E.M. et al v. New York City Department Of Education, et al
Filing
27
OPINION re: (17 in 1:15-cv-01895-TPG) MOTION for Summary Judgment filed by J.M., E.M., (21 in 1:15-cv-01898-TPG) CROSS MOTION for Summary Judgment filed by New York City Department Of Education, Carmen Farina, (20 in 1:15-cv-01895-T PG) CROSS MOTION for Summary Judgment filed by New York City Department Of Education, Carmen Farina, (18 in 1:15-cv-01898-TPG) MOTION for Summary Judgment filed by J.M., E.M. For the reasons discussed above, for both the 2011-12 sch ool year and the 2012-13 school year, plaintiffs' motion for summary judgment is granted and defendants' motion for summary judgment is denied. The Court orders defendants to reimburse M.M.'s Cooke tuition and paraprofessional costs fo r the 2011-12 school year and 2012-13 school year. Additionally, pursuant to 20 U.S.C. §1415(i)(3)(B), the Court may award reasonable attorneys' fees and costs to plaintiffs. The Court directs the parties to confer regarding attorneys' ; fees in an effort to reach an agreement. If the parties are unable to agree, they shall submit a proposed briefing schedule on the issue for the Court's approval. This opinion resolves the motions listed at docket numbers 17 and 20 for case n umber 15-cv-01895, and docket numbers 18 and 21 for case number 15-cv-01898. The Clerk of Court is directed to terminate these motions and close both cases. (As further set forth in this Order.) (Signed by Judge Thomas P. Griesa on 9/30/2016) (kko)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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E.M. and J.M., on behalf of their child,
M.M.,
Plaintiffs,
15-cv-01895
15-cv-0 1898
V.
NEW YORK CITY DEPARTMENT OF
EDUCATION and CARMEN FARINA, in
her official capacity as Chancellor of the
New York City Department of Education,
OPINION
Defendants.
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Plaintiffs E.M. and J.M., on behalf of their child M.M., brought these
actions (now consolidated) against defendants New York City Department of
Education ("DOE") and Carmen Farina, in her official capacity as chancellor of
the DOE, on March 12, 2015, pursuant to the Individuals with Disabilities
Education Act ("IDEA"), 20 U.S.C. §1400, et seq. Plaintiffs allege that
defendants failed to provide M.M. with a free appropriate public education
("FAPE") for both the 2011-12 and 2012-13 school years. During each of these
school years plaintiffs rejected the DOE's public school placement for M.M.,
enrolled M.M. at a private school, and sought tuition reimbursement from the
DOE. Both years, an Impartial Hearing Officer ("IHO") granted plaintiffs'
request for reimbursement. The DOE appealed the IHO decisions and, each
time, a State Review Officer ("SRO") reversed the IHO's conclusion and vacated
1
the order for reimbursement. Plaintiffs now seek to overturn these SRO
decisions. The parties have cross-moved for summary judgment. For the
reasons stated below, the Court grants plaintiffs' motion and denies
defendants' motion.
BACKGROUND
I. Legal Framework
The IDEA ensures "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). "To ensure that qualifying children receive a FAPE, a school
district must create an individualized education program ('IEP1 for each such
child." R.E. v. New York City Dep't of Educ., 694 F.3d 167, 175 (2d Cir. 2012).
The IEP must describe the specially designed instruction and services that will
enable the child to meet stated educational objectives and it must be
reasonably calculated to provide educational benefits to the child. M. W ex rel.
S. W. v. New York City Dep't of Educ., 725 F.3d 131, 135 (2d Cir. 2013).
In New York State, a local Committee on Special Education ("CSE")
creates an IEP for each disabled student in the CSE's school district. N.Y.
Educ. Law §4402(1)(b)(1); F.O. v. New York City Dep't of Educ., 976 F. Supp. 2d
499, 505 (S.D.N.Y. 2013). "CSEs are comprised of members appointed by the
local school district's board of education, and must include the student's
parent(s), a regular or special education teacher, a school board representative,
2
a parent representative, and others." R.E., 694 F.3d at 175 (citing N.Y. Educ.
Law §4402(1)(b)(1)(a)). The CSE provides general placement information in the
IEP but does not identify the specific school site where the student will be
assigned. Scott ex rel. C.S. v. New York City Dep't of Educ., 6 F. Supp. 3d 424,
428 (S.D.N.Y. 2014). The DOE informs the student's parents of the particular
school site through a final notice of recommendation ("FNR") at a later date. Id.
Parents who believe that the state has failed to provide their child with a
FAPE "may unilaterally place their child in a private school at their own
financial risk and seek tuition reimbursement." Id. If granted, the
reimbursement is for expenses that the school district "should have paid all
along and would have borne in the first instance had it developed a proper
IEP." T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252
(2d Cir. 2009).
