintiff’s rights
in the absence of a factually similar case.” Resp. at 12 (citing Lee, 533 F.3d at 512).6

Because the Court has already held that Plaintiffs have plausibly alleged an
IDEA claim against Wagman and Mock (in light of Stanek),7 the first prong for
overcoming the qualified immunity test is satisfied, and the Court turns to assessing
whether those rights were “clearly established” at the time of the alleged violation,
such that a reasonable public official would have known her conduct was unlawful.
Hanson, 967 F.3d at 590. “Critically, [the Court] approach[es] this question by taking

the plaintiffs’ well-pleaded allegations as true.” Id. at 596.
Contrary to Defendants’ argument, see Mot. Dismiss at 10, Plaintiffs direct the
Court to cases involving IDEA-related procedural violations similar to the ones
Plaintiffs allege here. See, e.g., Resp. at 12 n.7 (citing S.H. v. Mount Diablo Unif. Sch.
Dist., 263 F. Supp. 3d 746 (N.D. Cal. 2017) (school denied FAPE by failing to complete
full IEP)). The SAC also plausibly alleges that Mock and Wagman violated rights that
were “clearly established,” including the right to a FAPE, 34 C.F.R. § 300.101;

§ 300.111. Resp. at 8; SAC ¶¶ 135, 138. Plaintiffs have accordingly done enough to
hold qualified immunity at bay, for now. See Hanson, 967 F.3d at 597 (internal
quotation marks and citation omitted) (“[Q]ualified immunity warrants dismissal at

6As noted below, Plaintiffs further direct the Court to cases they deem analogous to the
allegations in the SAC. Id. at 12 n.7 (collecting cases).

7Defendants do not argue that the law is not “clearly established” for first amendment
retaliation claims like Plaintiffs’, so the Court does not address qualified immunity with
respect to that claim against Wagman and Mock.
the 12(b)(6) stage only when the plaintiff asserts the violation of a broad
constitutional right that had not been articulated at the time the violation is alleged
to have occurred.”).

Rather than address Plaintiffs’ submitted analogous authority, Defendants
maintain that Wagman and Mock’s actions were “reasonable in light of the
circumstances,” and argue that Plaintiffs’ allegations are “insufficient to establish
either Mock (a special education administrator) or Wagman (a Board attorney) were
decision makers subjecting either to individual liability.” Reply at 8, 9.8 Discovery
may show that Defendants are correct on both accounts. For now, at the pleadings

stage, it is too early to tell. See Stanek, 783 F.3d at 644 (citing Kiddy–Brown v.
Blagojevich, 408 F.3d 346, 357 (7th Cir. 2005) (“It was [] premature to dispense with
the [plaintiffs]’ § 1983 claims on qualified-immunity grounds with such an
undeveloped record.”); Hitzke as next friend of Hitzke v. Vill. of Mundelein, 524 F.
Supp. 3d 822, 830–31 (N.D. Ill. 2021) (qualified immunity could not be resolved on
motion to dismiss where fact issues existed to the reasonableness of defendants’
conduct and where discovery could show that the defendants’ violation of plaintiff’s

rights was so egregious and unreasonable that no reasonable defendant could have
thought he was acting lawfully).

8Defendants also appear to cite Benson for the proposition that constitutional rules requiring
the balancing of competing interests can rarely be considered “clearly established.” Mot.
Dismiss at 10 (citing Benson v. Allphin, 786 F.2d 268, 276 (7th Cir. 1986)). Even if Benson
were still good law and stood for that proposition, Defendants have not explained how the
IDEA violations they are asserting qualified immunity over involve such a balancing of
interests, so the argument misses the mark.
Defendants have failed, at this point, to persuade the Court that qualified
immunity applies. The Court, thus, denies Defendants’ Motion to Dismiss Count II.
Defendants are not precluded, however, from moving again for qualified immunity at

a later juncture.
III. Section 504 Disability-Based Discrimination Claim (Count III)
In Count III, Plaintiffs assert that CPS failed to meet C.B.’s educational needs
as adequately as CPS meets the needs of its students without disabilities. SAC ¶ 143.
More specifically, Plaintiffs contend that, in contrast to how CPS treats nondisabled
students, CPS discriminated against C.B. by failing to provide C.B. with goals or

instruction in science and social studies, forcing C.B. to miss more than a year of
school, forcing C.B. into environments dominated by peers with emotional and
behavioral disabilities, refusing to let C.B. enroll at his school of residence, and taking
no action to ensure C.B. was in school or receiving instruction. Id. ¶¶ 144–147.
Defendants move to dismiss count III, for two main reasons.9 First, Defendants
assert that “[w]here a Section 504 claim is based on the theory of denial of FAPE
under the IDEA and a plaintiff fails to meet her burden under the IDEA, the Section

