J.L. v. New York City Department of Education

Filing 37

MEMORANDUM & ORDER: For the foregoing reasons, J.L.'s motion for summary judgment is granted, and NYC DOE's motion for summary judgment is denied. DOE is hereby directed to reimburse J.L. for J.R.'s tuition expenses at MMFS during the 2012-2013 school year. That reimbursement should be supplied directly to MMFS. The Clerk of Court is respectfully directed to close the case. So Ordered by Judge Carol Bagley Amon on 11/22/2016. (fwd'd for jgm) (Lee, Tiffeny)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
X

J.L., Individually and on Behalf of and as
Parent of J.R., a Student with a Disability,

Plaintiff

NOT FOR PUBLICATION
MEMORANDUM & ORDER

-against-

15-CV-1200(CBA)
(RER)

NEW YORK CITY DEPARTMENT OF

EDUCATION,
Defendant.

AMON,United States District Judge:

PlaintiffJ.L. brings this action individually and on behalfofher son,J.R., against defendant

New York City Department of Education("NYC DOE" or "DOE") pursuant to the Individuals
with Disabilities Education Improvement Act of 2004("IDEA"),20 U.S.C. § 1415(i)(2)(A). J.L.
seeks review and reversal of a final administrative decision made by a New York State Review

Officer concerning the provision of free appropriate public education for J.R., who is a student

with a disability. The parties now cross-move for summaryjudgment.For the reasons stated below,
J.L.'s motion is granted and NYC DOE's motion is denied.
BACKGROUND*
I.

The IDEA

Under the IDEA, qualifying disabled students are entitled, each year, to free appropriate

public education("FAPE")that conforms to a tailored education plan designed for their particular

' These facts come from the administrative record, which includes: the SRO's decision, (D.E. # 31-1 ("SRO

Decision"));the IHO's decision(D.E.#31-2("IHO Decision"));the DOE Petition(D.E.# 31-3 at 1-26("DOE Pet."));
JL's Verified Answer and Cross-Appeal (D.E. # 31-3 at 27^7 ("J.L.'s Verified Answer and Cross-Appeal")); the
IHO Hearing Transcript,(D.E. # 31-8 ("IHO Hr'g Trans.")); J.L.'s October 1, 2012 letter,(D.E. #31-9 at 12 ("J.L.
Oct. 1,2012 Letter")); the lEP,(D.E.# 31-9 at 16-25 ("lEP")); Final Notice of Recommendation,(D.E.# 31-9 at 27
("Final Notice of Recommendation")); J.L.'s August 22,2012 letter,(D.E.# 31-9 at 11 ("J.L. Aug.22,2012 Letter"));

and J.L.'s Due Process complaint,(D.E.# 31.-3 at 22-24("Djue^Process Compl.")).
1

needs. The education plan, called an Individualized Education Program ("lEP"), must be

developed annually by a Committee on Special Education ("CSE")—a committee comprising at
least "the student's parent(s), a representative of the school district, a special education provider,
a general education teacher if the student is being considered for a general education environment,

and any other individual with special knowledge or expertise concerning the child."(D.E. # 25
("Def. Mem.")at 14 (citing 20 U.S.C. § 1414(d)(1)(B)).) In New York, decisions made by CSEs

can be appealed to an Impartial Hearing Officer ("IHO"), and decisions made by IHO's can, in
ii

turn, be appealed to a State Review Officer("SRO"). A dissatisfied party may seek judicial review
of an SRO decision.

Parents of students covered under the IDEA may unilaterally reject the placement

recommended by the CSE,choosing to enroll the student(s)elsewhere while they appeal the CSE's

recommendation ifthey find that recommendation unsuitable. Sch. Comm.ofTown ofBurlington,
Mass. V. Dep't ofEduc. of Mass..471 U.S. 359,373-74(1985). In doing so, parents can seek DOE
funding for the tuition of their preferred placement if they can demonstrate:(1) that the CSE's
recommended placement does not comply with the IDEA;(2) that the placement favored by the

parent is appropriate given the needs of the child; and (3) that equitable considerations favor
reimbursement. E.M. v. New York Citv Dep't of Educ.. 758 F.3d 442,451 (2d Cir. 2014). Parents

who unilaterally reject the recommended placement during the pendency ofan appeal ofthe CSE's
decision "do so at their own financial risk." Burlington. 471 U.S. at 374.

II.

