T.M. et al v. Kingston City School District

Filing 28

MEMORANDUM-DECISION and ORDER that Plaintiffs' motion for summary judgment (Dkt. No. 11) is DENIED; Defendant's cross-motion for summary judgment (Dkt. No. 15) is GRANTED; and The complaint is DISMISSED in its entirety. The Clerk of the Court is directed to enter judgment accordingly. Signed by Judge David N. Hurd on 9/18/2012. (see)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------T.M. and J.M., on behalf of T.D.M.,
Plaintiffs,
-v-

1:11-CV-605

KINGSTON CITY SCHOOL DISTRICT,
Defendant.
-------------------------------APPEARANCES:

OF COUNSEL:

SUSSMAN & WATKINS
Attorneys for Plaintiffs
55 Main Street, Suite 6
P.O. Box 1005
Goshen, NY 10924

MICHAEL H. SUSSMAN, ESQ.

SHAW & PERELSON, LLP
Attorneys for Defendant
21 Van Wagner Road
Poughkeepsie, NY 12603

MARK C. RUSHFIELD, ESQ.

DAVID N. HURD
United States District Judge
MEMORANDUM–DECISION and ORDER
I. INTRODUCTION
On May 31, 2011, plaintiffs T.M. and J.M. filed this action against defendant Kingston
City School District ("defendant" or "the District") alleging failure to provide their son, T.D.M.,
with a free appropriate public education ("FAPE") in violation of the Individuals with
Disabilities in Education Act, 20 U.S.C. §§ 1400–1491o (2006) ("IDEA"). Plaintiffs seek
reimbursement for tuition they paid to have T.D.M. attend Chapel Haven, a private out-of-

state educational facility, for the 2008–09 and 2009–10 school years. Specifically, plaintiffs
challenge the decision of a State Review Officer ("SRO"), who concluded that the District
was not required to provide a FAPE because T.D.M. was eligible to graduate in June 2008.
The District answered the complaint on July 13, 2011. It also asserts two
counterclaims, arguing that the complaint must be dismissed because the educational
program provided by Chapel Haven was not appropriate for T.D.M.'s unique needs and
equitable considerations weigh against awarding tuition reimbursement.
Plaintiffs have moved for summary judgment pursuant to Federal Rule of Civil
Procedure 56. Defendant opposes and has filed a cross-motion for summary judgment. The
motions have been fully briefed and were considered on submit.
II. FACTUAL BACKGROUND
Unless otherwise noted, the following facts are undisputed. T.D.M., born in
September 1989, is diagnosed with Pervasive Development Disorder and educationally
classified as autistic. He received academic and social skills instruction through the Autistic
Strength Purpose and Independence in Education ("ASPIE") program at the Onteora Central
School District during the 2004–05 and 2005–06 school years.1 He was placed in the ASPIE
program on the recommendation of the District's Committee on Special Education ("CSE").
The ASPIE program terminated after the 2005–06 school year. Plaintiffs unilaterally placed
T.D.M. in the Ridge School, a private school in Hyde Park, New York, for the 2006–07 and
2007–08 school years.2 The District financially supported this placement.

1

These represented T.D.M.'s ninth and tenth grades, respectively.

2

These represented T.D.M.'s eleventh and twelfth grades, respectively.
-2-

In April or May 2008, plaintiffs formally notified the District that they intended to
unilaterally place T.D.M. in Chapel Haven, a private residential school in Connecticut.3 On
May 19, 2008, plaintiffs signed a contract with Chapel Haven enrolling their son for the
2008–09 and 2009–10 school years.
The disputed facts begin in June 2008. Specifically, the parties dispute who
possessed or had access to T.D.M.'s official academic transcripts at the end of the 2007–08
school year. Plaintiffs allege that defendant failed to provide them with an official District
transcript despite multiple requests and that the District did not obtain a proper transcript
from the ASPIE program. Defendant claims that the records from ASPIE, although not
officially sealed, accurately reflected T.D.M.'s academic history in the program. Defendant
also argues that plaintiffs repeatedly refused to turn over T.D.M.'s transcript from the Ridge
School, thereby hindering the District's ability to properly determine T.D.M.'s graduation
status.4
The District's Director of Special Education, Beth Lewis-Jackson ("Lewis-Jackson"),
sent a letter to J.M. on June 18, 2008, acknowledging J.M.'s request for a District transcript
and asking for assistance in obtaining T.D.M.'s Ridge School transcript. On June 25, 2008,
the CSE met with J.M. and, by phone, the director of the Ridge School to discuss T.D.M.'s
educational progress and needs. Defendant maintains that the CSE concluded T.D.M. was
3