504 claim also fails.” Mot. Dismiss at 12. Alternatively, Defendants contend that
Plaintiffs have failed to allege that C.B. was excluded from an educational program
or position that he was otherwise qualified for because of his disability, or that CPS
acted with bad faith or gross misjudgment. Id. at 13. Because the Court has not

9Defendants also argue that Count III is time-barred. Mot. Dismiss at 12. Because the Court
agrees that Plaintiffs have failed to state a claim for Section 504 discrimination, the Court
does not reach Defendants’ limitations argument.
dismissed Plaintiffs’ IDEA claim, Defendants’ first argument fails. To weigh
Defendants’ second argument, the Court assesses whether Plaintiffs have properly
pled the elements of a Section 504 claim.

The Rehabilitation Act specifically prohibits federally funded organizations
from discriminating on the basis of disability. Wis. Community Services v. City of
Milwaukee, 465 F.3d 737, 746 (7th Cir. 2006). To state a claim under the
Rehabilitation Act, a plaintiff must allege that: 1) he is a qualified individual with a
disability; 2) he was denied the benefits of the “services, programs, or activities of a
public entity”; and 3) he was denied those benefits or otherwise discriminated against

on account of his disability. Clemons v. Dart, 168 F. Supp. 3d. 1060, 1065 (N.D. Ill.
2016). Defendants do not dispute that Plaintiffs have met the first element.
Instead, Defendants contest the second and third elements, asserting that
Plaintiffs have failed to allege that C.B. was excluded from an educational program
or activity because of his disability. Mot. Dismiss at 13. Defendants rely on B.H. v.
Joliet, 2010 WL 1177447 (N.D. Ill. Mar. 19, 2010) to support their contention.
Plaintiffs retort that the Seventh Circuit’s decision in CTL v. Ashland Sch. Dist., 743

F.3d 524, 529 (7th Cir. 2014) superseded B.H. Resp. at 14.
In B.H., a student and parent brought suit against a school district pursuant
to Section 504 of the Rehabilitation Act and the IDEA. 2010 WL 1177447, at *1. The
district moved for summary judgment on the plaintiffs’ Section 504 discrimination
count. Id. at *10. The court in B.H. set out the standard for a Section 504
discrimination case in the IDEA context, holding: “[E]ven where a disabled student
plaintiff shows that a defendant school district violated the IDEA, there is a separate
and higher standard the plaintiff must meet to demonstrate a violation of Section
504.” Id. The court elaborated that “‘[s]omething more than a mere violation of the

IDEA is necessary in order to show a violation of Section 504 in the context of
educating children with disabilities; i.e., a plaintiff must demonstrate that a school
district acted with bad faith or gross misjudgment.’” Id. (quoting Tammy S. v.
Reedsburg Sch. Dist., 302 F. Supp. 2d 959, 982 (W.D. Wis. 2003)). The court therefore
granted summary judgment for the district on the plaintiffs’ Section 504 count
because there was no evidence in the record that the district’s conduct was done “with

discriminatory animus, bad faith, or gross misjudgment.” Id. at *11 (internal
quotation marks and citation omitted).
Consistent with the holdings in B.H. and Tammy S., several courts have found
that a Section 504 discrimination claim requires more than a mere IDEA violation; it
requires a demonstration of bad faith or gross misjudgment. See, e.g., M.Y., ex rel.,
J.Y. v. Special Sch. Dist. No. 1, 544 F.3d 885, 888 (8th Cir. 2008); Sellers by Sellers v.
Sch. Bd. of City of Mannassas, Va., 141 F.3d 524, 528–29 (4th Cir. 1998); Cianciotto

on behalf of D.S. v. New York City Dep't of Educ., --- F. Supp. 3d ----, 2022 WL
1204788, at *17 (S.D.N.Y. Apr. 22, 2022); P.C. v. Oceanside Union Free Sch. Dist., 818
F. Supp. 2d 516, 533 (E.D.N.Y. 2011). See also Beth B. v. Van Clay, 211 F. Supp. 2d
1020, 1035 (N.D. Ill. 2001), aff'd, 282 F.3d 493 (7th Cir. 2002) (internal quotation
marks and citations omitted) (“It is not enough to show that the district made an
improper placement, or that the attempted accommodations proved inadequate.
These are not educational malpractice claims. There must be gross misjudgment or
bad faith on the part of school officials.”).
In CTL, a diabetic student and his parents brought suit against his former

