Citations
- 235 F. Supp. 3d 960
Full opinion text
AMENDED MEMORANDUM OPINION AND ORDER
Thomas M. Durkin, United States District Judge
By minute order dated September 30, 2016 . (R. 81), the Court denied the parties’ pending cross-motions for summary judgment ,(R- 49, 51), stating that a written opinion would follow. The Court now sets forth the reasons for its September 30, 2016 order. .
TABLE OF CONTENTS
BACKGROUND
A. Introduction
B. The First Lawsuit
C. Meetings To Establish John’s Educational Program For Posh-Senior Year And Subsequent Settlement Of The First Lawsuit
D. Post-Settlément Disputes
1. Orchard Academy Aides And Supports For John’s Classes At Oákton Community College
2. Defendant’s Termination Of Orchard Placement And Disenrollment From School For Nonattendance
3. PACE’s Denial Of John’s Application And His Enrollment In ELSA
E. The Present Lawsuit
DISCUSSION
I. Subject Matter Jurisdiction
A. Jurisdiction Based On Breach Of An Agreement To Settle A Federal Claim
B. Federal Question Jurisdiction Based On The IDEA
C. Federal Question Jurisdiction Based On An Embedded Issue Of Federal Law
D. Supplemental Jurisdiction
II. Summary Judgment
A. Standard of Review
B. State Law Breach Of Contract Claims
1. Whether Administrative Exhaustion Applies
2. Whether Defendant Breached The Settlement Agreement
a. Orchard Aides And Supports For Community College Classes
b. PACE/ELSA Program
(i) Anticipatory Breach theory
(ii) Material Breach Doctrine
(iii) Supplying The Missing Contractual Term On Which The Parties Failed To Agree
C. Federal IDEA Claims
1. Whether Plaintiffs Were Required To Exhaust Their Administrative-Remedies
a. Waiver
b. Futility Or Inadequacy Of Ex- ‘ haustion
2. Whether Defendant Denied John A FAPE
D. Equitable Issues: Failure To Cooperate, Estoppel, and Unclean Hands
CONCLUSION
BACKGROUND
A. Introduction
This ease concerns the high school education of John Miksis. John is currently twenty-six years old, but, when the events at issue began, he was a twelve-year old child with Down Syndrome who was about to enter the ninth grade. Defendant Ev-anston Township High School District # 202 is a public educational agency that receives federal funding. As such, Defendant is subject to federal education laws and regulations, including the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq., as amended by the Individuals with Disabilities Education Improvement Act (“IDEIA”), P.L. 108-446, 118 Stat. 2647(Dec. 3, 2004) (hereinafter (“the IDEA” or “the Act”)).
The IDEA is a federal statutory scheme governing the education of disabled students like John, which seeks “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.” 20 U.S.C. § 1400(d)(1)(A). The term “free appropriate public education,” or “FAPE,” is defined in the Act as “special education and related services that—(A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of [the Act]”20 U.S.C. § 1401(9).
B. The First Lawsuit
In the spring of 2004, John’s parents, Michael and Christine Miksis, were in discussions with Defendant about the individualized education program, or “IEP,” for John’s up-oming freshman year at Evans-ton Township High School (“ETHS”). The parties were unable to agree about what John’s IEP should include. Therefore, John’s parents filed an administrative complaint and requested an impartial due process hearing to resolve the issue, The hearing was held over the course of. several days in the fall of 2004. At the conclusion of the hearing, the hearing officer issued a written decision finding against John and his parents. Dissatisfied with that result, John’s parents exercised their right to appeal the hearing officer’s decision to a federal court in this district. John’s parents’ lawsuit was assigned to Judge Holderman (05-cv-6720), who, shortly after the case was filed, issued an order granting Plaintiffs a preliminary injunction to require Defendant to provide on a temporary basis while the case was being litigated the educational supports and services that John’s parents believed were necessary to comply with the IDEA. See John M. ex rel. Christine M. v. Bd. of Educ. of Evanston Twp. High Sch. Dist. 202, 450 F.Supp.2d 880 (N.D. Ill. Aug. 18, 2006). Defendant, however, filed an interlocutory appeal from Judge Holderman’s preliminary injunction order, and ultimately was successful in getting that order reversed for further consideration. See John M. v. Bd. of Educ. of Evanston Twp. High Sch. Dist. 202, 502 F.3d 708 (7th Cir. 2007). The Seventh Circuit issued a ruling in favor of Defendant on September 17, 2007, and a mandate remanding the case to Judge Holderman for further proceedings on October 9, 2007.
By the time the Seventh Circuit remanded the lawsuit to the district court, John was in his third year of high school. Thereafter, another year passed while the parties attempted to settle the case. In the fall of John’s senior year, Defendant filed a motion to dismiss the federal lawsuit, arguing that, because John was about to finish his senior year, the lawsuit was moot. John’s parents contested that motion, arguing that the case was not moot because John’s rights under the IDEA did not terminate with the end of his senior year of high school. Instead, John was entitled to special educational services from Defendant until he graduated, or through the day before he turned twenty-two, whichever came first. See 20 U.S.C. § 1412(a)(1)(A); 34 C.F.R. § 300.101(a). As all parties to the lawsuit conceded, John would not actually be graduating at the end of his senior year of high school. John’s parents argued that, because Defendant would still be required to provide John with educational services beyond his senior year of high school, the substantive issues in the lawsuit regarding the special educational services and aides to which John was entitled were not moot. See John M., 05-cv-6720, Dkt. # 98 at 9.
In a ruling issued on March 16, 2009, Judge Holderman rejected Plaintiffs’ arguments that the underlying merits issues about the educational services to which John was entitled presented a live controversy. According to Judge Holderman, the question of what educational services John was entitled to during his first four years of high school was different than the same question asked about John’s IDEA-eligible years after his senior year of high school. The federal lawsuit filed by John’s parents, Judge Holderman concluded, dealt only with the former question, which all parties agreed no longer needed to be decided:
Plaintiffs do not articulate how or why John’s transition program[] should be considered analogous to John’s academic program. It appears to the court that these programs are distinct, as there is no indication that either party intends the transition program to include enrollment within the general curriculum. The fact that Evanston School District will be providing these services is not enough by itself to demonstrate that John’s past IEPs remain relevant at this point in John’s education.
