United States District Court, N.D. Indiana, Fort Wayne Division
EDWARD S. AND VIRGINIA S., PARENTS AND NEXT OF FRIENDS OF T.S., Plaintiffs,
WEST NOBLE SCHOOL CORPORATION, Defendant.
OPINION and ORDER
ROBERT L. MILLER, Jr., District Judge.
This matter is before the court on cross motions for summary judgment filed by plaintiffs Edward S. and Virginia S. and defendant West Noble School Corporation. Edward and Virginia also filed a motion to strike a portion of an exhibit West Noble submitted with its summary judgment motion.
Edward and Virginia are the grandparents and legal guardians of T.S., a high school aged student with dyslexia and attention deficit disorder. Pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400-1450, in conjunction with Indiana regulations, 511 Ind. Admin. Code 7-32 through 7-48, referred to as Article Seven, students like T.S., who are deemed eligible for special education and related services, are entitled to a free appropriate public education, 511 Ind. Admin. Code 7-33-2(a), and the school creates an individualized education program for the student. 511 Ind. Admin. Code 7-42-6(a).
Before the 2011-2012 school year, T.S. and her family lived within the Rensselaer School Corporation, and T.S. attended the local public school. In January 2012, Rensselaer placed T.S. at the Kildonan School in Amenia, New York for the rest of the 2011-2012 school year. The Kildonan School is a residential school that specializes in educating students with dyslexia. Rensselaer then determined that T.S.'s placement at the Kildonan School was appropriate for the 2012-2013 school year. In June 2012, the family moved into the West Noble School Corporation and enrolled T.S. in the school system. That summer, the family and West Noble discussed the appropriate placement for T.S. for the 2012-2013 school year. Edward and Virginia expressed their desire for T.S. to remain at the Kildonan School, but cooperated with West Noble's assessment of T.S. The school reviewed T.S.'s records and conducted its own evaluations. On August 14, 2012, the parties met to discuss West Noble's proposed individualized education program for T.S. during the 2012-2013 school year. West Noble concluded that it could provide T.S. with an appropriate education at West Noble High School, that the Kildonan School was overly restrictive, that T.S. didn't want to go to the Kildonan School, and that placement at the Kildonan School wasn't appropriate because T.S. had issues with abandonment. Edward and Virginia expressed their disagreement with the proposed individualized education program.
West Noble formally sent the family a written copy of the proposed individualized education program for the 2012-2013 school year by email - received on August 16, 2012 - and certified mail - received on August 17, 2012. On August 23, 2012, the family filed a pro se request for a due process hearing with the Indiana Department of Education to challenge the individualized education program. Dr. James Jacobs was assigned as the Independent Hearing Officer who would preside over the due process hearing. An attorney filed her appearance on behalf of the family, and on August 29, 2012, the family moved to withdraw the due process hearing request. The due process hearing request was dismissed without prejudice. Counsel for the family contacted counsel for West Noble and requested mediation or a meeting with the school's special education director. The parties met on September 4 by phone, but were unable to agree on the appropriate individualized education program for T.S.
Edward and Virginia filed an emergency motion for stay-put and a second request for a due process hearing with the Indiana Department of Education on September 5, 2012. Dr. Jacobs again was assigned as the hearing officer to preside over the due process hearing. On September 7, the hearing officer granted West Noble's request to respond to the stay-put motion and held, in the meantime, that the Kildonan School was the proper stay-put placement. On September 13, after receiving the school's response, the hearing officer reversed his initial decision and held that the proper stay-put placement was West Noble High School. The hearing officer denied the family's request to reply to West Noble's response and the family's subsequent motion to reconsider the stay-put decision. The family then sought review of the stay-put placement in federal court, commencing this suit.
In the meantime, the hearing officer denied the family's request to stay the due process hearing proceedings and scheduled a prehearing conference on October 16, 2012. During the prehearing conference, the hearing officer instructed the parties not to record the prehearing conference. The family's counsel acknowledged the hearing officer's instruction, expressed her disagreement, and indicated that she would record the prehearing conference regardless of the hearing officer's directive. The hearing officer issued an order, Order on Prehearing Conference and Notice of Second Prehearing Conference, that summarized the prehearing conference, stated that the order was the record of the prehearing conference, ordered that the audio recording wasn't to be introduced into the record, warned that any attempt to introduce the audio recording into the record would be subject to sanctions up to dismissal with prejudice, and ordered neither party to make an audio recording of the next prehearing conference.