public school district for discriminating against him on the basis of his disability in
violation of Section 504 of the Rehabilitation Act and the Americans with Disabilities
Act. 743 F.3d at 525–27. The district court granted summary judgment in favor of the
school district. Id. at 527. On appeal, the plaintiffs implied that any individualized
Section 504 plan violation is sufficient for a claim of disability discrimination under
Section 504. Id. at 529. In evaluating the plaintiffs’ argument, the Seventh Circuit

reviewed cases holding that the mere denial of a FAPE did not automatically
establish a violation of Section 504. Id. (citing Miller ex rel. S.M. v. Bd. of Educ. of
Albuquerque Pub. Sch., 565 F.3d 1232, 1246 (10th Cir. 2009); Mark H v. Lemahieu,
513 F.3d 922, 936 (9th Cir. 2008)). The Seventh Circuit therefore held “for 504 plan
violations to constitute disability discrimination, they must be significant enough to
effectively deny a disabled child the benefit of a public education.” Id. at 529–30
(citation omitted). Applying that standard, the Seventh Circuit ultimately concluded

that the school district did not fail to reasonably accommodate the student’s diabetes
because the student regularly attended school, performed well, and suffered no
adverse health consequences at school. Id. at 530. At most, reasoned the Seventh
Circuit, the district’s failure to train two additional staff members as diabetes
personnel was “a minor violation of the 504 plan” which “in no way made [the student]
unsafe or denied him the benefit of a public education.” Id. The Seventh Circuit
additionally found that there was not enough evidence for a jury to conclude that the
school intentionally discriminated against the student, so the court affirmed the
district court’s grant of summary judgment. Id. at 531.

The Court agrees with Defendants that CTL did not overrule or supersede the
holding in B.H. See Reply at 10. The Seventh Circuit in CTL was assessing the
plaintiffs’ Section 504 discrimination evidence in the context of a Section 504 plan
and was answering the narrow question of whether the violation of a Section 504 plan
alone inevitably established a Section 504 discrimination claim. The Seventh Circuit
responded in the negative and went on to assess whether the violation of the Section

504 violation in that case was significant enough to effectively deny the disabled child
the benefit of a public education. The Seventh Circuit in CTL did not address the
issue of bad faith or gross misjudgment, as did the courts in B.H. and Tammy S. Thus,
Defendants are correct that Plaintiffs’ discussion of CTL is a red herring. Reply
at 10.10
Applying the principles of B.H. and Tammy S. here, the Court finds that the
SAC fails to allege bad faith or gross misjudgment. Instead, Plaintiffs merely

regurgitate their IDEA allegations and offer boilerplate, conclusory allegations. See,
e.g., SAC ¶ 150. Indeed, as previously asserted in their IDEA claim, Plaintiffs allege
that CPS: failed to provide C.B. with science and social studies instruction, see SAC

10Even if CTL had removed the need for Plaintiffs to plead bad faith or gross misjudgment,
CTL certainly did not hold that Plaintiffs could bypass the need to plausibly allege
intentional discrimination. The SAC offers a solitary boilerplate statement that Defendants
“discriminat[ed] against Plaintiffs on the basis of C.B.’s disabilities.” SAC ¶ 150. That lone
statement is insufficient to plead intentional discrimination for Plaintiffs’ Section 504 claim.
¶ 115; forced C.B. to miss more than a year of school, see generally SAC; prohibited
C.B. from attending his school of residence, see id. ¶ 52; made no efforts to ensure
that C.B. was in school, see id. ¶ 115(e)(v); and failed to update his IEP, see, e.g., id.

¶ 115(c)(v), (f), (h), (iv). Although the complaint need not use the term FAPE for the
Court to find they are seeking relief for a denial of a free appropriate public education,
Fry, 137 S. Ct. at 755, here, Plaintiffs do explicitly assert that CPS violated Section
504 “by denying a free appropriate public education pursuant to Section 504.” SAC
¶ 150. But as B.H. and Tammy S. instruct, pleading the mere denial of a FAPE is not
enough to plausibly allege a Section 504 discrimination claim.