J.R.'s Educational History

J.R. was bom in 2003.(D.E. # 28 "(PI. Mem.") at 1.) When J.R. was in preschool, J.L.

noticed that he was struggling more than other children to leam new material and information, so
she had him evaluated for special education services.(Id) Following that evaluation, J.R. spent

kindergarten and first grade at public schools, but his challenges with leaming continued.(Id at
2

2.) Thereafter, a neurologist recommended to J.L. that she explore schools for J.R. specifically

capable of working with students who exhibited similar leaming disabilities, which include

"significant working memory difficulties," "receptive language processing impairments[,] and
auditory processing difficulties," as well as behavioral issues arising from his frustration when he
is unable to keep up with his classmates.(Id. at 1.)

During the 2010-2011 and 2011-2012 school years, which were J.R.'s second and third

grade years, J.R. attended Mary McDowell Friends School ("MMFS")—a private school for
disabled students.(Id. at 2.) Although both parties say that J.R. made some progress during those

years, they disagree about the extent of that progress. J.L. claims that "J.R. was able to make
gradual progress ...[but] he continued to struggle in his classes that contained two teachers and
10 to 11 students." (Id.; see also Impartial Hearing Officer's Hearing Transcripts ("IHO Hr'g

Trans.")77:6-78:1.) Defendant argues that "J.R. was attending a class at MMFS with 11 students
and two teachers for the 2011-2012 school year arid was making progress."(Def. Mem. at 23.)
III.

J.R.'s 2012 lEP

On May 29,2012, a CSE was convened to prepare an lEP for J.R.'s fourth-grade year.(PI.
Mem. at 2.) Present at the meeting were: J.L.; Shirley Piccola, a school psychologist and district

representative; Ann Parise, a special education teacher; and Anh Lui, a parent.(Id at 2-3.) One of
J.R.'s MMFS teachers, Michelle Carfagna, participated by phone. (Id at 3.) In formulating the

lEP,the CSE appears to have considered a school report from MMFS and the input ofthe various
meeting participants.(IHO Hr'g Trans. 16:5-15.)
The CSE created an lEP that noted J.R.'s current levels of ability, set goals for him to

achieve over the next year, and suggested a classroom placement for J.R. and a variety ofsupport

services.^ (See generally lEP.) In choosing a classroom placement, the CSE considered three
options: an integrated co-teaching class, a special class in a community school, and a 12:1+1

classroom.^(lEP at 10.)The CSE opted for a 12:1+1 classroom,rejecting an integrated co-teaching
class "due to academic deficits" and a special class in a community school because of J.R.'s "need

for consistent redirection/prompts/check-ins.""*(Id)Both Carfagna and J.L."felt that[J.R.] needed
a much smaller group [than provided for in a 12:1+1 classroom]throughout the course ofthe day."
(IHO Hr'g Trans. 23:22-25.) According to Piccola, that objection is noted in the lEP, (id.),

although,in the lEP itself, the concern about classroom size is attributed primarily to J.L.,

lEP

at 1).

In August of2012,the CSE sent a letter to J.L. briefly summarizing the lEP and noting its
recommendation that J.R. be placed in a 12:1+1 classroom at P.S. 8 Shirlee Solomon ("P.S. 8")

for the upcoming academic year.(See Final Notice of Recommendation.) Shortly thereafter, in a
letter sent by an attorney, J.L. notified the CSE that she had been unable to visit P.S. 8 because the
school was closed over the summer; that J.R. had been readmitted to MMFS for the upcoming

school year; that J.L. still felt a 12:1+1 classroom was not appropriate for J.R.; that J.L. therefore
intended to reenrolfJ.R. at MMFS;'and that J.L. would visit P.S. 8 when it opened for the year

with the intention of enrolling J.R. there if she found it suitable. (J.L. Aug. 22, 2012 Letter.) J.L.
sent a second letter in October, again through an attorney, indicating that she had since visited P.S.
8 and remained convinced that the school would not provide J.R. "the opportunity to receive

^ There appears to be no serious dispute as to the assessment of J.R.'s abilities as contained in the lEP, although there
is a discrepancy with respect to J.R.'s level of mathematical proficiency, which seems to be listed both at the firstgrade level,(lEP at 1), and at the third-grade level,(lEP at 9). DOE attributes the discrepancy to a typo, claiming the
first assessment is correct.(Def. Mem. at 23-24.)

^ A 12:1+1 classroom has 12 students, one teacher, and one paraprofessional.(PI. Mem. at 3.)

