M.O. et al v. The New York City Department of Education
MEMORANDUM OPINION AND ORDER: For the foregoing reasons, plaintiffs' motion for summary judgment is denied and their complaint is dismissed. SO ORDERED. (Signed by Judge Miriam Goldman Cedarbaum on 3/27/2014) (ajs)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
M.O. and G.O. Individually,
and On Behalf of D.O., a Minor,
-against12 Civ. 4619 (MGC)
THE NEW YORK CITY DEPARTMENT OF
LAWRENCE D. WEINBERG
Attorney for Plaintiffs
233 East 89th Street, 2A
New York, New York 10128
Lawrence D. Weinberg, Esq.
MICHAEL A. CARDOZO, CORPORATION COUNSEL
OF THE CITY OF NEW YORK
Attorneys for Defendant
100 Church Street, Room 2-192
New York, New York 10007
Carolyn E. Kruk, Esq.
Plaintiffs M.O. and G.O. bring this tuition reimbursement
action for the 2011-2012 school year on behalf of their son,
D.O., under the Individuals with Disabilities Education Act
(“IDEA”), 20 U.S.C. §§ 1400 et seq., against the New York City
Department of Education (“DOE”).
In June of 2011, pursuant to IDEA, a local Committee on
Special Education developed an individualized education program
(“IEP”) for D.O., classifying him as speech or language impaired
and recommending he repeat the second grade in a class with a
12:1:1 ratio of students to teacher to paraprofessional.
IEP also recommended a variety of instruction in an Integrated
Co-Teaching class, individual and group speech and language
therapy, and individual and group counseling.
Following the IEP’s development, the DOE sent D.O.’s
parents a final notice of recommendation, informing them that
D.O. was assigned to attend P.S. 213.
The parents visited the
school and told the DOE that they did not believe it was
appropriate for D.O. because, among other reasons, it did not
have a second grade class.
In July of 2011, the DOE sent D.O.’s
parents another final notice of recommendation, which assigned
D.O. to P.S. 159.
His parents were unable to visit the school
because of the summer recess but told the DOE that if an
appropriate program and placement was not offered in a timely
manner, they would enroll D.O. in a private school.
15, 2011, before D.O. attended P.S. 159 and before his parents
had visited the school, D.O.’s parents informed the DOE that he
would attend private school.
D.O. attended third grade at the
Lowell School for the 2011-2012 school year.
D.O.’s parents, pursuant to IDEA, filed a due process
complaint before an Impartial Hearing Officer (“IHO”) seeking
reimbursement of D.O.’s private tuition and other relief.
an evidentiary hearing, the IHO concluded that D.O. had been
provided a free appropriate public education (“FAPE”), as
required by IDEA.
D.O.’s parents appealed to the State Review
Officer (“SRO”), who affirmed the IHO’s decision.
to this suit, the SRO addressed the parents’ challenge to the
assigned classroom by reasoning that because the sufficiency of
a child’s educational program is determined based on the IEP
itself, if it becomes clear that the student will not be
educated under the IEP, “there can be no denial of a FAPE due to
the failure to implement” the IEP.
Because D.O. enrolled in
private school before the DOE’s obligation to implement the IEP
arose, the DOE was not required to present evidence that it
provided services in conformity with D.O.’s IEP, and “the
parents’ unsubstantiated allegations regarding what might have
happened had the student attended the public school are not a
basis for concluding that the district failed to offer the
student a FAPE by failing to implement the student’s IEP.” 1
Plaintiffs argue that the SRO erred in finding that the DOE
was not required to proffer evidence of the appropriateness of
the assigned classroom, and thus that the SRO erred in finding
that the DOE had carried its burden of proving that D.O. was
offered a FAPE.
Although district courts review SRO decisions
with deference of varying degrees, M.H. v. New York City Dep’t
of Educ., 685 F.3d 217, 241-44 (2d Cir. 2012), this aspect of
plaintiffs’ challenge -- whether a certain type of evidence is
required for the DOE to meet its burden of proof -- is reviewed
See Lillbask ex rel. Mauclaire v. Conn. Dep’t of
Educ., 397 F.3d 77, 82 (2d Cir. 2005).
The Second Circuit has held that a school district may not
rely on evidence regarding the services or teachers a child
would have had to rehabilitate an otherwise deficient IEP.
v. New York City Dep’t of Educ., 694 F.3d 167, 174 (2d Cir.
The Second Circuit explained that “an IEP must be
evaluated prospectively as of the time it was created.”
