MADISON - ST. CLAIR RECORD

Shiloh School District 85 lost its battle to keep a suit that deals with alleged violations of the Individuals with Disabilities Education Act (IDEA) and Americans with Disabilities Act (ADA) in federal court.

Last week, U.S. District Judge J. Phil Gilbert in Benton remanded the case back to state court ruling that he has no jurisdiction in the suit even though the school removed the case based on the fact that it deals with IDEA and ADA claims.

Ranier and Laura Reuther filed suit against the school on Sept. 18, 2007, on behalf of their minor son Jakob, 13, who is a student at Shiloh School.

Laura Reuther ran for a seat on the school board but lost in the April 17, 2007, election.

According to their complaint, Jakob is blind and is confined to a wheel chair due to cerebral palsy.

The Reuthers claim that prior to Jakob's enrollment they met with school officials to make them aware of their son's handicaps.

They claim the school was aware that they were required to provide a certified licensed aide for Jakob at all times otherwise there was a high probability that he would be injured.

According to the complaint, on May 6, 2004, a substitute aid placed a hot tray of food in front of Jakob and he placed his elbow in peas which caused burns bad enough that they blistered and scarred and caused significant pain and suffering along with disfigurement.

The Reuthers also claim that on Sept. 28, 2005, they informed the superintendent that the occupational therapist was having a difficult time in finding a sink for Jakob to wash his hands and that the sink being used was not ADA compliant for children aged 6-12.

According to the complaint, on Nov. 27, 2005, Jakob and his occupational therapist were in the faculty bathroom washing his hands when his head went forward smacking his forehead on the front of the sink which left a large bump on his head and a mild concussion.

The Reuthers also claim that on Dec. 7, 2005, they requested alternative seating for Jakob because of his physical limitations from cerebral palsy and spasticity in his hips. However five days later, Jakob was forced to stay in a "stander" for a long period of time even though he was crying and stating he was in severe pain.

According to the complaint, the teacher informed the parents that she did not believe Jakob was in pain because he was not producing tears.

After Shiloh removed the case, the Reuthers asked Gilbert to remand it arguing that federal courts only have jurisdiction to hear cases removed in which a complaint establishes that federal law creates the cause of action.

Gilbert ruled that the plaintiff is the "master of the complaint" and may avoid federal jurisdiction by relying solely on state law, so long as there is not complete federal preemption.

"The Reuthers invoke the IDEA to establish the school district's duty to Jakob, but contend that because no relief is available under the IDEA, the claim does not arise under federal law," Gilbert wrote.

He added, "The Reuthers request monetary relief to compensate Jakob for the physical injuries he suffered and the medical bills he incurred."

Gilbert then noted that the question he faces is whether the creation under the ADA or the IDEA of a duty of care is sufficient to confer federal question jurisdiction in the absence of a claim brought under another federal statute.

"In the case at bar, Jakob's injuries are physical, not educational, in nature," Gilbert wrote. "No change to his IEP can remedy the damage done to Jakob's body. No injunctive relief is available to help him now."

Gilbert said the Reuters could have brought a federal claim for compensation for Jakob's injuries, but chose not to.

"The Reuthers advance federal law solely as the creator of the duties owed Jakob," Gilbert wrote. "However, the theories upon which their claims are based are solely state tort law."

The case is back in St. Clair County.

Shiloh is represented by Julie Bruch of Northbrook, Ill.

The Reuthers are represented by Heather Wescoat of Belleville.