M.M. v. New York City Department Of Education, et al

Filing 86

MEMORANDUM AND ORDER denying 66 Motion for Summary Judgment; granting in part and denying in part 76 Motion for Summary Judgment. Plaintiff's motion for summary judgment (Dkt. No. 66) is denied. Because the record is insufficient to dete rmine whether defendants have violated C.M.'s stay-put rights under the IDEA or failed to enforce the SRO's March 26, 2015 order, defendants' motion for summary judgment (Dkt. No. 76) is denied with respect to those two claims and granted in all other respects. (As further set forth in this Order.) (Signed by Judge P. Kevin Castel on 3/30/2017) (cf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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M.M. on behalf of herself individually,
and her child,

15 Civ. 5846 (PKC)

Plaintiff,
-against-

MEMORANDUM
AND ORDER

NEW YORK CITY DEPARTMENT OF
EDUCATION, et al.,
Defendants.
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CASTEL, U.S.D.J.
Plaintiff, M.M., brings this action in her individual capacity, and as a
representative of her child, C.M., against the New York City Department of Education
(“DOE”), the New York City Board of Education, and the Chancellor of the New York City
Schools under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400,
et seq., Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Section 504”), 42
U.S.C. § 1983, and New York State law. Pursuant to previous administrative proceedings, a
State Review Officer (“SRO”) awarded C.M. compensatory education as relief for the
defendants’ failure to provide C.M. with a free appropriate public education (“FAPE”) in
violation of the IDEA. M.M appeals this award, seeking additional compensatory education
and other relief, and moves for summary judgment. Defendants cross move for summary
judgment to uphold the amount of compensatory education granted by the SRO and against
all of M.M.’s other claims.

BACKGROUND
I. The IDEA.
The IDEA requires states that receive federal funding for education to
provide students with disabilities a FAPE. 20 U.S.C. § 1412(a)(1)(A). The services that a
school must provide to ensure that a student receives a FAPE are determined by the student’s
individualized educational program (“IEP’), which is “a written statement that sets out the
child’s present educational performance, establishes annual and short-term objectives for
improvements in that performance, and describes the specially designed instruction and
services that will enable the child to meet those objectives.” R.E. v. New York City Dep’t of
Educ., 694 F.3d 167, 175 (2d Cir. 2012). “To meet its substantive obligation under the
IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress
appropriate in light of the child’s circumstances.” Endrew F. v. Douglas Cty. Sch. Dist. RE1, No. 15-827, 2017 U.S. LEXIS 2025, at *21 (Mar. 22, 2017).
The determination of whether an IEP is sufficient to meet this standard differs
according to the individual circumstances of each student. See id. at 22. For a student who
is “fully integrated in the regular classroom,” an IEP should be “reasonably calculated to
enable the child to achieve passing marks and advance from grade to grade.” Id. at 23
(quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 203-04 (1982)). For a student not fully
integrated in the regular classroom, an IEP must aim for progress that is “appropriately
ambitious in light of [the student’s] circumstances, just as advancement from grade to grade
is appropriately ambitious for most children in the regular classroom. The goals may differ,
but every child should have the chance to meet challenging objectives.” Id. at 25. This
standard is “markedly more demanding” than the one the Court rejected in Endrew F., under