'' The following line ofthe lEP states that,"[a]t this time,[J.R.]continues to benefit from a special class in a community
school in a 12:1:1 ratio."(Id.)Nothing further in the lEP reconciles that statement with the CSE's rejection ofa special
class in a community school.
4

meaningful educational services." (J.L. Oct. 1, 2012 Letter.) She noted her intention to seek an
order from an IHO compelling DOE to cover J.R.'s expenses at MMFS for 2012-2013.(Id)
On November 19, 2012, J.L. filed a due process complaint that, among other things,

objected to the 12:1+1 placement recommended by the CSE on the grounds that it was "too large
for [J.R.'s] educational needs."(PI. Mem. at 6;see also Due Process Compl. at 2.)The IHO,Esther
Mora,held hearings on the complaint between December of2012 and February of2013.(PI. Mem.

at 6.) By that point, J.R. had spent several months of his fourth grade year at MMFS,in a sevenstudent, two-teacher classroom called the "Whittier Room."(PI. Mem. at 5.)

At the hearing, DOE solicited the testimony of two people: Shirley Piccola, the school

psychologist and district representative who was part of the CSE, and Jennie Datre, the special
education teacher from the P.S. 8 classroom recommended for J.R. by the CSE.(PI. Mem. at 7.)

Piccola recalled objections to a 12:1+1 placement for J.R. raised before the CSE by J.L. and by
J.R.'s previous MMFS teacher. (IHO Hr'g Trans. 23:22-25.) Ms. Datre interpreted the lEP to

require testing accommodations for J.R. that she was not completely certain her classroom could
support,(id at 49:19-25), and she discussed the behavioral problems ofsome ofthe students who
would have been J.R.'s classmates at P.S. 8,(id at 50:18-51:1).^ DOE also submitted three pieces

of documentary evidence: the lEP, the Final Notice of Recommendation sent to J.L. in August of
2012, and certified mail receipts pertaining to the Final Notice of Recommendation.(PI. Mem. at
6; IHO Decision at 10.) DOE did not introduce the MMFS report relied upon by the CSE in
developing J.R.'s lEP.(PI. Mem. at 6.)

^ The parties diverge in their characterization of Datre's testimony. According to J.L., Datre admitted that her
classroom at P.S. 8 could not adhere to all of the lEP's recommendations for J.R.'s fourth grade education. (Pl.'s

Mem. at 7.) According to DOE, Datre's concerns did not reach any accommodations for J.R. explicitly required by
the lEP.(Def. Mem. at 11.)

J.L. introduced documentary evidence related to her objections to the 12:1+1 placement,

as well as her preferred MMFS placement, and her income.(See IHO Decision at 10.) On behalf
of J.R., the IHO heard testimony from Elizabeth Ballantyne, the Head Teacher of MMFS; Beth
Schneider, the Associate Head of MMFS;and J.L.(Def. Mem. at 11.) J.R.'s witnesses addressed,

among other things, his progress that year in the Whittier Room.(IHO Hr'g Trans, at 68-91.)
On March 19,2013,the IHO issued her decision.(Def. Mem. at 9.) She found that the CSE
i• s s

had failed to offer J.R. a FAPE; that the MMFS placement chosen by J.L. was appropriate; and

that the balance of equities favored J.L.(IHO Decision at 7-8.) Specifically, with respect to the
propriety ofthe 12:1+1 placement,the IHO found that "[t]he record establishes that [J.R.] recently
attended classes with ten and eleven students and had great difficulty." She also found that P.S. 8

would not have afforded J.R. the "quiet, calm and focused environment" that he "requires" as a

result of his learning disability.(Id at 7.) The IHO therefore ordered DOE to pay J.R.'s MMFS

tuition for the 2012-2013 school year.^(Id at 8.)
On April 23, 2013, DOE appealed the IHO's decision to an SRO, Carol H. Hauge. (PI.
Mem. at 9-10.) DOE argued, inter alia, that J.R. had made sufficient progress in comparable

classrooms at MMFS and therefore that the 1^:1+1 placement constituted a FAPE under the IDEA.
(DOE Pet. H 28.) On November 25, 2014, approximately 18 months later, the SRO issued a

decision reversing the IHO and finding that the 12:1+1 placement at P.S. 8 did constitute a FAPE.^
(PI. Mem. at 10.) The SRO did not reach the question of whether MMFS was also appropriate for
J.R., or where the balance of equities fell. (Id at 11.) The SRO's decision appears to have been

^ At the IHO hearings, J.L. contested the admission ofsome of DOE's evidence, including the lEP, by noting that the
evidence had not been disclosed to her timely as required by statute. (See IHO Hr'g Trans. 9:8-12:10.) The IHO
ultimate admitted the evidence, and when DOE appealed that decision to the SRO,J.L. cross-appealed the admission

of the evidence by the IHO.(See J.L.'s Verified Answer and Cross-Appeal,

47-51.) The SRO ultimately upheld

the IHO's decision to admit the evidence.(SRO Decision at 5.)