To obtain retroactive tuition reimbursement, a parent must first file a
"due process complaint" with the DOE that challenges the IEP's compliance
with the IDEA. R.E., 694 F.3d at 175. After the complaint is filed, New York law
provides for a hearing before an IHO during which the state has the burden of
proving the adequacy of the proposed IEP and the parent seeking tuition
reimbursement for an alternative placement bears the burden of proving that
the alternative placement is appropriate. F.O., 976 F. Supp. 2d at 506 (citing
N.Y. Educ. Law §4404(1)). Either party may appeal the IHO's decision to an
SRO. N.Y. Educ. Law §4404(2). Additionally, either party may challenge the
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SRO's decision in state or federal court. 20 U.S.C. §1415(i)(2)(A); N.Y. Educ.
Law §4404(3)(a).
II. Facts and Procedural History
A. Overview
Plaintiffs E.M. and J.M. are the parents of M.M. At the beginning of the
2011-12 school year, M.M. was fifteen years old. At the beginning of the 201213 school year, M.M. was sixteen years old. M.M. has been diagnosed with
cerebral palsy. She has severe cognitive delays and speech/language deficits.
She is non-ambulatory, confined to a wheelchair, and requires assistance for
routine tasks. In both 2011 and 2012, M.M. was classified by the DOE as a
student with a disability having an orthopedic impairment.
From second grade through the end of middle school, the DOE placed
M.M. in special classes with a 12:1 student-teacher ratio at public schools.
During the 2010-11 school year, when M.M. was in ninth grade, a dispute
between the parties was developing about M.M.'s education and she was
enrolled at the Cooke Center Academy ("Cooke"), a private school. At Cooke,
M.M. attended classes of up to twelve students. She also received full-time
paraprofessional services, counseling, occupational therapy, physical therapy,
and speech/language therapy.
B. 2011-12 School Year
On April 1, 2011, the local CSE convened a meeting to develop M.M.'s
IEP for the 2011-12 school year. The CSE recommended that M.M. be placed in
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a special class with a 15:1 student-teacher ratio for 25 periods per week at a
public community school with related services including counseling,
occupational therapy, physical therapy, speech/language therapy, and a 1:1
health paraprofessional. Plaintiffs' counsel wrote a letter to the DOE on June
10, 2011 noting that plaintiffs disagreed with the CSE's IEP, and stating that
plaintiffs intended to unilaterally place M.M. at Cooke and seek
reimbursement. On June 28, 2011, plaintiffs filed a due process complaint
with the DOE alleging that the DOE had denied M.M. a FAPE.
On July 26, 2011, J.M. executed an enrollment agreement with Cooke for
M.M.'s attendance during the 2011-12 school year. Pursuant to that contract,
J .M. agreed to pay $48,500 in tuition plus $28,000 for a paraprofessional. The
contract further provided that J.M. would not be personally liable for the
tuition and paraprofessional cost if she could receive funding from the DOE.
By FNR dated August 9, 2011, the DOE informed plaintiffs that, in
accordance with the IEP, it recommended M.M. be placed at the Murry
Bergtraum High School for Business Careers ("Murry Bergtraum"), which is a
public school. Plaintiffs rejected the DOE's recommendation that M.M. be
placed at Murry Bergtraum and they unilaterally enrolled her at Cooke.
Plaintiffs then filed an amended due process complaint with the DOE on
November 30, 2011.
The IHO assigned to adjudicate plaintiffs' claim for private school tuition
reimbursement held multiple hearings between August 2011 and May 2012.
The IHO issued her decision on June 18, 2012 and concluded that plaintiffs
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were entitled to reimbursement for M.M.'s enrollment at Cooke for the 2011-12
school year. In reaching her decision, the IHO disagreed with the CSE's
recommendation of a 15:1 program for M.M. The. IHO cited testimony by
Jacqueline Giurato, a DOE representative, who testified that a 12:1 program
does not exist at the high school level. (I-Tr. 296:25-297:8). 1 Based on this and
related testimony, the IHO held that "the CSE changed M.M.'s class size
recommendation from 12:1 to 15:1 simply because she was now a high-school
aged student and the DOE's high schools do not have 12:1 classes." (I-IHO at
5).
Moreover, the IHO noted that the DOE's placement included some
classes in a general education setting even though "the IEP prepared by the
CSE acknowledges that M.M. cannot be educated in the general education
classroom." (I-IHO at 5). The IHO also observed that Murry Bergtraum "has
limited physical therapy and does not provide occupational therapy," which
"are integral parts of M.M.'s special education program." (I-IHO at 5). Thus, in
the IHO's view, the DOE did not meet its burden of proving that it offered M.M.
a FAPE for the 2011-12 school year.
Next, the IHO found that plaintiffs met their burden of proving that
Cooke was an appropriate placement for M.M. Finally, the IHO concluded that
equitable factors favored reimbursement and ruled that plaintiffs were entitled
Record citations marked "I" refer to materials from the 2011-12 school year,
and citations marked "II" refer to materials from the 2012-13 school year.
1
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to tuition reimbursement for the cost of M.M. 's enrollment at Cooke for the
2011-12 school year.
Defendants appealed the IHO's decision on July 23, 2012. In a decision
dated November 14, 2014, the SRO reversed the IHO, holding that the DOE
met its burden of proving that it offered M.M. a FAPE for the 2011-12 school
year. The SRO concluded that a 15:1 special class placement was appropriate
for M.M. because, among other reasons, "the student's academic skills were
similar to other students that would attend a 15:1 setting." (1-SRO at 8).