John M. v. Bd. of Educ. of Evanston Twp. High Sch. Dist. 202, 2009 WL 691276, at *4 (N.D. Ill. Mar. 16, 2009) (footnote omitted). Nevertheless, Judge Holderman agreed with Plaintiffs’ additional arguments that the first lawsuit was not entirely moot, because, in addition to seeking a change in Defendant’s proposed IEP for John, Plaintiffs also were seeking compensatory education for Defendant’s past violations of the “stay-put” IEP and their attorneys’ fees. Plaintiffs’ claims to recover both of these items of damages, Judge Holderman; held, were still viable. Id. at *5-6.
C. Meetings To Establish John’s Educational Program For PosttSenior Year And Subsequent Settlement Of The First Lawsuit
Around the time the parties were addressing the mootness issue, in the first lawsuit, they also were meeting outside the litigation to discuss John’s placement after the end of his senior year and during the final years of his. IDEA eligibility. These discussions occurred during two meetings in the spring of 2009. The first meeting took place on March 27, and the second meeting took place on May 15. In both instances, the meeting was led by Bob Gottlieb, who at the time was Defendant’s Director of Special Education. Believing they had reached an agreement regarding John’s educational placement during these meetings, the parties subsequently entered into a settlement of the first lawsuit. The Settlement Agreement provided that Plaintiffs would release Defendant from their claims in the lawsuit, and, in return, Defendant agreed to provide certain special educational services during John’s first post-senior year of IDEA-eligibility (2009— 2010 academic year) as follows:
1. As discussed during John’s Individual Education Plan (“IEP”) meeting held by the parties on May 15, 2009, the parties agree that John will attend Orchard Academy ... in -its intensive individualized transition program beginning August 25, 2009 at the District’s expense. The parties further agree that Orchard Academy will make its own individualized assessments of John’s educational, psychological, physical and life skills in order to recommend to the IEP team what John’s educational goals are and to recommend to the IEP team the services, aids and therapies that John will require to accomplish those goals and move toward independent living. During the period of Orchard Academy’s individual assessment of John, John will receive those aid[e]s,, including but not limited to speech and occupational therapy, at the same level he received during the 2008-2009 school year (with the exception of Adapted Physical Education, which will not be provided). Within 30 days after Orchard Academy completes its assessment, the parties will meet in an IEP meeting to confirm that the assessment and educational and other goals established by Orchard Academy are consistent with John’s transition goals discussed in the parties’ May 15, 2009 IEP meeting and to finalize John’s IEP for 2009-2010.
R. 49-3 at 2 (Settlement Agreement, ¶ 1). The Agreement goes on to address John’s final IDEA-eligible secondary school years (2010-2011 academic year; 2011-2012 academic year through October 14, 2012) as follows:
-2. Beginning in the Fall of 2010, it is the parties’ intent that John will be enrolled in the transition education program at the Professional Assistance Center for Education, referred to as the PACE program at National Louis University (the “PACE program”), ... at the District’s expense, with John continuing in the PACE program through the day before- his 22nd birthday; however, it is agreed that John’s enrollment in the PACE program, is contingent upon the PACE program’s acceptance of John into its program. If John is.not accepted into the PACE program, if he . is terminated from the PACE program, or if the PACE program is terminated, the parties agree to meet to discuss and consider other appropriate placement options for John’s post-secondary transition education. However, all other provisions of this Agreement shall remain in effect regardless of John’s acceptance, non-acceptance or termination from or of the Orchard Academy, or PACE programs.
Id at 7-8 (Settlement Agreement, ¶ 2).
The Agreement concludes with an ac-knowledgement that it “is a release and settlement of disputed claims, as provided for herein[ ] ... entered into solely as and for a compromise settlement of such disputed claims.” Id. at 5 (Settlement Agreement, ¶ 9). It • was signed on July 11, 2009 by each of John’s parents and by John, and on July 17, 2009 by Eric Witherspoon, Superintendent of Evanston Township High School District # 202. Id.
D. Post-Settlement Disputes
On July 1, 2009, Maria Smith replaced Gottlieb as Defendant’s Director of Special Education. R. 52-5 at 2 (Smith- Declaration). Smith did not participate in either of the two meetings held in the - spring of 2009 or in the negotiation or execution of the Settlement Agreement. See R. 49-7 at 18-21 (Smith Deposition).- Shortly ■ after Smith took over and at the beginning-of John’s first post-senior secondary school year, disputes arose over the nature and scope of the educational support and services to which Defendant-had agreed.
1. Orchard Academy Aides And Supports For John’s Classes At Oakton Community College
The first dispute centered on John’s enrollment in class.es at Oakton Community College. John began his placement .at Orchard, Academy on August 31, 2009. A few weeks prior to- that date, Christine Miksis had emailed Tim Bobrowski, Director of Orchard.Acad.emy, indicating that a settlement had been reached in the lawsuit and that she had enrolled John in classes at Oakton. From approximately August 31 through September 9, John attended Orchard Academy, and the community college classes in which his parents had enrolled him. Orchard provided John with transportation to and from his classes and a one-on-one aide to support them. Moreover, a special education assistant at Orchard, Sarissa Hahn, sent John’s parents an email with an attached document titled “Orchard Academy Responsibilities with regard to John Miksis attending Oakton Community College.” R. 49-5. The stated purpose of the document was “to provide] a clear set of our expectations for John, your family, and ourselves[ ] ... to be sure we are all on the same.page in terms of supports for John.” Id. at 1. The document states, among other things, that Orchard staff would “provide supports to John to access his classroom at Oakton College,” would “attend class, if professor allows,” and would “assist John to access approximately 4 hours of tutoring support at Oakton.” Id. at 2.
On or about September 9, 2009, Smith had a telephone conversation with Bobrow-ski regarding John’s program at Orchard. It was then that she first learned John had been attending community college classes since the start of the school year and Orchard had been providing aides and supports for those classes. According to Bo-browski, Smith notified him “that John’s attendance at Oakton was a unilateral action by John’s parents, that the District had not agreed to and did not authorize Orchard to provide services and transportation related to Oakton courses, and that Orchard should cease providing such services and transportation to John.” R. 52-4 at 8 (Bobrowski Decl. ¶ 29). “Based on Dr. Smith’s direction, on or around September 9, 2009, Orchard discontinued providing John services related to his attendance at courses at Oakton.” Id. (Bobrowski Decl. ¶ 30). Also on September 9, Smith spoke with Christine Miksis by telephone. After the call, Christine wrote Smith an email stating the following:
I am sony you are so upset. Clearly, you were not provided with complete information.