A "Parent Nonpublic School Placement Acknowledgment/Consent Form" indicating plaintiffs' intent
to enroll their son at Chapel Haven is dated April 1, 2008, but stamped "RECEIVED" by the District on May
28, 2008. State Review Officer R., Dkt. No. 27, District Ex. 12. (As the SRO Record is not paginated,
citations to it will be made by referencing the specific exhibits or transcripts.)
4

The District did not obtain a copy of T.D.M.'s Ridge School transcript until March 2010. During the
administrative hearing, J.M.—T.D.M.'s mother—testified that she received the official Ridge School transcript
in the spring of 2008 but did not provide a copy to the District because the District refused to give her an
official District transcript. She described this as "tit for tat basically." State Review Officer R., J.M.'s Hr'g Tr.,
211:24.
-3-

ready to graduate pending a review of his academic transcripts to confirm same. The District
requested a transcript from the Ridge School at the meeting. Plaintiffs deny that the CSE
conclusively determined T.D.M.'s graduation status at this meeting and assert that the District
did not have the necessary academic records from ASPIE or the Ridge School to make such
a determination at that time. The District did not prepare an Individualized Educational
Program ("IEP") or recommend any alternative placement for T.D.M. for the 2008–09 and
2009–10 school years—during which he attended Chapel Haven. T.D.M. was never formally
awarded a diploma from the District.
Lewis-Jackson sent written requests for T.D.M.'s Ridge School transcript to the
director of the Ridge School on August 1 and September 11, 2008. On March 13, 2009, the
District's Assistant Director of Special Education sent a letter to J.M. noting that the District
had not received a Ridge School transcript despite repeated requests. This letter also
inquired as to whether T.D.M. had been striving for a Regents or local diploma. On
November 20, 2009, Lewis-Jackson sent a letter to the New York State Office of Vocational
and Educational Services requesting assistance in the District's attempt to secure a transcript
from the Ridge School. This letter noted that in June 2008 the director of the Ridge School
had advised that T.D.M. accrued enough credits for a high school diploma, but the Ridge
School would not provide a transcript because the parents had not paid the full tuition.
In December 2009, plaintiffs filed a timely due process complaint with the District
alleging that it failed to provide a FAPE and refused to provide T.D.M.'s student records.
Plaintiffs requested an impartial hearing and sought reimbursement for the tuition paid to
Chapel Haven for the 2008–09 and 2009–10 school years. Plaintiffs also sought T.D.M.'s
official District records.
-4-

In March 2010 a two-day hearing was conducted by an Impartial Hearing Officer
("IHO"). During the hearing, Lewis-Jackson and the principal of Kingston High School, Marie
Anderson ("Anderson"), reviewed T.D.M.'s transcripts.5 Both concluded that he had earned
enough credits for a Regents diploma by June 2008. Anderson specifically testified that
twenty-two credits are required for a Regents diploma, and T.D.M. had earned twenty-three
by June 2008. She further noted T.D.M. had passed four Regents exams, which was
sufficient for a Regents diploma.
In a written decision dated November 12, 2010, the IHO determined that T.D.M. did
not actually graduate prior to the 2008–09 school year, the District failed to provide him with
a FAPE, and Chapel Haven met his educational needs. The IHO further concluded that
equitable considerations supported an award of full reimbursement for the two years he
attended Chapel Haven because plaintiffs cooperated with the CSE and provided adequate
notice of their intent to place T.D.M. in Chapel Haven.
The District appealed the IHO's decision. On February 3, 2011, an SRO issued a
decision annulling the IHO's determination. The SRO concluded that the District was not
required to provide a FAPE because T.D.M. "did attain graduation status prior to the
2008–09 school year," plaintiffs "significantly interfered" with the District's determination of
T.D.M.'s eligibility to graduate by intentionally withholding his Ridge School transcript, and
plaintiffs failed to provide notice prior to enrolling their son in Chapel Haven for the 2009–10
school year. State Review Officer R., SRO Decision, 6–9.