'
Citing 34 C.F.R. § 300.515(b)(1), J.L. argues that the SRO was obligated to provide a final decision much sooner.
(Pl.'s Mem. at 10.)

)

!

based exclusively on the administrative record, DOE's appeal, and J.L.'s response and crossappeal.(Id. at 9-10.)
DISCUSSION
I.

Standard of Review

The motions before the Court are styled as cross-motions for summary judgment, but

district courts reviewing administrative decisions under the IDEA are "not dealing with summary
judgment in its traditional setting." Wall bv Wall v. Mattituck-Cutchogue Sch. Dist.. 945 F. Supp.
501, 508 (E.D.N.Y. 1996). Pursuant to the statute, the court is to "receive the records of the

administrative proceedings;... hear additional evidence at the request of a party; and[,] basing its
decision on the preponderance of the evidence, . . . grant such relief as the court determines is
appropriate." 20 U.S.C. § I415(i)(2)(C); see also Bd. of Educ. of Hendrick Hudson Cent. Sch.
Dist.. Westchester Ctv. v. Rowlev. 458 U.S. 176, 205 (1982) (noting that courts reviewing
administrative IDEA determinations are to make "independent decision[s] based on a

preponderance of the evidence")(alteration in original)(quotation marks and citations omitted).
The independent review conducted by federal courts should give "due weight" to the
administrative proceedings below, for "the judiciary generally lack[s] the specialized knowledge
and experience necessary to resolve persistent and difficult questions of educational policy."
Walczak v. Florida Union Free Sch. Dist.. 142 F.3d 119,129(2d Cir. 1998)(alteration in original)

(citations omitted). Therefore,the power to review administrative IDEA decisions "is by no means
an invitation to the courts to substitute their own notions of sound educational policy for those of

the school authorities which they review." Rowlev. 458 U.S. at 206. Nevertheless,"federal courts
do not simply rubber stamp administrative decisions." Id

In applying the appropriate level of scrutiny to administrative decisions, courts "must
examine the record for 'objective evidence' that indicates 'whether the child is likely to make

progress or regress under the proposed plan.'" Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d
105, 113 (2d Cir. 2007)(citing Walczak. 142 F.3d at 130). Courts are to use "the same objective
evidence standard" when assessing the private placement selected by the student's parents. Id
When the decisions of the IHO and the SRO conflict, the courts typically "defer to the
reasoned conclusions ofthe SRO as the final state administrative determination." C.F. ex rel. R.F.

V. New York Citv Deo't of Educ.. 746 F.3d 68, 77(2d Cir. 2014)(quotation marks and citations

omitted). "Deference is particularly appropriate when ... the state hearing officers' review has
been thorough and careful." Walczak. 142 F.3d at 129. But the IHO receives deference "when the
SRO's determinations are insufficiently reasoned to merit deference," as well as on issues that the
SRO does not reach. C.F., 746 F.3d at 77.
II.

The Burlington-Carter Test

As noted above,"parents wlio have unilaterally placed their child in private school will be
entitled to reimbursement if(1) the school district's proposed placement violated the IDEA,(2)

the parents' alternative private placement is appropriate to meet the child's needs,and(3)equitable
considerations favor reimbursement." E.M. v. New York Citv Dep't of Educ.. 758 F.3d 442, 451

(2d Cir. 2014). This three-part assessment is known as the "Burlington-Carter test." Id,(citing
Den'tofEduc. of Mass..471 U.S. at 369 and Florence Ctv. Sch. Dist. Four v. Carter Bv & Through

Carter. 510 U.S. 7, 15 (1993))."[T]he broad spectrum of equitable relief contemplated under the

IDEA encompasses,in appropriate circumstances, a 'direct-payment' remedy," under which DOE
could pay its reimbursement directly to the school attended by the student rather than to the parent.
E.M.. 758F.3dat453.