There were many people at the meeting on May 15, 2009. There was no IEP written.
John’s goals for his future were presented at a meeting in March where several placement options were discussed. Orchard Academy did not come to that meeting; their representatives did attend the May meeting. The decisions made at-the May meeting determined what was written in the settlement agreement. The settlement agreement clearly states that John’s 2008-2009 program remains in effect until after Orchard Academy completes its assessment and an IEP meeting is held to write up a transition IEP. No one tried to pull anything over on anyone and I am sorry you feel that way.
I also do not understand why you are so adamantly opposed to John taking classes at Oakton; you have many students from ETHS who are taking classes there ... and some receive many more services than John. The Orchard Academy representative brought up the issue of the aide and your own attorney agreed that this service would be continued, with a gradual taper.
The program was clearly described by the Orchard Academy representative and it is partly described on their website (http://ww.orchardacademy.org/ curriculum/). This is the individualized program.
Again, this was all decided in front of many people. (The program that was included in John’s file may have come from another publication and I believe that program is their “standard” program).
I am sorry to hear that you have already decided what program is appropriate for John without ever having met him or us. However, we have paid for John to take the classes at Oakton and you cannot bar him from taking classes there. He will continue his classes as he is entitled to continue his education like any other student. The classes are necessary for him to meet his vocational and independence goals. At this time it is probably best to leave all further discussions to the attorneys as it seems that we are clearly at an impasse. I have informed Orchard Academy that we will continue sending John to his classes at Oakton. If you do not authorize them to continue the program as agreed to in the settlement plan, we cannot send John there until there is a definitive resolution. This will hold up the completion of the assessments.
R. 49-8 at 1.
That same day, Defendant’s attorney, Patricia Whitten, sent Plaintiffs’ then-attorney, Michael Graham, a letter setting forth Defendant’s position regarding the community college issue:
Mrs. Miksis informed OA [Orchard Academy] that John would be attending these classes shortly before John began attending the program at OA. She told them that the District was aware of this and that they must provide transportation and support in accordance with the “stay put” IEP from 8th grade, which she said was still in effect. As you and I have already agreed, said IEP is no longer in effect. Due to your client’s misrepresentations to OA staff, OA mistakenly began providing transportation and a 1:1 aide for John for two Oakton classes which started last week (John’s first week attending the OA program) .... The settlement agreement between the parties does not contain any agreement regarding John’s attendance at courses at Oakton Community College, nor does the current transition program IEP provide for this. No one on the IEP team other than the parents thought that it would be appropriate for John to take courses at Oakton at this point ... and you stated at the March 27, 2009 IEP meeting that the parents had decided that attending Oakton was not appropriate for John at this time. The parents unilaterally registered John at Oakton without consulting anyone from the District or OA, which we feel is an attempt to usurp the OA transition program. OA’s completion of John’s assessments has been delayed due to his attendance at Oakton and resulting unavailability.
R. 52-6 at 14.
Thereafter, it appears the parties reached a truce of sorts, with John’s parents providing transportation and tutoring for John’s community college classes at their own expense while John also continued to participate in Orchard’s program when he was not attending academic classes at the community college. John’s parents sought to preserve their rights under the IDEA and the Settlement Agreement by sending Smith a letter, stating, among other things, that they “may seek reimbursement” for the costs they incur to provide the aides and supports terminated by Smith. Meanwhile, Smith tolerated John’s attendance at Oakton classes and consequent absences from the Orchard program in deference to his parents’ preferences. In addition, the parties continued to meet and communicate with each other over Orchard’s on-going assessments of , John and proposed adjustments to be made to his 2009-2010 IEP based on those assessments, as. both parties acknowledged had been agreed upon at the May 15,2009 meeting.
2. Dependant’s Termination Op Orchard Placement And Disenrollment From School For NonAttendance
In the early part of 2010, John’s attendance at Orchard declined even further and Smith apparently came to the decision that this was not acceptable. Rather than call a meeting to communicate her decision and discuss whether mutual resolution of the problem was possible, Smith sent John’s parents a tetter. The tetter was sent by regular mail on or about March 5, 2010, and stated that John’s placement at Orchard would be terminated effective March 15 based on his nonattendance:
[Sjince the meeting [on January 15], John’s attendance at the Orchard Academy program has declined even more, and as you know this semester he is attending only once a week, on Fridays. Under these circumstances, you are preventing District 202 from providing a transition program to John this year, and the District has no choice but to terminate the placement based on your non-cooperation. Clearly John is not able to gain benefit from this or any program by attending once a week. Please be advised that John’s program at Orchard Academy will end at the end of the day on March 15,. 2010. The enclosed IEP, developed over three IEP meetings, is being offered to John based on his full time attendance in a transition program. If you choose to accept the placement at Orchard Academy and want to send John to the program full-time, please contact me, and I will then reinstate his program at OA. If you prefer, we could have another IEP meeting as soon as possible to review the program and facility options yet again. Please let me or your attorney know how you wish to proceed. In any event, we should schedule a meeting in the near future to discuss John’s placement for 2010-11 pursuant to the settlement agreement.
R. 52-6 at 19.
An identical tetter also was sent by Whittén to Plaintiffs’ new attorney, Stephen Glick. See R. 52-6 at 22. Glick responded to a telephone voice message conveying the same information, apparently left by another -of Defendant’s attorneys (John Relias), with an email dated March 15,2010 (the effective date of John’s termination per'the March 5 tetter):
John:
I received your voice message (left Friday) today[ ] ... that, the district is going to terminate John’s current placement because he is not attending except on Friday and that the district does not want to continue to pay for a placement that is not being used. My position on that is that this would be an illegal act. Under the law, the district is obligated to offer a FAPE. This placement is in place via a written settlement agreement. I am not aware of any authority, either via the settlement agreement or via federal law that authorizes the district to unilaterally terminate this placement (or any placement) without a properly noticed IEP meeting. Also, I think this needs to be discussed/considered by the IEP team. I am certain that Patti [Whitten] has informed you that my clients do not believe that OA [Orchard Academy] is appropriate for their son. To that end, I will talk to my clients. However, I think we need to discuss other options for John.