Additionally, the SRO found that, "unlike students in a 12:1 + 1 special class
placement, the student did not present with a learning disability or a speech or
language impairment." (1-SRO at 8).
The SRO also held that plaintiffs' argument that the DOE would not be
able to implement the IEP at Murry Bergtruam was speculative in light of the
fact that they had unilaterally enrolled M.M. at Cooke. The SRO noted,
however, that even if plaintiffs were permitted to make speculative claims, the
evidence did not demonstrate that the DOE would have failed to properly
implement the IEP. Because the SRO found that the DOE provided M.M. with a
FAPE, the SRO did not reach the issue of whether Cooke was an appropriate
placement or whether equitable factors favored reimbursement.
Plaintiffs appealed the SRO's reversal of the IHO decision regarding the
2011-12 school year to the federal district court in a complaint dated March
12, 2015.
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C. 2012-13 School Year
The CSE convened once again on March 8, 2012 to conduct M.M.'s
annual review and develop an IEP for the 20 12-13 school year. The CSE
recommended that M.M. be placed in special classes with a 15:1 studentteacher ratio for math, English language arts, social studies, and sciences at a
community school. Other classes, however, would be in a general education
setting. The IEP also called for M.M. to receive related services consisting of
speech/language therapy, physical therapy, occupational therapy, and
counseling services. Additionally, the CSE recommended a 1: 1 health
paraprofessional and two sessions per week of special education teacher
support services for math.
By FNR dated July 31, 2012, the DOE informed M.M.'s parents that it
had assigned her to Marta Valle High School ("Marta Valle"). M.M.'s parents
disagreed with this placement and the 15:1 student-teacher ratio adopted by
the CSE. In a letter dated August 24, 2012, M.M.'s parents notified the DOE of
their intention to again unilaterally place M.M. at Cooke and seek tuition
reimbursement. J.M. executed an enrollment contract with Cooke that required
her to pay $48,500 for tuition and $28,500 for a paraprofessional. Plaintiffs
filed a due process complaint on September 7, 2012.
Once again, an IHO was assigned to adjudicate the matter. Hearings
before the IHO concluded on March 14, 2013. In a decision dated April 18,
2013, the IHO ruled in favor of plaintiffs. The IHO ordered the DOE to fund
M.M.'s placement at Cooke for the 2012-13 school year, including the cost of a
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paraprofessional. In his decision, the IHO ruled that the DOE failed to offer
M.M. a FAPE because she requires full-time special education classes.
Moreover, the IHO held that the DOE failed to prove that a 15:1 class was
appropriate for M.M. The IHO also found that Cooke was a proper placement
for M.M. and that the equities favored plaintiffs.
The DOE appealed the IHO's decision, and in a decision dated November,
17, 2014, an SRO reversed. The SRO held that the CSE reviewed appropriate
records in developing M. M. 's IEP. Further, the SRO concluded that the classes
and services recommended in the IEP for the 2012-13 school year "aligned with
the student's performance profile and were reasonably calculated to enable the
student to receive educational benefits, and thus, offered the student a FAPE."
(II-SRO at 8). Again, the SRO found plaintiffs' arguments regarding the
recommended public school site speculative because M.M. never attended the
school listed in the FNR.
Plaintiffs appealed the SRO's reversal of the IHO decision regarding the
2012-13 school year to the federal district court in a complaint dated March
12, 2015.
DISCUSSION
I. Standard of Review
A. Summary Judgment Standard
The parties have filed cross-motions for summary judgment. A motion for
summary judgment in an IDEA case, however, is "in substance an appeal from
an administrative determination." M.H. v. New York City Dep't of Educ., 685
9
F.3d 217, 226 (2d Cir. 2012). Thus, it requires "more than an inquiry into
possible disputed issues of fact," Lillbask ex rel. Mauclaire v. Conn. Dep't of
Educ., 397 F.3d 77, 83 n.3 (2d Cir. 2005), because in an IDEA case, a disputed
issue of material fact will not necessarily defeat a motion for summary
judgment, Scott, 6 F. Supp. 3d at 434. The Court "in such cases conducts an
independent judicial review" of the appealed decision. A.M. ex rel. Y.N. v. New
York City Dep't of Educ., 964 F. Supp. 2d 270, 277 (S.D.N.Y. 2013).
Nonetheless, "the role of the federal courts in reviewing state educational
decisions under the IDEA is circumscribed." Gagliardo v. Arlington Cent. Sch.
Dist., 489 F.3d 105, 112 (2d Cir. 2007). While this Court bases its decision on
the preponderance of the evidence, 20 U.S.C. §1415(i)(2)(C)(iii), it must also give
"due weight" to the administrative proceedings, Bd. of Educ. of Hendrick
Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206 (1982). The Second
Circuit has held that "[w]here the IHO and SRO disagree, reviewing courts are
not entitled to adopt the conclusions of either state reviewer according to their
own policy preferences or views of the evidence; courts must defer to the
reasoned conclusions of the SRO as the final state administrative
determination." M.H., 685 F.3d at 246. If, however, "the SRO's determinations
are insufficiently reasoned ... , and in particular where the SRO rejects a more
thorough and carefully considered decision of an IHO, it is entirely appropriate
for the court, having in its turn found the SRO's conclusions unpersuasive
even after appropriate deference is paid, to consider the IHO's analysis." Id.