A. Prong One of the Burlington-Carter Test

The first question the Court must address is whether DOE offered J.R. a FAFE when it
recommended placing him in a 12:1+1 classroom. To offer J.R. a FAPE,DOE would have to meet
both a procedural and a substantive standard. P.K. ex rel. S.K. v. New York Citv Dep't of Educ.
(Region 4). 819 F. Supp. 2d 90, 104(E.D.N.Y. 2011) affd. appeal dismissed. 526 F. App'x 135

{2d Cir. 2013)("In addressing the first prong of the test, a court considers whether the student's

lEP was developed according to the procedural and substantive requirements of the IDEA."). If
the Court finds that DOE did offer J.R. a FAPE,it need not reach the other prongs of the test. Id

Procedurally, DOE must comply with, the statutory requirements concerning the
constitution of the CSE and the process for generating an lEP."A procedural violation generally

concerns the process by which the lEP and placement offer was developed and conveyed." Id
Under the statute, a procedural violation entails the denial of a FAPE when the violation "(I)

impeded the child's right to a free appropriate public education; (II) significantly impeded the

parents' opportunity to participate in the decisionmaking process regarding the provision of a free

appropriate public education to the parents' child; or (III) caused a deprivation of educational
benefits." 20 U.S.C. § 1415(f)(3)(E)(ii).

Substantively, the placement "must include special education and related services tailored
to meet the unique needs of a particular child, and be reasonably calculated to enable the child to
receive educational benefits." C.F., 746 F.3d at 72. Significantly, "[a] school district is not. ..

required to furnish 'every special service necessary to maximize each handicapped child's
potential.'" Cerra v. Pawling Cent. Sch. Dist.. 427 F.3d 186, 194-95 (2d Cir. 2005)(quoting
Rowlev. 458 U.S. at 207). Instead,"a school district fulfills its substantive obligations under the

IDEA ifit provides an lEP that is 'likely to produce progress, not regression,' and ifthe lEP affords

the student with an opportunity greater than mere 'trivial advancement.'" Id, at 195 (quoting
Walczak. 142 F.3d at 130). "Substantive inadequacy automatically entitles the parents to

reimbursement." C.F.. 746 F.3d at 79 (quoting R.E. v. New York Citv Dep't of Educ.. 694 F.3d
167,190(2d Cir. 2012)).

J.L. appears to argue primarily that DOE failed to meet the substantive standard rather than

the procedural one.^(See D.E.# 29 "(PI. Reply Mem.")at 3.) She argues that DOE failed to meet
its burden to justify placing J.R. in a 12:1+1 classroom.(Id at 15-18.) She argues further that the
Court should not defer to the SRO's judgment that DOE provided J.R. with a FAPE.(Id at 1824.) Finally, J.L. argues that P.S. 8 was unable properly to implement J.R.'s lEP.(Id at 24-28.)

DOE argues that it met both the procedural and substantive requirements.(Def. Mem. at 14-20.)
"Because administrative agencies have special expertise in making judgments concerning

student progress, deference is particularly important when assessing an lEP's substantive

adequacy." Cerra. 427 F.3d at 195. If the SRO's decision were "reasoned and supported by the
record," it would therefore likely be entitled'to deference. M.H. v. New York Citv Dep't of Educ..
685 F.3d 217,241(2d Cir. 2012)(quotation marks and citation omitted). Here, however,the SRO's

finding is not supported by the record. In particular, there is no analysis from the SRO or testimony
or documentary evidence in the administrative record explaining why a 12:1+1 classroom would
offer J.R."an opportunity greater than mere 'trivial advancement.'" Cerra. 427 F.3d at 195 (citing
Walczak. 142 F.3d at 130).

Although the SRO ostensibly discusses the adequacy of the 12:1+1 placement in her
decision,(s^ SRO Decision at 6-8), that discussion entirely omits an explanation for why such a

placement would meet J.R.'s unique needs. The SRO begins by presuming that the lEP faithfully

® J.L. also suggests in passing that the record does not epta|)lis;h the CSE's compliance with the procedures required
by statute.(D.E. # 29 at 4.)
10

documented J.R.'s level of ability at the time it was made, noting that J.L. never challenged the

information relied upon by the CSE.(Id at 6.) The SRO then largely recounts the contents ofthe
lEP itself,(see id. at 6-7), before summarily concluding that DOE offered J.R. a FAPE,(id at 8,
finding that "a review of the May 2012 lEP shows that the [sic] given the student's needs as

identified in the present levels of performance, the May 2012 CSE developed annual goals and
recommended management supports, testing accommodations, and related services to address

those needs, which in conjunction with a 12:1+1 special class placement, was reasonably
calculated to enable the student to receive educational benefits and provide him with a FAPE").
The SRO states that the lEP is sufficient, but does not independently explain why that is the case.