R. 52-6 at 26.
The record does not contain any information about further communication that might have taken place between the parties or their representatives after the March 15, 2010 email message from Glick to Relias. Moreover, although Smith’s March 5, 2010 letter only references terminating John’s placement at Orchard Academy, it is undisputed that, on March 15, 2010, Defendant also terminated John’s enrollment in the school district. R. 61 at 22 (Def. Add’l SOF, ¶ 1) (“John was a student at ETHS until March 15, 2009, when John’s placement was terminated for nonattendance and his parent’s non-cooperation, and he was disenrolled as a student of ETHS.”) (emphasis added). Despite the fact that both Smith’s March 5 letter and Glick’s March 15 email expressed the need to have further- discussions, no meeting was ever held. Smith and Christine Miksis both testified that-they did not pursue a meeting with each other because,' among other things, John by then had been disen-rolled from "the school district;
3 PACE’s Denial Op John’s Application And His Enrollment In ELSA'
Per the Settlement Agreement, John applied to attend the PACE program sometime in October 2009, R. 52 at 19 (Def. SOF, ¶ 71). PACE denied John’s application for admission on or about February 20, 2010, approximately three weeks before John was disenrolled from the school district. Plaintiffs allege that Defendant played a role in PACE’s rejection of John’s application. Defendant denies that .allegation.
John’s parents did not notify Smith about PACE’s denial of John’s application, but Smith admitted she learned about it at some point after John’s enrollment in the school district had terminated on March 15, 2010. R. 49-7 at 62. Smith testified that she did not call a meeting to discuss alternative placements after she learned about PACE’s rejection of John’s application because she “hadn’t even been notified that he had applied.” R. 49-7 at 62. She also did not call a meeting because, by the time she learned that John’s application had been denied, he was already disenrolled from the school district and she believed Defendant had no further obligations to him going forward unless and until he sought reenrollment. Id. at 63-66. Christine Mik-sis testified that she did not personally contact Defendant to discuss alternative placements after learning about PACE’s rejection of John’s application for a number of reasons. First, she testified that she already had discussed alternative placements with Smith after Smith informed her at meetings that took place before she learned of PACE’s rejection of John’s application that Defendant would no longer support a PACE placement, and those discussions had gone nowhere (see footnote 17). Second, Christine testified that Smith terminated John’s enrollment in the school district around the same time as Christine learned of PACE’s rejection, and, once that happened there was no point in asking for a meeting. And third, Christine testified that Smith had essentially cut off communication with Plaintiffs in this time period, as shown by the fact that she refused to take a call from Christine about an injury John had received at Orchard on the same day as Plaintiffs received the notice about PACE’s rejection. See R. 49-4 at 104-14. In addition, Christine testified that her attorney’s statement in his March 15 email that “we need to discuss other options” was the equivalent of a request for a meeting to which Defendant never responded.
In May 2010, John’s parents applied for John to attend the Elmhurst Learning and Success Academy (“ELSA”), believing that program (although apparently not a residential program like PACE) was the most comparable program to PACE in the area. Christine testified that her attorney informed Defendant’s attorney about John’s application to ELSA. R. 49-4 at 115. Smith denies receiving the information, however. John was accepted by ELSA and was still attending that program at the time this lawsuit was filed. Smith testified that she did not' learn of John’s attendance at ELSA until around the time Defendant was contacted by Plaintiffs’ attorney seeking reimbursement for the program just prior to the filing of this lawsuit.
E. The Present Lawsuit
On October 9, 2012, Plaintiffs filed a “Complaint for Breach of Contract” against Defendant in the Circuit Court of Cook County, Illinois. The complaint alleges that, in September 2009, Defendant made a number of “placement/transition planning decisions,” which “did not comply with either the express terms” of the Settlement Agreement or the “transition plan” the parties had agreed to in the meetings held in the spring of 2009. R. 1-1 at 3. The complaint also alleges that Plaintiffs “sought assistance” from Defendant for an alternative program to PACE, but that Defendant “refused to find an appropriate program” and then “refused to support” John’s placement in the ELSA program. Id. at 4. According to the complaint, John’s parents “have sustained financial loss as a result of the defendant’s breach of the [Settlement [A]greement” in that “[t]hey have paid for tuition at OCC [Oak-ton Community College] and ELSA,” “[t]hey have had to pay for and/or provide transportation,” and “[t]hey have had to pay for other reimbursable expenses.” Id. Accordingly,' the complaint seeks “to enforce breach of [the] [S]ettlement [A]greement[] under the IDEA” by permitting Plaintiffs to recover for their out-of-pocket losses, as well as reasonable attorneys’ fees and costs as provided for in the Act. Id. at 4-5.
Defendant responded to the state court complaint by removing it to federal court, arguing that Plaintiffs’ breach of contract claims implicated rights under the IDEA for which federal jurisdiction was proper. Upon its removal, the case was originally assigned to Judge Guzman, who referred it to a magistrate judge for possible settlement. Settlement was unsuccessful, and, on January 14, 2013, the case was reassigned to the undersigned judge. Upon reassignment, the Court immediately raised the question of the propriety of the removal. Defendant filed a brief in support of removal jurisdiction, arguing that Plaintiffs’ claim for breach of contract arose under federal law because of “the interrelationship between the Settlement Agreement and the IDEA.” R. 26 at 2. Defendant further argued that federal question jurisdiction existed because, in order to determine whether Plaintiffs are entitled to the relief they seek, the Court must interpret and apply principles from the IDEA. Id. at 3. Plaintiffs declined to file a written response to Defendant’s jurisdictional arguments, stating orally on the record that they did not oppose Defendant’s removal petition. Relying on the arguments and citations to authority in Defendant’s removal brief, the Court found it had subject matter jurisdiction, R. 27, and the case proceeded to discovery. More than a year later, the parties filed cross-motions for summary judgment.
DISCUSSION
Plaintiffs’ motion for summary judgment argues that the evidence is undisputed that Defendant breached the terms of the Settlement Agreement and John’s agreed-to transition plan, first, by terminating the aides and supports John had been receiving from Orchard Academy, which allowed him to take academic, classes at Oakton Community College, and, second, by terminating his placement in Orchard and his enrollment in .the school district, and by refusing to pay for his placement in the ELSA program. Defendant’s cross-motion for summary judgment argues that Plaintiffs’ claims should be denied as a matter of law, first, because Plaintiffs failed to comply with the IDEA’S requirement for exhaustion of administrative remedies, and second, because John’s parents failed to cooperate with Defendant’s efforts to provide John with a FAPE. The Court addresses these summary judgment issues below, but, before doing so, the Court first must reexamine the basis for federal jurisdiction over this dispute.