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B. Burlington/Carter Test
A claim for tuition reimbursement under the IDEA is analyzed using a
three-pronged test, known as the "Burlington/ Carter test." See Scott, 6 F. Supp.
3d at 436. This test considers (1) whether the school district's proposed IEP
was inappropriate, (2) whether the parents' unilateral placement was
appropriate, and (3) equitable factors. C.F. ex rel. R.F. v. New York City Dep't of
Educ., 746 F.3d 68, 76 (2d Cir. 2014); F.O., 976 F. Supp. 2d at 512. Tuition
reimbursement is generally warranted if the IEP was inappropriate and the
private school was appropriate to the child's needs. L.K. ex rel. Q v. Ne. Sch.
Dist., 932 F. Supp. 2d 467, 486 (S.D.N.Y. 2013). Under the third prong, "the
district court enjoys broad discretion in considering equitable factors relevant
to fashioning relief." Gagliardo, 489 F.3d at 112.
II. Claims for Tuition Reimbursement
A. Appropriateness of the IEPs
"When a State's decision under the IDEA is challenged in federal court, a
court conducts a review of both the procedural and substantive adequacy of
the underlying decision." B.O. v. Cold Spring Harbor Cent. Sch. Dist., 807 F.
Supp. 2d 130, 134 (E.D.N.Y. 2011). The school district's procedure was
adequate if it complied with the procedures set forth in the IDEA, R.E., 694
F.3d at 190, and its decision was substantively adequate if it was "reasonably
calculated to enable the child to receive educational benefits," Rowley, 458 U.S.
at 206-07. While "[s]ubstantive inadequacy automatically entitles the parents
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to reimbursement," procedural violations "only do so if they impeded the child's
right to a [FAPE], significantly impeded the parents' opportunity to participate
in the decisionmaking process, or caused a deprivation of educational
benefits." R.E., 694 F.3d at 190. Here, plaintiffs allege that defendants
committed both procedural and substantive errors in developing M.M.'s IEPs
for the 2011-12 and 2012-13 school years. These violations, according to
plaintiffs, denied M.M. a FAPE.
1. Procedural Adequacy
The procedures used by the DOE in developing M.M.'s IEPs for both the
2011-12 and 2012-13 school years were inadequate. These procedural
violations denied M.M. a FAPE. A CSE's procedures are only adequate if they
give the parents of a child with a disability an opportunity to participate in the
development of the IEP. 20 U.S.C. §1415(b)(1). If a plan "is predetermined by
the state" (i.e., the school district has an unofficial policy of not offering certain
programs), it is procedurally flawed. E.G. v. City Sch. Dist. of New Rochelle, 606
F. Supp. 2d 384, 388 (S.D.N.Y. 2009) (citing Deal v. Hamilton Cnty. Bd. of
Educ., 392 F.3d 840, 857-58 (6th Cir. 2004)).
At one of the IHO hearings regarding the 2011-12 reimbursement claim,
Ms. Giurato, the DOE representative, testified that a 12:1 program does not
exist at the high school level in the DOE's community schools. Specifically, Ms.
Giurato stated, "[t]here is no 12:1:1 in a community school. It would have to be
in a District 7 5 program, and the 12: 1: 1 in a District 7 5 program is for children
who [have a learning disability]." (1-Tr. 206:6-9). Since these students were
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typically "reading on a first to second grade level," (1-Tr. 206: 19), while M.M.
was reading on a fourth grade level, M.M. was not a good fit for the District 75
program. Ms. Giurato testified that although there is no 12:1 program in the
community high schools, "[t]he 12:1 in the elementary school, middle school, is
the equivalent of the 15:1 in the high school." (1-Tr. 207:3-5).
The IHO presiding over the dispute for the 2011-12 school year was not
persuaded by this testimony, writing that it was "conclusory" and "not
convincing." (1-IHO at 5). The IHO held "[i]t is clear that the CSE changed
M.M.'s class size recommendation from 12:1 to 15:1 simply because she was
now a high-school aged student and the DOE's high schools do not have 12:1
classes." (1-IHO at 5).
The SRO reviewing the case for the 2011-12 school year disagreed,
noting that Ms. Giurato also testified that the CSE "recommended a 15:1
special class placement on the IEP because the student's academic skills were
similar to other students that would attend a 15:1 setting." (1-SRO at 8). The
SRO went on to say "[c]ontrary to the parents' contention that the student's
special education needs would be better served in a 12:1 + 1 special class
placement, the district representative indicated that the ... CSE rejected that
placement option because the student exhibited higher academic skills than
students in a 12:1 + 1 special class placement." (1-SRO at 8).