In light of these deficiencies, the decision does not warrant deference. S^ C.L. v. New York Citv
Den't of Educ.. No. 12-CV-1676(JSR),2013 WL 93361, at *7(S.D.N.Y. Jan. 3,2013)affd. 552

F. App'x 81 (2d Cir. 2014), as amended(Feb. 3,2014)(rejecting the SRO's decision because "[a]t
no point does the SRO actually analyze the evidence or explain the reasons for its determination");
see also M.H.. 685 F.3d at 249 ("The SRO failed to point to contrary evidence that he deemed

more compelling [than the evidence relied upon by the IHO]. Had he done so, the district court
might have properly deferred to the SRO's analysis of the lEP's goals and objectives. But the
SRO's conclusory statement does not evince thorough and well-reasoned analysis that would
I

, (

require deference.").

The SRO's omission might be less significant ifthe Court had other information supporting
the recommended placement, but the record is bare in that respect. For one, as the SRO observes,
"[t]he record does not contain any Mary McDowell school reports for [J.R.]."(Id at 6.) Yet the

only document relied upon by the CSE in creating the lEP was an MMFS report. As a result,
"[n]one ofthe documents relied upon in developing the [lEP]...[are available] for review by the

11

SRO and this Court." Brock ex rel S.B. v. New York City Dep*t ofEduc.. No. 13-CV-8673(GBD)

(DF),2015 WL 1516602,at *6(S.D.N.Y. Mar.31,2015). The Court therefore has no documentary

evidence evaluating J.R.—which could in theory support the substance ofthe lEP's conclusions—

except the lEP itself. Leaving aside the fact that the lEP's recommendation is contested here,even

the contents ofthe lEP are not helpfiil in explaining the suitability ofthe 12:1+1 placement.^(See
generallv lEP.)

Moreover,the testimony offered by DOE at the IHO hearing also failed to explain why the

12:1+1 placement was appropriate in the face ofthe objections raised by J.R.'s mother and MMFS
teacher.(See IHO Hr'g Trans., 12:11-53:19.)In short, except for the lEP's recommendation, and
the SRO's endorsement of the lEP, there is nothing in the record directly justifying a 12:1+1

placement for J.R. Further, even including the SRO's decision and the lEP,there is nothing in the
record explaining how the proposal of a 12:1+1 placement was "reasonably calculated to enable
the child to receive educational benefits[s]." Cerra. 427 F.3d at 194 (citing Rowlev. 458 U.S. at
207)(alteration in original).

DOE emphasizes that J.R."was able to make gradual progress during the 2010-2011 and

2011-2012 school years,"(D.E. # 26 ("Def. Reply Mem.") at 6(quoting PI. Mem. at 2)), during
which J.R. attended MMFS classes with 10 and 11 students. J.L. does indeed concede that J.R.

made some progress during those two years,(see id. at 2), yet it does not follow that the progress
supports a finding that a 12:1+1 classroom would have been appropriate for J.R.'s fourth-grade
year. For example, there are many issues left unaddressed by the SRO's opinion, including:
whether J.R.'s progress in the previous two years met the standard required by the IDEA; whether

' lEP notes on one hand that J.L. pressed for a smaller classroom than a 12:1+1, and notes on the other that "[J.R.]
The
has made slow, but gradual progress in school thus far."(IE? at 1.) The lEP does not explicitly address how a 12:1+1
classroom (as compared to the smaller room called for by his mother and teacher) would help J.R. achieve the annual
goals that the CSE laid out for him.
12

J.R.'s needs for fourth grade (as identified in the lEP or otherwise) remained sufficiently similar
to his needs from those two previous years for his earlier progress to be instructive; or whether a
12:1+1 classroom—^which, if full, would be at least slightly larger than J.R.'s previous

classrooms—is pedagogically equivalent to J.R.'s second- and third-grade rooms.'®
In fact, most ofthe evidence specifically addressing the 12:1+1 placement instead supports
the conclusion that J.R. would have been likely to struggle. First, as noted above, both J.L. and
one of J.R.'s MMFS teachers, Michelle Carfagna, insisted, as the IFO found, at the CSE meeting

that J.R. needed a class smaller than a 12:1+1.(Ilio Hr'g Trans. 23:22-25.) J.L. maintained that
objection, in one form or another, in the months after the CSE meeting.(See J.L. Aug. 22, 2012
Letter; J.L. Oct. 1, 2012 Letter.) Further, at the hearings held by the IHO,the Associate Head of
MMFS,Beth Schneider, testified that she also believed J.R. would have had difficulty in a 12:1+1

classroom." (IHO Hr'g Trans. 88:9-23.) Finally, after holding hearings, the IHO found that the