I. Subject Matter Jurisdiction
“Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (internal citations omitted). Although the parties do not contest the Court’s exercise of subject matter jurisdiction over Plaintiffs’ claims, “neither the parties nor their lawyers may stipulate to jurisdiction or waive arguments that the court lacks jurisdiction.” United States v. Tittjung, 235 F.3d 330, 335 (7th Cir. 2000); see DeBartolo v. Healthsouth Corp., 569 F.3d 736, 740 (7th Cir. 2009) (“Subject-matter jurisdiction is not an issue that can be brushed aside or satisfied by agreement between, the litigants.”); Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 444 (7th Cir. 2009) (“jurisdiction cannot be conferred by consent of the parties”) (internal quotation marks and citation omitted).
The parties’ summary judgment arguments caused the Court renewed concerns about the basis for its jurisdiction over this matter. Therefore, the Court had an independent duty to look into the question. If in reexamining the jurisdictional question the Gourt were to determine that subject matter jurisdiction is lacking, the case would have to be remanded to state court. See 28 U.S.C. § 1447(c) ("If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.”). A remand would be required even if it would impose a hardship on the parties. See Hartland Lakeside Joint No. 3 Sch. Dist. v. WEA Ins. Corp., 756 F.3d 1032, 1036 (7th Cir. 2014) (“If this case is returned to state court, it must start a new .,. and more than two years will have been lost. But practical considerations never justify a federal court’s adjudication of a suit over which it lacks subject-matter jurisdiction.”).
Defendant cites to “28 U.S.C. § 1400 el seq.,” as the basis for this Court’s jurisdiction. Since the statutory reference accords federal jurisdiction over copyright and patent cases, the Court presumes Defendant intended to cite to the IDEA, which is 20 U.S.C. § 1400 et seq. While the facts .presented in the complaint appear to give rise to a potential claim that Defendant’s actions denied John a FAPE and thus violated the IDEA, the question is whether Plaintiffs have sought to recover on that claim. Their complaint is titled “Complaint for Breach of Contract” and appears to rest on alleged breaches of the Settlement Agreement. Moreover, in their summary judgment briefing, Plaintiffs also at times appear- to maintain that the only claim they are asserting is for breach of the Settlement Agreement. See, e.g. R. 49 at 2 (“This is a very simple case involving a breach of [the] [settlement] agreement by the defendant.”); see also R. 49 at 6; R. 72 at 14.
A. Jurisdiction Based On Breach Of An Agreement To Settle A Federal Claim
If the only claim Plaintiffs are making is for breach of the Settlement Agreement, the Court would not have subject matter jurisdiction. A settlement agreement is a type of contract, and it is well established that a claim for .breach of contract generally does not give rise to federal question jurisdiction even if part of the consideration for the agreement is dismissal of an earlier-federal suit alleging claims arising under federal law. See Kokkonen, 511 U.S. at 382, 114 S.Ct. 1673 (“enforcement of the settlement agreement is for state courts, unless there is some independent basis for federal jurisdiction”); McCall-Bey v. Franzen, 777 F.2d 1178, 1189-90 (7th Cir. 1985) (“there is no inherent federal jurisdiction to enforce agreements to settle federal suits”). There is an exception for when jurisdiction is preserved in the original lawsuit by the district court either “incorporatfing] the agreement’s terms into the dismissal order or expressly retaining] jurisdiction over the agreement.” T St. Dev., LLC v. Dereje & Dereje, 686 F.3d 6, 11 (D.C. Cir. 2009); see generally Jones v. Ass’n of Flight Attendants-CWA, 778 F.3d 571, 573 (7th Cir. 2015); RE/MAX Int’l, Inc. v. Realty One, Inc., 271 F.3d 633, 636 (6th Cir. 2001). But Judge Holderraan did neither of those things when he dismissed the first lawsuit. See John M., 05-CV-6720, 2005 WL 3706371, Dkt. # 108.
B. Federal Question Jurisdiction Based On The IDEA
Plaintiffs contend that, notwithstanding the principles discussed above, the IDEA confers federal court jurisdiction to enforce settlement agreements resolving an IDEA claim. Plaintiffs rely on two provisions of the IDEA, one that ap: plies to enforcement of settlement agreements. reached during the IDEA-prescribed mediation process, and one that applies to enforcement of settlement agreements reached during the IDEA-mandated “resolution” process. These statutory provisions, however, provide for jurisdiction to enforce settlement agreements, and Plaintiffs do not seek enforcement; they seek damages for breach of the Settlement Agreement. See Lara v. Lynwood Unified Sch. Dist., 2009 WL 2366454, at *3 n.4 (C.D. Cal. July 29, 2009) (“IDEA’S jurisdictional grant applies to ‘enforcement’ not ‘breach’ of settlement agreements”). Moreover, even if “enforcement” of a settlement agreement includes damages for past violations of the agreement, see Kokkonen, 511 U.S. at 378, 114 S.Ct. 1673 (referring to “[ejnforcement of [a] settlement agreement ... whether through award- of damages or decrefe of specific performance”), several courts have recognized that, according to its plain language, these statutory, provisions .confer jurisdiction on federal district courts only to enforce settlement agreements that are made in the IDEA mediation or resolution sessions. See S.T. v. Jersey City Bd. of Educ., 2016 WL 4941993 (D.N.J, Sept. 14, 2016); L.M. v. Lower Merion Sch. Dist., 2011 WL 71442, *3 (E.D. Pa. Jan. 7, 2011) (citing cases); see also H.C. ex rel. L.C. v. Colton-Pierrepont Cent. Sch. Dist., 341 Fed.Appx. 687, 690-91 (2d. Cir. 2009) (remanding to the district court to determine the existence of subject matter jurisdiction where it did not appear that the settlement agreement had been entered, into as part of either a mediation or resolution session).