5

When the administrative hearing began, all parties possessed the transcripts from the ASPIE
program and the Ridge School.
-5-

III. DISCUSSION
In their motion for summary judgment, plaintiffs argue that they are entitled to full
reimbursement for tuition paid to Chapel Haven because: (1) T.D.M. did not actually
graduate prior to the 2008–09 school year, and the District did not notify plaintiffs that he was
eligible to graduate at that time; (2) the District was obligated to provide a FAPE until T.D.M.
either received a diploma or reached the age of twenty-one; (3) equitable considerations
favor an award of reimbursement; and (4) Chapel Haven provided an appropriate
educational setting for T.D.M.
In opposition to plaintiffs' motion, and in support of its cross-motion, the District
asserts that: (1) T.D.M. attained graduation status prior to the beginning of the 2008–09
school year, and it was thus not obligated to provide a FAPE thereafter; (2) equitable
considerations do not favor tuition reimbursement; (3) plaintiffs did not provide adequate
notice of their intent to place T.D.M. in Chapel Haven for the 2009–10 school year; and (4)
plaintiffs have not established that Chapel Haven was an appropriate, least-restrictive
environment for T.D.M.'s unique educational needs.
A. Summary Judgment in IDEA Cases—Legal Standard
Actions brought in federal court pursuant to the IDEA "generally are resolved by
examination of the administrative record in a summary judgment procedural posture." J.R. v.
Bd. of Educ., 345 F. Supp. 2d 386, 394 (S.D.N.Y. 2004). However, they employ a different
legal standard than traditional summary judgment motions because "the existence of a
disputed issue of material fact will not defeat the motion." Id. Instead, district courts
reviewing administrative decisions under the IDEA must determine whether the decision is
supported by "the preponderance of the evidence," taking into account the administrative
-6-

record and any further evidence presented by the parties. 20 U.S.C. § 1415(i)(2)(C); Grim v.
Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 380 (2d Cir. 2003). The Supreme Court has
explained that the preponderance of the evidence standard "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." Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 102 S. Ct. 3034,
3051 (1982).
Accordingly, an SRO's decision that "is reasoned and supported by the record" should
not be disturbed. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 114 (2d Cir. 2007).6
A district court must give "due weight" and grant "substantial deference" to the findings of a
state administrative body on issues of educational policy, especially where the court's
analysis is based solely on the same evidence in the administrative record. See Cerra v.
Pawling Cent. Sch. Dist., 427 F.3d 186, 191 (2d Cir. 2005); Grim, 346 F.3d at 381; M.S. ex
rel. S.S. v. Bd. of Educ., 231 F.3d 96, 105 (2d Cir. 2000), abrogated on other grounds by
Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 126 S. Ct. 528 (2005). However, factual
findings that are unsupported or controverted by the record may be rejected. Weaver v.
Millbrook Cent. Sch. Dist., 812 F. Supp. 2d 514, 521 (S.D.N.Y 2011) (internal quotation
marks omitted). Moreover, the "due weight" that must ordinarily be given to the findings of an
administrative body is not implicated where the body's decision concerns an issue of law
instead of an issue of educational policy. Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114,
1122 (2d Cir. 1997).

6

Where, as here, the SRO's determination conflicts with the earlier decision by the IHO, "the earlier
decision may be afforded diminished weight." Id. at 114 n.2.
-7-

B. Eligibility for a FAPE after June 2008
Plaintiffs challenge the SRO's conclusion that the District did not owe T.D.M. a FAPE
after June 2008.
In New York, "[a] person over five and under twenty-one years of age who has not
received a high school diploma is entitled to attend the public schools maintained in the
district in which such person resides without the payment of tuition." N.Y. EDUC. LAW
§ 3202(1). Moreover, "[e]arning a Regents or local high school diploma shall be deemed to
be equivalent to receipt of a high school diploma pursuant to Education Law, section 3202(1)
and shall terminate a student's entitlement to a free public education." N.Y. COMP. CODES R.
& REGS. tit. 8, § 100.5(b)(7)(iii).
It is undisputed that T.D.M. did not actually receive a Regents or local high school
diploma after the 2007–08 school year. However, the preponderance of the evidence in the
administrative record supports the SRO's determination that T.D.M. earned a Regents
diploma by June 2008, thereby ending the District's obligation to provide a FAPE. At the
administrative hearing Lewis-Jackson and Anderson both reviewed T.D.M.'s transcripts and
testified that he was eligible to graduate with a Regents diploma in June 2008.7 Anderson
specifically noted that twenty-two credits are required for a Regents diploma, and T.D.M. had
earned twenty-three by the end of the 2007–08 school year. She further noted that T.D.M.
had passed enough Regents exams to graduate. He therefore earned a Regents diploma.