12:1+1 placement was inadequate under the IDEA and did not amount to a FAPE.(IHO Decision
at 7-8.) She concluded, inter alia, that "the record establishes that the student recently attended
classes with ten and eleven students and had great difficulty."'^(Id at 7.)
This Court may not "substitute [its] own notions of sound educational policy for those of

the school authorities." Rowlev. 458 U.S. at 206. ft lias therefore cabined its analysis to the balance

of objective evidence in the record on the challenged portion ofthe lEP: the recommendation that

According to testimony heard by the IHO, there was at some point a question as to whether J.R. would be able to
remain at MMFS for fourth grade because of behavioral issues he exhibited at the school in his earlier years there,
(IHO Hr'g Trans. 87:14-16), which makes the inference urged by DOE even less straightforward.
"Indeed, according to Schneider, it was partly as a result of J.R.'s work with outside therapists and the school's
recognition of"the level of[J.R.'s] expressive and receptive language and working memory struggles" that MMFS
ultimately placed J.R. in its seven-student Whittier Room for his fourth-grade year.(14 at 87:8-88:1.)
The SRO appears to attribute that conclusion by the IHO to the testimony of Beth Schneider, and further appears to
have disregarded that testimony, noting that Schneider was not present at the CSE meeting.(See SRO Decision at 7
n.2). The IHO does not specify which part of the record she relied on in concluding that J.R. struggled in classes of
10 and 11 students.(See IHO Decision at 7-8.)In any event, Schneider's testimony now constitutes part ofthe record
before the Court.

13

i

!>

J.R. spend his 2012-2013 school year in a 12:1+1 classroom. See Gagliardo.489 F.3d at 113. The
preponderance of the objective evidence available to the Court suggests that J.R. would have
struggled to learn in a 12:1+1 classroom, and would not have been "likely to make progress ...

under the proposed plan" offered in the lEP. Cerra. 427 F.3d at 195. The Court finds, therefore,

that DOE did not offer J.R. a FAPE when it recommended placing him in a 12:1+1 classroom.'^
B. Prongs Two and Three of the Burlington-Carter Test

Although the substantive inadequacy ofDOE's proposed placement"automatically entitles
the parents to reimbursement," C.F.. 746 F.3d at 79 (quoting R.E.. 694 F.3d at 190), the second
and third prongs of the Burlington-Carter Test are also satisfied here. The second prong calls for
an assessment of the private placement favored by the parent(s) ofthe disabled student. E.M.. 758
F.3d at 451. The SRO did not reach this question^ finding that J.R. had lost on the first prong and
therefore that there was no need to contemplate the second and third.(See SRO Decision at 10.)
The IHO found that J.L.'s unilateral fourth-grade placement for J.R. at MMFS was appropriate.

(See IHO Decision at 8 (concluding that, "[a]s to prong two, the record supports the parent's

position that the student requires a smaller class and that Mary McDowell is providing appropriate
services").) As noted above, the IHO typically receives deference on matters left unresolved by
the SRO. See Walczak. 142 F.3d at 129.

"A unilateral private placement is only appropriate if it provides 'education instruction
soecificallv designed to meet the unique needs of a handicapped child.'" Gagliardo. 489 F.3d at
115 (quoting Frank 0. v. Bd. of Educ. Of Hvde Park. 459 F.3d 356, 364-65 (2d Cir. 2006))

(emphasis in original). It is not sufficient that "the cliief benefits ofthe chosen school are the kind
of educational and environmental advantages and amenities that might be preferred by parents of

Having already decided that DOE failed to offer J.R. a FAPE,the Court does not reach the question of whether P.S.
8 could have implemented the lEP.
14

any child, disabled or not." Id. Here, J.L. declined a 12:1+1 classroom at P.S. 8 in favor of the
seven-student Whittier Room at MMFS that, according to testimony heard by the IHO,was chosen

because it could provide a "more intimate environment" that would allow him to "function more
effectively" than he had in his larger, earlier classrooms at MMFS.(IHO Hr'g Trans. 77:6-78:7).