Plaintiffs now ask the Court to reject the SRO's conclusion and reinstate
the IHO's conclusion. Specifically, plaintiffs allege that the 2011-12 IEP was
procedurally inadequate because "the DOE's representatives came into the CSE
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meeting having already concluded that M.M. would be placed in a 15:1
program irrespective of her educational needs." (Pls.' Mot. for Summ. J. at 15).
Defendants, on the other hand, urge the Court to adopt the SRO's finding on
this issue, pointing out that (1) the SRO's decision deserves deference, and (2)
M.M. 's "skills were similar to those of other students placed in 15:1 special
classes and too high for placement in a District 75 special school program such
as 12:1:1." (Defs.' Cross-Mot. for Summ. J. at 15-16). Plaintiffs' argument on
this particular point is that "[b]ecause the DOE established a 12:1:1 program
for only the students with the most severe learning disabilities, and not
necessarily all students whose needs require it, it [is] not surprising that M.M.'s
'academics are higher than the profile of the students in a 12:1:1 class."' (Pls.'
Mot. for Summ. J. at 17).
The Court holds that M.M. was denied a FAPE on procedural grounds
because the CSE would apparently never recommend a 12:1 class for a tenthgrade student like M.M. even if all evidence supported this type of placement.
On cross-examination, Ms. Giurato was asked, "So if the CSE found 12
appropriate students to go into a 12:1 class, it could never happen?" (I-Tr.
297:9-11). Ms. Giurato answered, "I don't believe so. In my understanding it's a
15:1 ... for the high school." (I-Tr. 297: 12-13). Thus, the Court adopts the
IHO's conclusion that, for the 2011-12 school year, "[t]he decision to change
the staffing ratio from 12:1 to 15:1 was not based on M.M.'s individual and
unique special education needs." (I-IHO at 5). Since one explicit purpose of the
IDEA is to ensure that children with disabilities are offered a program
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"designed to meet their unique needs," 20 U.S.C. §1400(d)(1)(A), M.M. was
denied a FAPE for the 2011-12 school year.
The Court disregards the SRO's finding for the 2011-12 school year that
the CSE's recommendation of a 15:1 class was based on M.M.'s academic
performance because the SRO did not consider the fact that a 12: 1 program
did not exist at a community high school. While the SRO was persuaded by Ms.
Giurato's testimony that a 12:1 placement option was considered but rejected
because M.M. "exhibited higher academic skills" than other students in these
classes, the Court need not defer to this conclusion because it was not
adequately reasoned. Since the DOE had only established 12:1 classes in
District 75 programs for students with heightened learning disabilities, it
follows that students with other degrees of learning impairments would
necessarily outperform the typical student in such a 12:1 class and, thus,
never be recommended for a 12:1 placement. Because the SRO failed to analyze
this issue, and did not mention that a 12:1 high school class did not exist, the
Court adopts the IHO's more carefully considered decision instead.
Defendants argue that plaintiffs' predetermination argument is waived
because it was not raised in plaintiffs' due process complaints. Defendants also
claim "neither the IHO nor the SRO in either of the proceedings addressed the
issue, and the Court has no record for review." (Defs.' Cross-Mot. for Summ. J.
at 20). This is incorrect. As a preliminary matter, the Court recognizes that "the
scope of the inquiry of the IHO, and therefore also of the SRO and this Court, is
limited to matters either raised in the plaintiffs' Due Process Complaint or
15
agreed to by the defendant." C.U. v. New York City Dep't of Educ., 23 F. Supp.
3d 210, 223 (S.D.N.Y. 2014); see also 20 U.S.C. §1415(f)(3)(B). This waiver rule,
however, "is not to be mechanically applied" because "the IDEA itself
contemplates some flexibility." C.F., 746 F.3d at 78. In other words, "[t]he
statute does not require that alleged deficiencies be detailed in any formulaic
manner." Id.
Here, in plaintiffs' amended due process complaint for the 2011-12
school year, plaintiffs put defendants on notice that they intended to present
evidence both that ( 1) "the District's recommended classroom staffing ratio of
15:1 [was] inappropriate for meeting [M.M.]'s needs" and (2) "the District's
proposed placement [was] procedurally defective." (I-Dist. Ex. 1). Although
plaintiffs did not specifically use the word "predetermination" in their amended
due process complaint, their allegations in the complaint clearly put
defendants on notice that plaintiffs were at least generally challenging the 15:1
staffing ratio recommended by the CSE. Then, on direct examination at a
hearing before the IHO, the DOE's representative revealed that there is no 12:1
class in a community school. This testimony implied that the CSE's 15:1
recommendation for M.M. may have been predetermined. Plaintiffs' counsel
appropriately followed up on this point on cross examination and raised it in
plaintiffs' closing brief before the IHO. There is no indication that plaintiffs'
waived the argument by not addressing it at the proceedings below.
Moreover, as discussed above, the IHO specifically held that the CSE's
decision to change the staffing ratio from 12:1 to 15:1 was made because the
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DOE's high schools do not have 12:1 classes. Although the SRO's discussion
did not analyze this issue (which, among other reasons, gives this Court reason
to defer to the IHO's decision), the SRO noted at the outset that the IHO was
persuaded by the "lack of 12:1 special class placements at district high
schools." (1-SRO at 4). Again, while the word "predetermination" may not have
appeared in the parties' papers until later, the crux of the argument was
apparent. Thus, the DOE had notice of the claim, this Court has an ample
record for review, and the argument is not waived for the 2011-12 school year.