Because Plaintiffs have not plausibly alleged that Defendants acted in bad
faith or with gross misjudgment, nor that C.B. was discriminated against on account
of his disability, the Court grants Defendants’ Motion to Dismiss Count III.
IV. Section 504 Claim for Retaliation for Disability-Related Advocacy
(Count IV)

In Count IV, Plaintiffs assert that CPS retaliated against Plaintiffs by:
“stonewalling” B.B., SAC ¶ 157; failing to convene an IEP meeting due to “staffers’
irritation with B.B.,” id. ¶ 156(e); and rejecting help from Cove School because of
B.B.’s response to racially charged incidents that occurred while C.B. attended Cove,
id. ¶ 156(f).
“Section 504 requires schools to accommodate a student's disability, provide
students with disabilities with equal opportunities to participate in extracurricular
activities, account for disabilities when imposing disciplinary measures, and
prohibits retaliation against students who request accommodations.” Thurmon v.
Mount Carmel High Sch., 191 F. Supp. 3d 894, 898 (N.D. Ill. 2016). To assert a claim
for retaliation under Section 504, the plaintiff must allege: 1) a statutorily protected
activity, 2) an adverse action, and 3) a causal connection between the two. Id. at 899

(citations omitted). A materially adverse action is one that would dissuade a
reasonable person from engaging in protected activity. See Lewis v. Wilkie, 909 F.3d
858, 867 (7th Cir. 2018).
Defendants urge the Court to dismiss Count IV, positing that Plaintiffs have
not alleged any facts to show they suffered a materially adverse action, and also, that
Plaintiffs have failed to plead causation. Mot. Dismiss at 14.11

a. Materially Adverse Action

Defendants claim that the actions Plaintiffs suffered here were “mere slights”
rather than materially adverse actions and, thus, cannot support a retaliation claim.
Mot. Dismiss at 14. Plaintiffs respond that the Seventh Circuit has allowed similar
claims to proceed in the past. Resp. at 14–15 (citing Stanek, 783 F.3d at 643; Mosely
v. Board of Educ. of the City of Chicago, 434 F.3d 527, 534 (7th Cir. 2006)). Defendants
reply by asserting (incorrectly) that Plaintiffs “rely exclusively on Mosely,” while
making no attempt to distinguish Stanek. Reply at 12. Defendants moreover insist
that Mosely is “easily distinguishable” because the parent in that case suffered a

11Defendants state that many of the SAC’s alleged adverse actions are time-barred without
developing that assertion. See Mot. Dismiss at 12, 14. As explained above, the Court cannot
say that the SAC’s allegations provide Defendants with an impenetrable limitations defense.
Defendants’ contention therefore falls flat. Plaintiffs additionally allege facts regarding
retaliation occurring after January 24, 2018, which support their Section 504 retaliation
claim.
significant change in her status as chairperson, an action Defendants claim easily
qualifies as an adverse act. Id.
The Court disagrees with Defendants’ reading of Mosely. The parent in Mosely,

like B.B. here, claimed that the district caused the parent to suffer a “freeze-out,”
whereby the parent was not allowed to participate in her role as a chairperson and
was deprived of important information regarding the school’s budget proposals. 434
F.3d at 534. So too here, Plaintiffs specifically allege that B.B. suffered such a “freeze-
out,” in which she was excluded from educational planning for her son. Resp. at 15;
see also SAC ¶ 157.

Similarly, in Stanek, the parent plaintiffs alleged that the school “froze them
out” after they requested accommodations for their child’s disability. 783 F.3d at 643.
The Seventh Circuit held that the parents’ allegation of a “freeze-out” sufficed at the
pleadings stage. See id. (citing Mosely, 434 F.3d at 533–34) (“[Parents] do not catalog
in their complaint the adverse actions taken against [child] as a result of their
requests, but they do allege that the school froze them out after their requests. This
is enough.”).

Defendants argue that the freeze-out cannot be considered here because B.B.
was the one who engaged in disability-related advocacy, while C.B. suffered the
freeze-out. Reply at 13. Defendants miss the point. Plaintiffs are not arguing that the
freeze-out only happened to C.B. Rather, Plaintiffs repeatedly allege that CPS
stopped returning B.B.’s calls, thereby freezing her out of the decision-making process
regarding C.B.’s education. See SAC ¶¶ 64, 115(e)(iv). The Court consequently finds,
in light of Mosely and Stanek, that Plaintiffs have adequately pled a materially
adverse action.