A second prehearing conference was held on October 26, 2012, at the conclusion of which the family's counsel disclosed that she had recorded the prehearing conference. The hearing officer reiterated his prior decision that recordings of the prehearing conferences aren't a part of the official record and directed counsel not to disseminate copies of the recording. That same day, the family filed a motion to recuse that included the recording of the first prehearing conference as an exhibit. The motion to recuse wasn't mentioned at the hearing, and the hearing officer later denied the motion. The hearing officer issued an Order on Prehearing Conference, Order Granting Parties an Extension of Time and Notice of Hearing that summarized the second prehearing conference and didn't mention the audio recording. The family then filed a motion to put the second prehearing conference on record and attached the recording as an exhibit. West Noble responded to the family's motion and emphasized the family's continued disregard of the hearing officer's orders. The hearing officer then issued an order that dismissed the due process hearing with prejudice. The order stated that the family "purposefully, repeatedly, explicitly, and intentionally defied [the hearing officer's] orders on multiple occasions, " the family was warned that continued disregard of the hearing officer's instructions would provide cause to dismiss the due process hearing with prejudice, the family "repeatedly failed to heed such warning, " and the family's counsel engaged in a "continued and repetitive display of insolent and belligerent behavior coupled with continued and repetitive defiance of the authority of [the hearing officer] and dignity of this proceeding [that] has surpassed even the most stringent definition of contempt." The family amended their complaint to include the dismissal of the due process hearing request.
II. MOTION TO STRIKE
Edward and Virginia move to strike pages 13 through 29 of exhibit G that West Noble filed in support of its motion for summary judgment. The family contends that the pages contain a purported individualized education program that wasn't developed in accordance with the IDEA or Article Seven, the pages contain hearsay, and the pages aren't relevant. Exhibit G begins with a declaration of West Noble's counsel that the true and correct copies of correspondence contained in the remainder of exhibit G were sent or received in his capacity as counsel for West Noble. The subsequent pages document the correspondence between West Noble's counsel and the family's counsel from August 29, 2012 through September 5, 2012.
The family seeks to strike pages 13 through 29. Pages 12 and 13 contain a letter from West Noble's counsel to the family's counsel dated September 5, 2012, and pages 14 through 29 contain the letter's attachment. West Noble contends that the family cites no authority for their argument that a party should parse individual documents and present the court with incomplete exhibits because only certain pages are cited. West Noble argues that the pages are sufficiently authenticated by counsel's declaration, the pages aren't hearsay because the purpose of the exhibit is to establish that West Noble sent the letter and its attachment to the family on or about September 5, 2012, and the letter and its attachment are relevant because West Noble refers to the letter in its summary judgment brief. The court agrees. The September 5 letter and its attachment are authenticated, FED. R. EVID. 901(b)(1), not offered for the truth of the matter asserted, FED. R. EVID. 801(c), and relevant, FED. R. EVID. 401. The court denies the motion to strike.
III. SUMMARY JUDGMENT
The parties filed cross motions for summary judgment on the hearing officer's dismissal of the due process hearing and the stay-put placement decision.
A. Standard of Review
The "standard of review in IDEA summary judgment cases differs from the norm." M.B. v. Hamilton Se. Sch. , 668 F.3d 851, 859 (7th Cir. 2011). The court reviews the administrative record, so the court's decision isn't based on whether genuine issues of material fact exist, but based on the preponderance of the evidence. Todd v. Duneland Sch. Corp. , 299 F.3d 899, 904 (7th Cir. 2002). The court "give[s] due weight' to the factual determinations of administrative tribunals, " and reviews the decision for clear error. M.B. v. Hamilton Se. Sch. , 668 F.3d at 860. The court can set aside the decision only if the court is strongly convinced that the administrative decision is erroneous. Alex R. v. Forrestville Valley Cmty. Unit Sch. Dist. No. 221 , 375 F.3d 603, 612 (7th Cir. 2004). The court gives no deference to issues of law in the administrative decision. Id. at 611. The party challenging the administrative decision bears the burden of proof. M.B. v. Hamilton Se. Sch. , 668 F.3d at 860.
B. Dismissal with Prejudice
Exhaustion of Administrative ...