Turning to the 2012-13 school year, the Court once again holds that
M.M. was denied a FAPE on procedural grounds because the CSE would
presumably never recommend a 12:1 placement for M.M. even if all of the
evidence pointed toward such a recommendation. The IHO found the 15:1
placement inappropriate because, among other reasons, "no evidence was
presented to persuasively demonstrate that [M.M.] would obtain an educational
benefit in a class this large." (II-IHO at 10). The SRO reversed, holding that the
IEP for the 2012-13 school year was "reasonably calculated to enable the
student to receive educational benefits." (II-SRO at 8). But the SRO did not
specifically analyze whether the lack of a 12:1 placement option for M.M. had
any effect on the CSE's recommendation, nor did the SRO discuss plaintiffs'
procedural argument that the staffing ratio was predetermined. Thus, the
Court concludes that M.M.'s access to a FAPE was impaired on procedural
grounds for the 2012-13 school year. Again, this argument was not waived
because the due process complaint for the 2012-13 school year directly
17
challenged the 15:1 staffing ratio and claimed that a 12:1 ratio would better
address M.M.'s needs. These allegations formed the foundation of the
predetermination argument and the DOE was on notice of them from the due
process complaint. Moreover, the staffing ratio was discussed in testimony
before the IHO, and plaintiffs alleged in their closing brief for the IHO that
"[t]he DOE did not consider any program except the one it had predetermined
for [M.M.]," (II-IHO Ex. 6). Because the IDEA does not require plaintiffs'
allegations to be detailed formulaically, the predetermination argument is not
waived for the 2012-13 school year.
Accordingly, the Court holds that the DOE's procedural violations denied
M.M. a FAPE for both the 2011-12 and 2012-13 school years.
2. Substantive Adequacy
The Court holds that, in addition to receiving a procedurally inadequate
FAPE, M.M. received a substantively inadequate FAPE for both the 2011-12
and 2012-13 school years. Plaintiffs allege that the DOE's recommended 15:1
staffing ratio and proposal to place M.M. in certain general education classes
were substantively inappropriate. Defendants ask the Court to defer to the
SRO's decision for both school years, which held that the IEPs were
substantively adequate. In particular, defendants argue that the IEPs were
"reasonably calculated to enable M.M. to receive educational benefits" and
"were tailored to her unique needs." (Defs.' Cross-Mot. for Summ. J. at 14-15).
Generally, "class size and instructional programming are matters of
educational policy concerning which courts defer to a state administrative
18
officer." F.O., 976 F. Supp. 2d at 511. Thus, the Court "must defer to the SRO's
decision on matters requiring educational expertise unless it concludes that
the decision was inadequately reasoned, in which case a better-reasoned IHO
opinion may be considered instead." R.E., 694 F.3d at 189; see also B.R. ex rel.
K.O. v. New York City Dep't of Educ., 910 F. Supp. 2d 670, 675 (S.D.N.Y. 2012)
(explaining that where the SRO reverses the IHO, "the court should give
substantial deference to the SRO's views of educational policy, but less to the
SRO's factual findings or to its reasoning in general"). Here, for the reasons
discussed below, the Court does not defer to the SRO's conclusions because
they were inadequately reasoned.
For the 2011-12 school year, the IHO wrote that "[i]t was clear from the
testimony of the Parents' witnesses from Cooke that M.M. still needs the
support that is provided in a 12:1 class." (I-IHO at 5). The SRO, however, held
that a 15:1 class was appropriate, citing Ms. Giurato's testimony that M.M.'s
academic skills were similar to those of other students who would be placed in
a 15:1 class. This rationale, however, does not explain why a 15:1 class would
produce progress for M.M. in particular and how it would afford her an
opportunity for more than mere trivial advancement, as is required by the
IDEA.
Moreover, the SRO's conclusion regarding the 15:1 staffing ratio is not
supported by the record. For example, the assistant head of Cooke, Dr. Francis
Tabone, who "know[s] [M.M.] very well" and understands "the progress that
she's made over the last couple of years," (I-Tr. 485: 15-20}, testified that "[i]n
19
no way should [M.M.] be placed in a classroom size that big of 15:1. The
amount of individualized support and attention it would take just for basic
communication issues ... would require a much smaller setting," (I-Tr.
494:22-495: 1). Dr. Tabone also stated that in "[a] 15:1 class [M.M.] would just
completely get lost and not have the kind of support she would need for any
kind of meaningful academic participation and much less any growth." (I-Tr.
495:8-11). Similarly, M.M.'s English teacher at Cooke, Mary Clancy, was asked
whether M.M. could function in a class of fifteen students, and Ms. Clancy
replied, "[S]he needs more support than that .... [S]he needs a lot of adult
support to make sure she's getting the targeted skills and tracking everything
that she needs." (I-Tr. 620:24-621:7). The SRO did not specifically reference Dr.