In one of the three cases consolidated before the
Second Circuit in R.E., the parents did not seriously challenge
the IEP but instead argued that the IEP would not have been
The SRO further held that even if D.O. had in fact attended the
assigned school, there was no evidence that the DOE would have
deviated from the IEP in a material way.
effectively implemented in the assigned classroom. 2
Id. at 195.
They argued that statistics from the school showed that a large
percentage of students were underserved in certain services,
including occupational therapy.
The Second Circuit affirmed the
district court’s and the SRO’s conclusion that the child was not
denied a FAPE, because “[o]ur evaluation must focus on the
written plan offered to the parents . . . .
the school district will not adequately adhere to the IEP is not
an appropriate basis for unilateral placement.”
It would be inconsistent with R.E. to require the DOE to
proffer evidence regarding the actual classroom D.O. would have
attended, where it had become clear that D.O. would attend
private school and not be educated under the IEP.
See R.C. ex
rel. M.C. v. Byram Hills Sch. Dist., No. 11 Civ. 3938 (GBD),
2012 WL 5862736, at *16 (S.D.N.Y. Nov. 16, 2012) (citing R.E.,
694 F.3d at 188).
How D.O. would have fared in the classroom at
P.S. 159 and whether his IEP would have been adequately
implemented in that classroom is a matter of speculation.
D.O.’s parents enrolled him in private school before the
classroom was available to visit, and their speculation that the
classroom would not adhere to the IEP is not an appropriate
basis for their unilateral placement.
R.E., 694 F.3d at 195.
The parents had rejected the classroom, first telling the DOE
that they would consider other classrooms but later notifying
the DOE of private school plans. Id. at 182.
The DOE’s failure to proffer evidence of what might have
happened had D.O. enrolled at P.S. 159 is not a basis for
concluding that the DOE failed to carry its burden in
demonstrating D.O. was provided a FAPE.
Plaintiffs’ citation to J.F. v. New York City Department of
Education, No. 12 Civ. 2184 (KBF), 2012 WL 5984915 (S.D.N.Y.
Nov. 27, 2012) at oral argument does not persuasively support
The plaintiffs in J.F. did argue that the child
was denied a FAPE because the specific classroom “would not
provide an environment reasonably calculated to enable [the
child] to receive educational benefits.”
Id. at *8.
Forrest’s remand of the issue to the IHO focused on procedural
requirements governing the appealability of the issue, since
neither the IHO nor the SRO had considered the issue and the
Id. at *9-
parents had failed to appeal the issue to the SRO.
Plaintiffs also argue D.O. was denied a FAPE because the
IEP itself was substantively deficient.
Plaintiffs argue that
the IEP was inadequate due to a variety of defects, most of
which were not specifically raised before the state hearing
officers and thus are not appropriate for review at this stage.
20 U.S.C. § 1415(f)(3)(B); R.E., 694 F.3d at 187-88; Garro v.
Connecticut, 23 F.3d 734, 737-38 (2d Cir. 1994).
the alleged deficiencies are without merit.
In any event,
inclusion of information in the IEP that the law does not
require to appear in the IEP.
Plaintiffs also allege
deficiencies in the IEP that the SRO thoroughly analyzed and
decided were without merit.
The SRO’s well-reasoned opinion,
which reviewed in great detail the evidence from the impartial
hearing and is in fact supported by the administrative record,
should not be disturbed.
See M.H., 685 F.3d at 241, 244.
The complaint also alleges a procedural violation of IDEA,
but plaintiffs seem to have abandoned this issue.
do not contain argument on the issue and actually note that the
DOE “may not have committed a procedural error.”
It is not
clear what facts form the basis of this claim, although the
complaint alleges that the SRO failed to decide the appeal
within the statutorily permissible time frame and that the
hearing before the IHO was adjourned without the request of
A child’s right to a FAPE is not prejudiced by
delay where a court finds that the challenged IEP was adequate.
Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381-82 (2d
Nor is a child’s right to a FAPE endangered by
delay when parents remove a child from public schooling before
challenging the IEP and there is no suggestion that they would
have altered their decision had the dispute been resolved more
Id. at 382.
Plaintiffs present no argument or
evidence that would support a finding that the delays complained
of prejudiced D.O.
For the foregoing reasons, plaintiffs’ motion for summary
judgment is denied and their complaint is dismissed.
New York, New York
March 27, 2014
MIRIAM GOLDMAN CEDARBAUM
United States District Judge
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