The Settlement Agreement in this case was not -reached by' means - of either a mediation'or a resolution' , session, as defined under the IDEA. Defendant acknowledged as much in its jurisdictional brief filed when the case was first transferred to this Court. See R. 26 at 2 n.l. Nevertheless, Defendant argued in court that even though these provisions are not directly applicable to this case, it could be inferred from them that Congress intended federal court jurisdiction to exist for purposes of enforcing other types of IDEA settlement agreements. The Court did not address that argument at the time, but will do so now.
The Court must “begin with the fundamental principle that federal courts are courts of limited jurisdiction,” and, therefore, jurisdictional statutes cannot be construed “any broader than their language will bear.” In re Application of Cnty. Collector of Cnty. of Winnebago, Ill., 96 F.3d 890, 895 (7th Cir. 1996). The Court agrees with Defendant that there is no apparent justification for allowing federal court enforcement of IDEA settlement agreements entered into as part of either the administrative mediation or resolution processes but not other IDEA settlement agreements. But the Court is unable to find any authority to support the view that it can assert federal jurisdiction based on an implied statutory jurisdiction-conferring provision.
As one court explained, while the exercise of jurisdiction over other types of settlement agreements in IDEA cases might be “a logical extension” of the IDEA jurisdictional provisions, “it is not the role of the courts to append new provisions to statutes whenever doing so might comport with some of Congress’s goals.” Bowman v. Dist. of Columbia, 2006 WL 2221703, *2 (D.D.C. 2006) (internal quotation marks and citation omitted). “Had Congress intended that all [IDEA] settlement agreements ... be enforceable in federal court, it could have easily adopted a- provision to that effect.” Traverse Bay Area Intermediate Sch. Dist. v. Mich. Dep’t of Educ., 2007 WL 2219352, *7 (W.D. Mich. July 27, 2007) (emphasis in original), aff'd, 615 F.3d 622 (6th Cir. 2010). “The language [of § 1415(e)(2)(A)(iii) and § 1415(f)(1)(B)(i)(I)] is not ambiguous, nor would its literal application produce absurd or unjust results. Consequently, there is no reason to go beyond the application of the law as written.” Bowman, 2006 WL 2221703, at *2. Accordingly, the Court holds that the IDEA itself does not confer federal court subject matter jurisdiction over Plaintiffs’ claim for breach of the Settlement Agreement because the Settlement Agreement was not entered into as a result of either an IDEA mediation or resolution session.
C. Federal Question Jurisdiction Based On An Embedded Issue Op Federal Law
Given that the IDEA does not confer federal court jurisdiction over Plaintiffs’ breach of contract claim and that Plaintiffs have not and cannot allege that jurisdiction is properly fixed in this Court based on the diverse citizenship of the parties (28 U.S.C. § 1332), the Court must consider whether there is any other basis for it to continue to assert subject matter jurisdiction over Plaintiffs’ claims seeking recovery for breach of the Settlement Agreement. In arguing in favor of federal court jurisdiction, Defendant’s brief in support of removal jurisdiction relied.primarily on R.K., ex rel. T.K v. Hayward Unified School District, 2007 WL 2778702 (N.D. Cal. Sept. 21, 2007). See R. 26. In R.K, the court stated that it had federal jurisdiction over a claim to declare rights under an IDEA settlement agreement bécause “the purpose of the Settlement Agreement was to resolve the parties’ disputes regarding-Plaintiffs special education and related services.” Id. at *6. The court further explained that the settlement agreement in that case “incorporates terms specific to the IDEA, such as FAPE and IEP,” and that the court “would have to refer to the IDEA to determine whether the parties complied with their respective obligations under the Settlement Agreement.” Id. (citing Hansson v. Norton, 411 F.3d 231, 235 (D.C. Cir. 2005), for the proposition that, “when a settlement agreement incorporates substantive provisions of federal law such that enforcement of the agreement requires the interpretation and application of federal law,” a claim to enforce the settlement agreement arises under federal law).
In the first place, the above-quoted portion of the R.K. opinion is dicta; the court already had determined that 20 U.S.C. § 1415(f)(1)(B) conferred subject matter jurisdiction in that case because the settlement agreement in question had been entered into, as a result of an IDEA mediation session. Moreover, the jurisdictional principle alluded to by the R.K. court— often referred to as jurisdiction arising out of an “embedded” federal claim—has been clarified and limited by. the Supreme Court. Outside the area of complete preemption (which does not apply in, the IDEA context), the Seventh Circuit has noted that “the existence of a federal issue” in a complaint that relies on state law is “rarely” sufficient to allow removal of a state complaint to federal court. Hartland Lakeside Joint No. 3 Sch. Dist., 756 F.3d at 1033 (emphasis added). The Supreme Court applies a four-part test to determine whether federal jurisdiction based on an embedded question of federal law is appropriate. See Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 314, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005). The parties have not addressed the Grable test, but the Court has little difficulty concluding that it cannot be satisfied here.
D. Supplemental Jurisdiction
The only other basis for federal jurisdiction over Plaintiffs’ claim for breach of the Settlement Agreement is supplemental jurisdiction. See 28 U.S.C. § 1867(a) (in an action for which the court has federal question jurisdiction, court may also exercise jurisdiction over any state law claims that are so related to the federal claims “that they form part of the same case or controversy”). As previously noted, Plaintiffs have alleged facts that could give rise to an alternative claim for violations of the IDEA independent of their claim for breach of the Settlement Agreement.’The . question remains, however, whether they are asserting that alternative claim.
To answer that question, the Court looks to the allegations of the complaint. See In re Application of Cnty. Collector of Cnty. of Winnebago, Ill., 96 F.3d at 895 (stating the “well-pleaded complaint” rule). Plaintiffs allege: (1) that Defendant had a legal duty under the IDEA “to provide John Miksis with a free appropriate public education,” R. 1-1 at 2 (¶ 4); (2) that, in addition to the Settlement Agreement, Defendant “agreed to a ‘transition plan’ [a copy of which is attached to the complaint] to address John’s post-high school development,” id. at 3 (¶ 8); (3) that, after John started at Orchard Academy, Defendant “ignored the parents’ objections and disagreements” to Defendant’s “various placement/transition decisions,” id. (¶ 11); (4) that, in addition to not complying with the terms of the Settlement Agreement, Defendant also failed to comply with the “express terms of the ... transition plan,” id. (¶ 12); and (5) that, “[a]fter the [Settlement [AJgreement was written, the parents enrolled John at Oakton Community College to take various academic courses as per the transition plan,” id. at 4 (¶ 14) (emphasis added); see also R. 72 at 12 (arguing that “Defendant’s actions violated the law” in addition to the settlement agreement) (all caps omitted). These allegations can be construed as stating a claim under the IDEA for failure to comply with the agreed-to transition plan resulting in a denial of a FAPE. See, e.g., Sch. Bd. of Lee Cnty., Fla. v. M.M. ex. rel M.M., 348 Fed.Appx. 504, 511 (11th Cir. 2009) (allegation that a school board had breached the provisions of a settlement agreement that had resulted from an IDEA due process hearing was “also primarily a challenge relating to the provision of a FAPE”); Pedraza v. Alameda Unified Sch. Dist., 2007 WL 949603, at *4 (N.D. Cal. Mar. 27, 2007) (plaintiff alleges that the defendant’s “failure to provide the services and reimbursement agreed upon in the settlement agreement resulted in a denial of FAPE, which constitutes a violation of the IDEA”).
