C.B. v. Board of Education of City of Chicago, District 299C.B. v. Board of Education of City of Chicago, District 299
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),
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
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
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
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
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
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
The IDEA further safeguards qualifying students by enabling dissatisfied students or parents to participate in an administrative hearing and judicial process.
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
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
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,
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
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
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)).
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
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
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
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
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
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
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 thePlaintiffs 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
The law is less clear, however, on whether Plaintiffs may be able to obtain damages through
In light of the tension in the law on whether an
d. First Amendment Retaliation
In addition to their
Defendants contend that Plaintiffs have failed to state a claim for
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
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
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
Defendants urge the Court to dismiss the
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’
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)Weyrick, a case cited by Defendants, the court declined to dismiss a plaintiffs claims with regard to his secondary education as untimely because the court found there may be a continuing violation: ”
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
Defendants posit that Plaintiffs have failed to sufficiently allege a claim for violation of the
Because the Court has already held that Plaintiffs have plausibly alleged an
Contrary to Defendants’ argument, see Mot. Dismiss at 10, Plaintiffs direct the Court to cases involving
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]’
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
The
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
Consistent with the holdings in B.H. and Tammy S., several courts have found that a
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
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’
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
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).
”
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
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,
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
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
V. ISSRA Claim (Count V)
In Count V, Plaintiffs allege that Defendants violated the
The Court has not dismissed all of Plaintiffs’ federal claims, so it retains supplemental jurisdiction over Plaintiffs’ ISSRA state law claim. See
Conclusion
For the foregoing reasons, Defendants’ Motion to Dismiss is granted in part and denied in part. Defendants’ Motion to Dismiss Counts I, II, 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
Franklin U. Valderrama
United States District Judge