When it appealed the IHO's decision, DOE argued that the Whittier Room is not an appropriate
placement for J.R.(See DOE Verified Petition
.

39-45.)
i;I

i; .

The IHO summarized the level ofsupport offered by the Whittier Room,(see IHO Decision
at 3),and the record contains both documentary and testimonial evidence about the Whittier Room,
including testimony from J.R.'s Whittier Room teacher.(See J.L.'s IHO Hr*g Exhibits at 1-6;IHO

Hr'g Trans. 55:11- 68:6.) The testimony heard by the IHO included reports of J.R.'s progress in
the Whittier Room.(See IHO Hr'g Trans. 58:9-15,96:4-25). Further, according to Associate Head
of MMFS Beth Schneider,the Whittier Room program "was designed for students with expressive

and receptive language based learning disabilities who were not successful in classrooms of up to
12 students." (Id, 75:21-24.) Schneider articulated why such a program was suitable for J.R.'s

needs,(s^id,77:6-78:7), and explicitly stated that she thought the placement was appropriate for
J.R,(id at 78:17). The record adequately supports the IHO's conclusion that the Whittier Room is
appropriate for J.R., and that conclusion is therefore entitled to deference.

The third prong of the Burlington-Carter Test requires a balancing of equitable
considerations. E.M.. 758 F.3d at 451. The IHO found that the equitable considerations favor J.L,

(IHO Decision at 8), and the SRO did not reach the question,(see SRO Decision at 10). Equitable
considerations "include the parties' compliance or noncompliance with state and federal

regulations pending review, the reasonableness of the parties' positions, and like matters." Wolfe
V. Taconic-Hills Cent. Sch. Dist.. 167 F. Supp. 2d 530,534(N.D.N.Y. 2001).

15

In its appeal to the SRO,DOE argued that equitable considerations favor DOE rather than
J.L.(See DOE Verified Petition

46-49.)Specifically, DOE argued that J.L. had "little intention

of enrolling J.R. in the recommended public placement,"(id. ^ 47), and that J.L. failed to show "a
lack of financial resources to 'front' the cost of tuition" at MMFS,(Id H 48 (citation omitted)).
DOE's arguments are unpersuasive.

The record does not suggest that J.L. resisted DOE's recommended placement in bad faith;
her documented reluctance to accept the lEP's recommended placement is suggestive, if anything,
of her consistently-expressed concerns about placing J.R. in a 12:1+1 classroom. Notably, even
while reiterating those concerns in response to the Final Notice ofRecommendation,J.L. indicated
an intention to visit P.S. 8 and enroll J.R. there if she found it suitable. (See J.L. Aug. 22, 2012

Letter.) She contacted the CSE after her visit to'PiS. 8, only then definitively indicating that she
would keep J.R. at MMFS and seek an IHO decision compelling DOE to pay for J.R.'s tuition.
(See J.L. Oct. 1, 2012 Letter.) In the meantime, J.L. had made an arrangement with MMFS that
would have allowed her to withdraw J.R. from MMFS by October 1,2012, paying only $500.(See

J.L.'s IHO Hr'g Exhibits 9.) Moreover, the IHO received evidence of J.L.'s financial situation,
including testimony indicating that J.L. was unemployed at the time of the hearings, which would
make it difficult for her to pay the tuition at MMFS.(See J.L.'s IHO Hr'g Exhibits at 8, 13-14;
IHO Hr'g Trans. 97:1-98:23.)

The IHO concluded that J.L. "cooperated with the school district," and that equitable
considerations tilted in her favor.(IHO Decision af8.) The Court finds that the record adequately

supports the IHO's determination and therefore that her decision on the balance of equities is
entitled to deference. J.L. has therefore satisfied all three prongs of the Burlington-Carter Test.

16

CONCLUSION

For the foregoing reasons, J.L.'s motion for summary judgment is granted, and NYC
DOE's motion for summary judgment is denied. DOE is hereby directed to reimburse J.L. for
J.R.'s tuition expenses at MMFS during the 2012-2013 school year. That reimbursement should
, 1

be supplied directly to MMFS.

t.

! :1

E.M.. 758 F.3d at 453. The Clerk of Court is respectfully

directed to close the case.

SO ORDERED.

Dated: November

,2016

Brooklyn, New York

s/Carol Bagley Amon
Carol Bagley
United States District Judge

17