In sum, if Plaintiffs had decided not to invoke their federal rights, their claims would belong in state court. But it appears that Plaintiffs are proceeding with both state and federal claims (notwithstanding that Plaintiffs have on occasion argued inconsistently that this case presents only a simple breach of contract claim). Accordingly, the Court finds that it has federal question jurisdiction over Plaintiffs’ IDEA claims, and supplemental jurisdiction over Plaintiffs’ state law claims for breach of the Settlement Agreement.
II. Summary Judgment
A. Standard of Review
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Court considers the entire evidentiary record and must view all of the evidence and draw all reasonable inferences from that evidence in the light most favorable to the nonmovant. Ball v. Kotter, 723 F.3d 813, 821 (7th Cir. 2013). To defeat summary judgment, a nonmovant must produce more than “a mere scintilla of evidence” and come forward with “specific facts showing that there is a genuine issue for trial.” Harris N.A. v. Hershey, 711 F.3d 794, 798 (7th Cir. 2013). Ultimately, summary judgment is warranted only if a reasonable jury could not return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The parties purport to set forth the material undisputed facts regarding their post-settlement dispute in their Local Rule 56.1 Statements. Both sides contend that the fact statement of the other side violates the Local Rule. The Court agrees that the parties’ facts statements contain improper argument and are not in compliance with the Local Rule for several other reasons as well. Rather than strike those statements or punish either side ■■ with deemed admissions, however, the Court has chosen to consider the statements, together with the record as a whole, in determining whether disputed issues of fact preclude summary judgment in either party’s favor. See Wilbern v. Culver Franchising Sys., Inc., 2015 WL 5722825, at *17 (N.D. Ill. Sept. 29, 2015).
B. State Law Breach Of Contract Claims
Because the parties’ summary judgment arguments on Plaintiffs’ state law claims are more easily resolved than their arguments regarding Plaintiffs’ IDEA claims, the Court will address the state law claims first.
1. Whether Administrative Exhaustion Applies
Defendant’s primary argument for.summary judgment is that Plaintiffs’ claims should be dismissed because Plaintiffs failed to exhaust their administrative remedies. The exhaustion requirement is found in two separate provisions of the IDEA. First, § 1415(i)(2)(A) provides that a cause of action may be brought for violation of the IDEA by any party aggrieved by a final decision of a State educational agency made after an impartial due process hearing, conducted pursuant to subsection (f) of § 1415. See 20 U.S.C. § 1415(i)(2)(A). This provision has been read as according a right to judicial review of a claim based on the IDEA only after “all administrative proceedings are completed.” Honig v. Doe, 484 U.S. 305, 327, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988) (citing to § 1415(e)(2), the predecessor to § 1415(i)(2)(A)); see also Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481, 494 (7th Cir. 2012) (“Ordinarily, a plaintiff may not file an IDEA lawsuit without first exhausting available administrative remedies.”).
The second exhaustion requirement is found in § 1415(l) of the IDEA, which provides that:
Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or other Federal. laws protecting the rights of children with disabilities, except that before the filing of a civil action under such .laws seeking relief that is also available under this subchapter, the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this subchapter.
20 U.S.C. § 1415(l) By virtue of § 1415(l), courts have held that the requirement of administrative exhaustion applies not only to claims brought under the IDEA, but also to non-IDEA claims brought to enforce the rights ‘of children ■with disabilities' under any other federal law.. In determining whether the exhaustion requirement of § 1415(Z) should apply to a non-IDEA claim, the Seventh Circuit has explained that courts should look to the “theory behind the grievance” to see if the IDEA’S process was activated, Charlie F., 98 F.3d at 992. If the complaint “deals with acts that have both an educational source and an adverse educational consequence,” id, at 993, then exhaustion is required.
Defendant argues that, pursuant to § 1415(i), exhaustion is required for Plaintiffs’ claims even if the theory of those claims is breach of the Settlement Agreement. By its plain terms, however, § 1415(£) only applies to rion-IDEA claims brought under the Constitution or other federal law. It does not apply to state law breach of contract claims such as Plaintiffs’ claims for breach of the Settlement Agreement. See Fortes-Cortes, 128 F.Supp.3d at 465-66 (“[Plaintiffs transportation-reimbursement claim does not implicate the IDEA’S exhaustion requirement. Properly- viewed, that- claim is not broüght under the IDEA. It is, rather, a request for enforcement of the stipulated order entered in Fortes-Cortes I."); C.B. v. Sonora Sch. Dist., 691 F.Supp.2d 1123, 1147 (E.D. Cal. 2009) (“There is no question that the IDEA’S exhaustion requirements are limited to claims for violations of-federal rights.”) (citing cases).
Again, Defendant relies on R.K., 2007 WL 2778702, this time for the exhaustion requirement as applied to IDEA settlement agreements. But the R.K. court specifically noted that exhaustion applied only to the plaintiff’s federal- claims, not to his state law claims. Id. at ‘ *5 n.4 (citing cases). Defendant incorrectly cites to the result in that ease, whereby the court ultimately applied exhaustion to a claim for breach of a settlement agreement. The court did so, however, because it found that the plaintiffs claim for a declaration of rights under the settlement agreement at issue in that case was in fact a federal, not state, law claim because that agreement was entered into during an administrative proceeding over which Congress has provided an enforcement mechanism. Id. at *6, As previously discussed, the Settlement Agreement here was not entered into pursuant to a mediation or . resolution session, and therefore, the IDEA does not create an enforcement mechanism for that agreement.