Tabone's testimony or Ms. Clancy's testimony, but the SRO approved of a 15:1
class for M.M. based on the DOE representative's testimony that M.M.'s skills
were similar to those of other students who would attend a 15:1 class.
The SRO's decision is problematic because it did not address conflicting
testimony and failed to take into account the IHO's credibility determinations.
When the DOE representative was asked whether she had performed a
classroom observation of M.M., she said she could not remember but "must
have at some point in the past." (I-Tr. 216: 12-21). Moreover, the IHO-the
individual who presided over the hearings and was best positioned to evaluate
witness credibility-declined to give much weight to the representative's
testimony about the CSE meeting because it "appeared to be exclusively based
upon her review of the IEP prepared that day and of the CSE meeting minutes."
20
(1-IHO at 4). The Court finds the IHO's conclusion here to be well-reasoned:
"Although it is understandable that a witness who participates in a hundred or
more CSE meetings a year will not specifically remember a meeting that
occurred a year before her testimony, that lack of recollection unfortunately
reduces the reliability of the testimony." (1-IHO at 4-5).
The IHO went on to conclude that "[n]either Ms. Giurato's testimony nor
the DOE's documentary evidence was sufficient to establish that the CSE's
recommendation for placement in a 15: 1 program was reasonably calculated to
provide M.M. with the opportunity to make meaningful educational progress."
(1-IHO at 5). Because the SRO failed to parse these conflicting witness accounts
and did not analyze whether M.M. would, as Dr. Tabone testified, "completely
get lost" in a 15:1 class, the Court adopts the IHO's conclusion that M.M. was
denied a FAPE for the 2011-12 school year because a 15:1 class would not
meet her unique special education needs. See S.B. v. New York City Dep't of
Educ., 117 F. Supp. 3d 355, 373 (S.D.N.Y. 2015) (holding that an "SRO's
reliance on one district special education teacher's contention that [a student]
did not require 'any additional teaching support' over the testimony of two
teachers who knew [the student] and taught [the student] in class-without
noting the IHO's finding of credibility for or against any witness-flies in the face
of reason").
The Court holds that the IEP for the 20 12-13 school year was also
substantively inadequate based on the 15:1 staffing ratio. The IHO reviewing
the 20 12-13 recommendation by the CSE found that "no evidence was
21
presented to persuasively demonstrate that the Student would obtain an
educational benefit in a class this large." (II-IHO at 10). The SRO reversed,
writing "[i]n reaching the decision to recommend a 15:1 special class placement
at a community school ... [,] the district school psychologist testified that the
March 2012 CSE considered the student's current levels of functioning, the
parents' concern that the student take Regents courses, and the student's
[least restrictive environment]." (II-SRO at 7). The SRO, however, did not weigh
this testimony against conflicting evidence. For example, Sally Ord, who works
in student support services at Cooke, stated that she disagreed with the 15:1
recommendation because it "would not meet both [M.M.]'s academic needs ...
and also her functional emotional needs." (II-Tr. 222:25-224: 1). The SRO also
wrote that the IEP for the 20 12-13 school year was designed "to further
support the parents' request for the student to participate in Regents
assessments." (II-SRO at 7). But plaintiffs never requested that M.M. take the
Regents exam. In fact, when J.M. was asked whether a Regents diploma was
appropriate for M.M., she replied "absolutely not." (II-Tr. 276:22-277:2). 2 In
light of these issues, the Court need not defer to the SRO's conclusion that the
2012-13 IEP was substantively appropriate for M.M. Instead, the Court adopts
the IHO's finding that the IEP failed to offer M.M. a FAPE.
Plaintiffs also argue that, even if a 15:1 special class was appropriate for
M.M., the CSE's recommendations for the 2011-12 and 2012-13 school years
2
Defendants have conceded that the SRO erred on this point. (See Defs.' Cross-Mot. for Summ.
J. at 18-19).
22
were nonetheless substantively inadequate because M.M. would attend general
education classes for part of the school day. The IHOs held in favor of plaintiffs
for both school years. In the 2011-12 decision, the IHO noted that the CSE's
placement included some classes in the general education setting, even though
"the IEP prepared by the CSE acknowledge[d] that M.M. [could] not be
educated in the general education classroom." (I-IHO at 5). Similarly, in the
2012-13 decision, the IHO found that for "almost half the school day, the
Student would be placed in general education classes without any special
education supports .... Significantly, the CSE team agreed that placement in
a general education setting was inappropriate." (II-IHO at 9).
Defendants disagree with the IHO's characterization of the amount of
time M.M. would spend in general education classes each week, but
acknowledge that she "would attend general education classes for nonacademic classes such as music and art." (Defs.' Reply at 11; 12 n.8). For the
2011-12 school year, the SRO found that M.M.'s placement in certain general
education classes did not amount to a denial of a FAPE because "the district
would have been able to implement the student's IEP without substantial
deviation from its terms." (I-SRO at 13). The SRO did not specifically address
the issue for the 2012-13 school year but found that, overall, the IEP "aligned
with the student's performance profile and [was] reasonably calculated to
enable the student to receive educational benefits." (11-SRO at 8).