7

Plaintiffs question the accuracy of the ASPIE transcript because it did not bear an official seal.
However, in an August 15, 2008, letter written by J.M. and in their request for an impartial hearing, plaintiffs
complained about the District's refusal to accept the credits T.D.M. earned in the ASPIE program. The
implication that the District somehow erred in subsequently accepting the ASPIE credits in its evaluation of
T.D.M.'s graduation status is therefore unpersuasive. Moreover, the SRO upheld the District's determination
that the academic records indicate T.D.M. had earned sufficient credits to graduate by June 2008. As
explained above, this determination is entitled to deference.
-8-

See State Review Officer R., District Ex. 32.
As noted above, New York law specifically dictates that "earning" a Regents diploma
is "equivalent to receipt of a high school diploma," which terminates a student's entitlement to
further free public education. See N.Y. EDUC. LAW § 3202(1); N.Y. COMP. CODES R. & REGS.
tit. 8, § 100.5(b)(7)(iii). Therefore, T.D.M. was no longer entitled to a free public education
after June 2008, and plaintiffs are not entitled to tuition reimbursement for his residential
placement in subsequent school years.8
Accordingly, plaintiffs' motion for summary judgment will be denied, and defendant's
cross-motion will be granted.
C. Equitable Considerations
Moreover, equitable considerations weigh heavily against awarding plaintiffs any
tuition reimbursement. A court may order reimbursement to the parents of expenses
incurred in placing their child in a private school if the parents show that the school district
failed to provide a FAPE and the private school met the child's needs. Walczak v. Fla. Union
Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998). However, even if the parents make such a
showing, a district court may nonetheless reduce or deny reimbursement in light of equitable
considerations, such as "unreasonable" action on the part of the parents. 20 U.S.C.
§ 1412(a)(10)(C)(iii); Frank G. v. Bd. of Educ., 459 F.3d 356, 363–64 (2d Cir. 2006) (noting
that equitable considerations relating to the parents' conduct are relevant "because the
authority to grant reimbursement is discretionary").

8

In light of this determination, it is unnecessary to consider whether plaintiffs provided the District
with adequate notice of their intent to place T.D.M. in Chapel Haven or whether Chapel Haven was an
appropriate, least-restrictive environment for his unique educational needs.
-9-

Plaintiffs obtained an official copy of T.D.M.'s Ridge School transcript in the spring of
2008. They unilaterally placed T.D.M. in Chapel Haven—and signed a two-year contract with
the private school—before the CSE even met in June 2008 to discuss T.D.M.'s educational
progress and further needs. T.D.M.'s graduation eligibility was discussed at the CSE
meeting but not finally decided because the District did not have all of the necessary
academic records. In her August 15, 2008, letter to Lewis-Jackson, J.M. acknowledged as
much by noting: "During the last CSE meeting in June, the District stated that it was going to
have a Kingston guidance counselor review the Onteora [ASPIE] transcripts and determine
whether [T.D.M.] can graduate." State Review Officer R., Due Process Compl. Notice, 4.
The District repeatedly requested the Ridge School transcript from plaintiffs and the
Ridge School director. Despite these numerous documented requests, and a plea to the
New York State Office of Vocational and Educational Services for assistance in obtaining the
Ridge School transcript, the District was not provided with a copy until March of 2010. J.M.
knew that the District had requested the transcript and admitted to intentionally withholding it.
This unreasonably prevented the District from making a proper determination as to T.D.M.'s
graduation status or developing an updated IEP after the 2007–08 school year. Had the
District obtained the transcript in June 2008 when it was first requested, it would have been
clear that T.D.M. had earned a Regents diploma—thus ending the District's obligation to
provide him with a FAPE.
In short, the administrative record supports, by a preponderance of the evidence, the
SRO's conclusion that the plaintiffs significantly interfered with the District's ability to
determine whether T.D.M. was eligible to graduate after the 2007–08 school year. Such
unreasonable conduct weighs against awarding tuition reimbursement. See M.S. v. Mullica
- 10 -

Twp. Bd. of Educ., 485 F. Supp. 2d 555, 568 (D.N.J. 2007) (denying reimbursement where
the parents "refused to cooperate with the [school district] to such an extent that the [school
district] was unreasonably prevented from creating an IEP"), aff'd, 263 F. App'x 264 (3d Cir.
2008).
IV. CONCLUSION
The SRO's determination that T.D.M. had earned a Regent's diploma by June 2008 is
supported by a preponderance of the evidence in the administrative record. The SRO's
decision is thus entitled to substantial deference and will not be disturbed. T.D.M. earned a
Regent's diploma by the end of the 2007–08 school year, therefore ending the District's
obligation to provide him with further free public education. Plaintiffs are not entitled to tuition
reimbursement for the 2008–09 and 2009–10 school years.
Therefore, it is
ORDERED that
1. Plaintiffs' motion for summary judgment (Dkt. No. 11) is DENIED;
2. Defendant's cross-motion for summary judgment (Dkt. No. 15) is GRANTED; and
3. The complaint is DISMISSED in its entirety.
IT IS SO ORDERED.
The Clerk of the Court is directed to enter judgment accordingly.

Dated: September 18, 2012
Utica, New York.

- 11 -