Defendant nonetheless argues' that Plaintiffs’ breach of contract claim is really an IDEA claim in disguise because Plaintiffs seek reimbursement for tuition and other expenses, for compensatory education, and for attorneys’ fees.- According to Defendant, these remedies are only available under IDEA. But only some of the remedies Plaintiffs seek, like compensatory education and attorneys’ fees, are only available under the IDEA. For their state law breach of contract claim, Plaintiffs are entitled to recover “an ‘ amount equivalent to the difference between the benefits [they] actually received and those to which [they were] due under the Agreement.” Roboserve, Inc. v. Kato Kagaku Co., 78 F.3d 266, 278 (7th Cir. 1996). While the issue is not currently before the Court, it is likely that, under this contract measure of damages, Plaintiffs at the very least would be able to recover the reimbursements they seek for costs and expenses, such as tuition expenses for ELSA (assuming they prove their breach of contract claim).
Finally, the Court disagrees with Defendant that cases other than R.K. involving the issue of exhaustion and IDEA settlement agreements establish a general rule of exhaustion for breach of IDEA settlement agreement claims. The casés Defendant cites all deal with settlement agreements reached during the administrative process, rather than an agreement, like the Settlement Agreement here, entered into to resolve federal court litigation! Aside from the fact previously discussed that, as a matter of statutory construction, IDEA’S exhaustion requirement simply does not apply to Plaintiffs’ state law breach of contract claims, the Court also cannot ignore' the'strong federal'policy favoring the voluntary resolution of disputes. See, e.g., Metro, Hous. Dev. Corp. v. Vill. of Arlington Heights, 616 F.2d 1006, 1013 (7th Cir. 1980). As aptly stated in Pesek v. Donahue, 2006 WL 1049969 (N.D. Ill. Feb. 9, 2006), “a settlement allows parties to resolve their disputes by compromise, taking into consideration all relevant risks and costs. In a settlement, each side gives up something ... [to avoid] the risk of suffering its worst case result.... A settlement reflects the parties’ mutual decision that a compromise is preferable to the risk and’uncertainty of trial.... Moreover, each side obtains through settlement the benefits of immediacy—that is, a settlement ends the litigation and the attendant-disruption of it, rather than'allowing it to continue for, in some instances, years.” Id. at *4; see also Aro Corp. v. Allied Witan Co., 531 F.2d 1368, 1372 (6th Cir. 1976) (“Public policy strongly favors -settlement of disputes without litigation.... By such agreements are the burdens of trial spared to the parties, to other litigants waiting their turn before over-burdened courts, and to the citizens whose taxes support the latter.”); Johnson v. Hermanson, 221 Ill.App.3d 582, 164 Ill.Dec. 57,582 N.E.2d 265, 267 (1991) (“Public policy in Illinois favors settlements and dictates that, absent fraud or duress, settlements once made should be final.”).
Even if the Court disregard's the fact that Defendant’s cases afl involve settlements of administrative claims'as opposed to settlement of a federal lawsuit',''those cases still do- not persuade the Court to adopt Defendant’s view that claims for breach of IDEA settlement Agreements are necessarily subject to administrative exhaustion. Indeed, as one court has described it, the law in this area is “muddle[d].” S. Kingstown Sch. Comm. v. Joanna S., 2014 WL 197859, at *9 (D.R.I. Jan. 14, 2014) (citing Weber, Settling IDEA Cases, at 641-42 (“even though IDEA ... has been around since the 1970s, litigants áre'still without'clear guidance about how the mechanisms of settlement should work, what the settlement agreement ought to look like, and what to do if either side of the dispute fails to live up to its agreement”)). The Court also notes that none of the cases Defendant cites are from this circuit, and the only appellate decisions are non-precedential unpublished and per curiam orders. Further, one case, F.H. ex rel. Hall v. Memphis City Schs., 2013 WL 4056360 (W.D. Tenn. Aug. 12, 2013), was reversed by the Sixth Circuit in a published opinion shortly after the summary judgment briefing in this case was completed. The Sixth Circuit held that, at least insofar as settlement agreements entered into during a mediation session or through the resolution process are concerned, Congress expressly provided that such agreements were “enforceable in state or federal court” which necessarily implies that no further exhaustion is required. F.H. ex rel. Hall v. Memphis City Schs., 764 F.3d 638, 645 (6th Cir. 2014).
Finally, several of the cases cited by Defendant require administrative exhaustion of entirely new and previously unex-hausted IDEA claims that were unrelated to the issues resolved by the settlement agreement. While Plaintiffs’ specific IDEA claims in this case were not previously exhausted, they are related to the exhausted claims at issue in the first lawsuit. Plaintiffs raised an arguably valid point in the first lawsuit that, had the case not settled, those claims should have been resolved without further administrative exhaustion because nothing in the IDEA itself suggests that John’s post-senior years of IDEA-eligible secondary school are to be treated any differently than his first four years, notwithstanding that the parties agreed that his educational instruction in that period would take place in a private placement setting as opposed to in the general curriculum at ETHS. See W.L.G. v. Houston Cnty. Bd. of Educ., 975 F.Supp. 1317, 1329 (M.D. Ala. 1997) (noting that court might be able to consider a student’s changed circumstances at time of decision because the “need to provide full and realistic relief could override the need for exhaustion,” and, that, in such circumstances, “the court would be cdnsidering the changed or subsequent circumstances as only incident to a current, viable, and already exhausted IDEA claim”). While ■ Judge Holderman apparently thought differently when he ruled on the mootness question, the fact remains that Defendant agreed in the settlement of the first lawsuit to resolve those issues notwithstanding Judge Holderman’s mootness ruling.
Requiring administrative exhaustion of a claim for breach of a settlement agreement to resolve a federal lawsuit “puts the aggrieved party literally back at square one, having to litigate the case that was supposed to have been resolved.” Weber, Settling IDEA Cases, at 664. In addition, requiring further exhaustion creates uncertainty surrounding the enforceability of settlement agreements, and the prospect of unenforceability encourages parties “to bide [their] time for so long as [they are] benefited from doing so, and then breach the agreement with no fear of sanction. The [breaching party] would have lost nothing. It would then face only the same prospect of suit on the underlying [] charge it would have faced prior to its entering the [settlement] agreement.” Safeway Stores, Inc., 714 F.