The Court adopts the IHOs' conclusions that the general education
placement for both school years was problematic. When asked whether M.M.
23
would succeed in a general education art class, Dr. Tabone replied, "No I don't
think she could based on her physical limitations .... If you're doing painting,
or drawing, or perspective drawing and things like that, which she's not
capable of doing, that would be inappropriate but it would also be terrible for
her to sit in a class where everyone's doing something that she cannot
participate in. That would be damaging to self-esteem .... " (I-Tr. 472:3-21).
The Court once again recognizes that it lacks the specialized knowledge
necessary to decide complex questions of educational policy; however, where,
as here, the SRO did not provide any reasoning for discounting conflicting
evidence, the Court may defer to the IHO's more thorough decision. See F.O.,
976 F. Supp. 2d at 511.
Finally, the parties dispute whether Murry Bergtraum was an
appropriate placement for the 2011-12 school year and whether Marta Valle
was an appropriate placement for the 2012-13 school year. Having already
found that the IEPs for both school years were procedurally and substantively
inadequate, the Court need not reach the issue of their implementation. The
Court notes, however, that the SRO's conclusions here would not receive
deference because of a change in Second Circuit law that occurred after the
SRO decisions were issued. For both school years, the SRO held that plaintiffs'
arguments about the assigned public school sites were speculative because
they enrolled M.M. at a private school before the DOE became obligated to
implement the IEPs. Thus, the SRO concluded for both school years that
plaintiffs could not prevail on their implementation claims because M.M. never
24
attended the proposed public school sites. 3 The SRO cited the Second Circuit's
2012 decision in R.E. v. New York City Department of Education, 694 F.3d 167,
to support these findings. But the SRO's decisions in these matters were made
before the Second Circuit's recent decision in M.O. v. New York City Department
of Education, 793 F.3d 236, 244 (2d Cir. 2015), which clarified that "R.E. does
not foreclose all prospective challenges to a proposed placement school's
capacity to implement a child's IEP." Thus, the SRO's conclusions that
plaintiffs' implementation claims fail because they are speculative would
deserve no deference in light of M.O. See, e.g., E.P. v. New York City Dep't of
Educ., No. 15-cv-0606, 2016 WL 3443647, at *8-9 (S.D.N.Y. June 10, 2016)
(finding that M.O. "makes clear that the SRO erred in her conclusion that there
are no circumstances in which parents may challenge a proposed school their
child did not attend"); W. W. & D.C. v. New York City Dep't of Educ., 160 F.
Supp. 3d 618, 627 (S.D.N.Y. 2016) (holding that an SRO's determination that
arguments concerning an assigned public school site were speculative was due
no deference because "[t]his broad interpretation of R.E., though not foreclosed
at the time the SRO rendered his decision, was rejected by the Second Circuit
inM.O.").
In sum, the Court holds that the DOE denied M.M. a FAPE for the 201112 school year and the 2012-13 school year because the IEPs for both were
substantively inadequate. Either these substantive violations, or the procedural
In the 2011-12 decision, the SRO held that, even if plaintiffs could make speculative claims,
they would nonetheless fail. (See I-SRO at 12-14). In the 2012-13 decision, however, the SRO
did not reach the merits of plaintiffs' implementation argument.
3
25
violations discussed in subsection II.A.l supra, resolve the first prong of the
Burlington/ Carter test in favor of plaintiffs.
B. Appropriateness of the Unilateral Placements
For both school years, the IHOs held that Cooke was an appropriate
placement for M.M. The SRO declined to reach the issue both times, and the
parties have not addressed the issue in their briefs. Therefore, the Court defers
to the IHOs' conclusions that Cooke was an appropriate unilateral placement.
Prong two of the Burlington/ Carter test is satisfied.
C. Equitable Factors
The IHOs also held that the equities favored reimbursement for both
school years. Again, the SRO did not reach the issue in either case, and the
parties have not raised the matter in their briefs. Accordingly, the Court defers
to the IHOs' findings for prong three of the Burlington/ Carter test and holds
that the equities favored tuition reimbursement for both school years.
CONCLUSION
For the reasons discussed above, for both the 2011-12 school year and
the 2012-13 school year, plaintiffs' motion for summary judgment is granted
and defendants' motion for summary judgment is denied. The Court orders
defendants to reimburse M.M.'s Cooke tuition and paraprofessional costs for
the 2011-12 school year and 2012-13 school year.
Additionally, pursuant to 20 U.S.C. §1415(i)(3)(B), the Court may award
reasonable attorneys' fees and costs to plaintiffs. The Court directs the parties
26
to confer regarding attorneys' fees in an effort to reach an agreement. If the
parties are unable to agree, they shall submit a proposed briefing schedule on
the issue for the Court's approval.
This opinion resolves the motions listed at docket numbers 17 and 20 for
case number 15-cv-01895, and docket numbers 18 and 21 for case number
15-cv-01898. The Clerk of Court is directed to terminate these motions and
close both cases.
SO ORDERED.
Dated: New York, New York
September 30, 2016
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Thomas P. Griesa
United States District Judge
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