b. Causation

Defendants next maintain that Plaintiffs have failed to plead causation,
asserting that Plaintiffs’ allegations contain only legal conclusions. Mot. Dismiss
at 11. Plaintiffs respond that they have alleged a long history of irritation and
retaliation. Resp. at 15 (citing SAC ¶¶ 8, 14, 23, 38, 53, 62–64, 66–67, 76, 115(e),
115(g), 122–37). Plaintiffs further contend that it is a factual assertion, not a legal
conclusion, to claim that retaliation was the cause of several of CPS’s actions. Id.
Neither party cites case law on the pleading requirements for the causation
element of a Section 504 retaliation claim. In analogous contexts, however, courts
have considered whether plaintiffs have alleged some “retaliatory motive” connecting
the protected activity and adverse action. See Doe v. Columbia Coll. Chi., 299 F. Supp.
3d 939, 960 (N.D. Ill. 2017), aff'd, 933 F.3d 849 (7th Cir. 2019) (looking for retaliatory
motive allegation in connection with Title IX retaliation claim); Cardenas v. First

Midwest Bank, 114 F. Supp. 3d 585, 591 (N.D. Ill. 2015) (discussing motive for state
law retaliatory discharge claim but acknowledging issue of employer’s true not
suitable for Rule 12(b)(6) resolution). The Seventh Circuit has also considered
circumstantial evidence of causation, usually at the summary judgment stage, such
as suspicious timing, ambiguous oral or written statements, behavior towards other
individuals who are part of a protected group, and other actions. Milligan v. Bd. of
Trs., 686 F.3d 378, 388–89 (7th Cir. 2012) (discussing causation element for Title VII
and Title IX retaliation claims).
Here, Plaintiffs allege a retaliatory motive, asserting that Defendants were

irritated with B.B. for her advocacy. SAC ¶ 124. Moreover, Plaintiffs point to some
suspicious timing in the SAC, including CPS directing Cove not to conduct C.B.’s IEP
meeting shortly after B.B. complained about racial bias at Cove, followed by CPS’s
refusal to participate in mediation with Plaintiffs. See, e.g., id. ¶¶ 30, 48, 68. Plaintiffs
also explicitly allege that CPS cut off contact with B.B. because she rejected a school
referral she believed was inappropriate for C.B. Id. ¶ 115(e)(iv). Additionally, after

providing a detailed history of B.B.’s interactions with CPS and its employees,
Plaintiffs assert that Defendants responded to B.B.’s advocacy by disenrolling C.B.
from CPS, id. ¶ 132, and retaliated against her “because they were irritated with
B.B.’s complaints about racial discrimination at Cove and about her criticisms of
educational programs.” Id. ¶¶ 127, 152. Based on Plaintiffs’ assertion of suspicious
timing and multiple references to a retaliatory motive, the Court finds that Plaintiffs
have done enough at the pleadings stage with respect to causation.

Because Plaintiffs have properly alleged all three elements of Section 504
retaliation, the Court denies Defendants’ Motion to Dismiss Count IV.
V. ISSRA Claim (Count V)

In Count V, Plaintiffs allege that Defendants violated the Illinois School
Student Records Act (ISSRA), 105 ILCS 10/1 et seq. by failing to provide Plaintiffs
with a full and complete copy of C.B.’s student records. SAC ¶ 163. Defendants move
to dismiss this claim based solely on the assumption that the Court will also dismiss
all of Plaintiffs’ federal claims. See Mot. Dismiss at 15. Defendants reason that
because all of Plaintiffs’ federal claims fail, the Court must relinquish supplemental
jurisdiction over Plaintiffs’ ISSRA state law claim. /d. (citing 28 U.S.C. § 1367).
The Court has not dismissed all of Plaintiffs’ federal claims, so it retains
supplemental jurisdiction over Plaintiffs’ ISSRA state law claim. See 28 U.S.C.
§ 1367(a). Accordingly, the Court denies Defendants’ Motion to Dismiss Count V.
Conclusion
For the foregoing reasons, Defendants’ Motion to Dismiss is granted in part
and denied in part. Defendants’ Motion to Dismiss Counts I, IJ, IV, and V is denied.
Defendants’ Motion to Dismiss Count III is granted, and Count III is dismissed with
prejudice because any amendment would be futile. See Heng v. Heavner, Beyers &
Mihlar, LLC, 849 F.3d 348, 354 (7th Cir. 2017). Defendants shall answer the SAC on
or before September 16, 2022.

Dated: August 26, 2022

United States DK trict
Franklin U. Valderrama

42

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10147421. Public record. Not legal advice.