Split panel rules against Chicago school district in suit over tuition reimbursement request

By Jonathan Bilyk | Jan 7, 2014

A Chicago school district may need to foot the bill for the private education of a teen diagnosed with an array of social and emotional disorders after an appeals panel last month determined not enough was done to provide the girl with an “appropriate free education" as required by law.

The split decision of the First District Appellate Court reverses a lower court ruling, which upheld an administrative decision of the Illinois State Board of Education denying the teen’s father reimbursement for tuition he paid after enrolling his daughter in a now-closed private boarding school for troubled youth in Maine.

In an opinion issued Dec. 31, the majority of the appeals panel reversed Cook County Circuit Court Judge Mary L. Mikva's ruling that favored the City of Chicago School District No. 229 and the board, remanding the matter for "a determination of the appropriate amount of reimbursement."

Justice Robert E. Gordon authored the majority opinion. Justice Bertina E. Lampkin concurred and Justice Jesse Reyes dissented.

The panel's majority ruling focused on the troubled life of a young woman, now 24, identified as Jenna R. P. in court documents.

Jenna, according to the opinion, was diagnosed in her early teens with a number of social and emotional disorders stemming from childhood experiences that included sexual abuse by someone outside her family and the “acrimonious” divorce of her parents, who had adopted her at birth.

Educated in private school through elementary and middle school, Jenna’s grades began to deteriorate in eighth grade, during which time she began receiving counseling.

She then attended Lane Technical High School in Chicago.

From 2004 to 2006, the panel notes that Jenna's academic performance suffered greatly, as she was truant for hundreds of days of school, abused drugs, openly discussed suicide and even ran away for a month before her father, with the aid of a private investigator, relocated her.

She was hospitalized for psychiatric care on at least two occasions, and the school district, acting under the guidance of federal law and regulations, created an Individualized Education Plan (IEP) for her, all to no avail.

In 2006, Jenna’s father, identified in the opinion as E. Scott P., enrolled her in the Elan School in Portland, Maine. She remained there until 2009, and her academic performance improved markedly while at the private boarding school, which closed in 2011.

During her time at Elan, Scott claims he and officials with Chicago Public Schools discussed Jenna’s status, but never reached an agreement, for various reasons, on how to proceed.

Scott wanted the school district to reimburse him for his daughter's tuition at Elan, arguing that a requirement in the federal Individuals with Disabilities Education Act (IDEA) required it to provide his daughter with a “free, appropriate public education.”

The dispute continued until 2010, when a hearing officer for the board denied Scott's request for reimbursement. The officer determined that although the district had denied Jenna a free appropriate public education, Scott had erred by failing to show Jenna's placement in Elan was appropriate and "in the least restrictive environment."

The hearing officer, according to the panel's opinion, found the district could have provided his daughter with an appropriate education and the best course of action would have been to place Jenna in a “self-contained instructional classroom at Lane Tech.”

Contesting the board's finding, Scott then filed suit against the school district and board. The circuit court affirmed the board's decision, spurring Scott to appeal.

Gordon and Lampkin disagreed with the lower court’s ruling, saying that the hearing officer was wrong and that law allows for public payment of private tuition in certain cases, such as Jenna’s.

In their ruling, the two justices chided school officials for essentially dragging their feet on a request from Jenna’s father to meet to adjust Jenna's IEP after she ran away from home.

Saying that hearing officers must evaluate the IEP as it existed, they further criticized officials for attempting to substitute a “hypothetical IEP” for their own inaction, for the purposes of comparison to the decision of Jenna’s father to place her at Elan.

The justices noted that in past similar cases, courts have held “that, when a school district fails to provide a child with an adequate plan, the court is unable to determine whether the private placement is the least restrictive alternative because, at that moment, it is ‘the only alternative.’”

In his dissenting opinion, however, Reyes wrote that his colleagues misconstrued the hearing officer’s findings, saying that Scott did not present enough proof to demonstrate he had given the district enough time to review Jenna’s placement at Elan.

“The hearing officer could reasonably conclude the services Elan offered were those of a kind which might be preferred by parents generally, but not warranting reimbursement under IDEA in this case,” Reyes wrote.

He also argued that the majority did not treat both sides fairly in its opinion, saying that Gordon and Lampkin only applied a rule limiting retrospective testimony to the defendants, but did not consider whether Jenna’s father acted unreasonably.

Attorney Eric Palles represented the plaintiff in arguments before the appeals panel and Lee Ann Lowder argued on behalf of the Chicago Board of Education.

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