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which an IEP was adequate so long as it was calculated to confer “some educational
benefit,” that is, an educational benefit that was “merely” more than “de minimis.” Id. at 17,
26.
In New York, a student’s IEP is developed by a committee on special
education (“CSE”) that is comprised of parents, teachers, and state representatives. The
IDEA also requires that states provide parents with an opportunity to object “to any matter
relating to the identification, evaluation, or educational placement of the child, or the
provision of a free appropriate public education to such child.” 20 U.S.C. § 1415(b)(6)(A).
To provide parents this opportunity to object, New York has established a
two-tier system of administrative review. In the first instance, parents who wish to challenge
a student’s IEP or placement must file a due process complaint setting forth the basis for the
challenge and requesting an impartial hearing before an Impartial Hearing Officer (“IHO”).
See N.Y. Educ. L. § 4404(1); 8 NYCRR § 200.5(i)(1)(IV). Following the hearing and
determination by the IHO, either party may appeal the decision to a SRO. See N.Y. Educ. L.
§ 4404(2). If either party is unsatisfied with the SRO’s decision, they may bring a civil
action challenging that decision in federal or state court. 20 U.S.C. § 1415(i)(2)(A); N.Y.
Educ. L. § 4404(3).
The IDEA allows an IHO or SRO to fashion an appropriate remedy for
students not provided a FAPE, and the Second Circuit has held that compensatory education
is an available remedy under the IDEA to make up for denial of a FAPE. P. ex rel. Mr. and
Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008) (upholding
compensatory education awarded by hearing officer). The award of compensatory education
“must be reasonably calculated to provide the educational benefits that likely would have

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accrued from special education services the school district should have supplied in the first
place.” Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 457 (2d Cir. 2015) (qutoing Reid ex rel.
Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005)).
IDEA actions generally are resolved by summary judgment. See, e.g., Thies
v. New York City Bd. of Educ., No. 07 cv 2000 (RMB), 2008 U.S. Dist. LEXIS 11354, at *5
(S.D.N.Y. Feb. 4, 2008); J.R. v. Bd. of Educ. of City of Rye Sch. Dist., 345 F.Supp.2d 386,
394 (S.D.N.Y. 2004).
II. Factual Record and Procedural History.
Plaintiff M.M. is the parent of C.M., a 10-year-old girl with autism. (Pl.’s
Rule 56.1 Statement of Undisputed Material Facts, October 31, 2015, Dkt. No. 31 (“Pl.’s
56.1”) ¶ 2.)
C.M. received early intervention services and thereafter received special
education services from defendants through the Committee on Preschool Special Education
that included a special education class, as well as 10 hours per week of after-school, homebased individual (“1:1”) services using the instructional strategy of Applied Behavioral
Analysis (“ABA” or “ABA Services”), and 12-month extended school year (“ESY”)
services. 1 (Pl.’s 56.1 ¶ 22.) C.M. transitioned to defendants’ CSE for the 2010-2011 SY, at
which time she entered kindergarten. (Pl.’s 56.1 ¶ 23.)
M.M alleges that the IEP that the CSE offered to C.M. for the 2010-2011 SY
did not include 1:1 home-based ABA or ESY services. (Pl.’s 56.1 ¶ 24.) M.M. filed a due
process complaint and C.M. received 1:1 home-based ABA services pursuant to a pendency
1

“Some children with disabilities need educational services not only during the regular school year, but over the
summer as well. An IEP may therefore provide for a full twelve-month educational program that includes
regular school-year services as well as ESY services over the summer.” T.M. v. Cornwall Cent. Sch. Dist., 752
F.3d 145, 152 (2d Cir. 2014).

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order. (Pl.’s 56.1 ¶ 25.) M.M. alleges that the IHO ruled in M.M.’s favor on the merits of
her complaint, finding that C.M. had been denied a FAPE. (Pl.’s 56.1 ¶ 25.)
For the 2011-2012 SY, C.M. transferred to community school P.S. 234Q,
which she currently attends. (Pl.’s 56.1 ¶ 27.) For the 2011-2012 SY, defendants offered
another IEP without 1:1 teaching services, home-based services, ABA, or ESY services.
(Pl.’s 56.1 ¶ 26.) M.M. filed another due process complaint and an IHO ruled in her favor.
(Pl.’s 56.1 ¶ 26.) In the IHO’s Findings of Fact and Decision issued on March 15, 2012 (the
“March 2012 Decision”), the IHO directed the defendants to modify C.M.’s IEP to include a
12-month program and home-based ABA services for 10 hours per week at a rate of $102 per
hour. (Pl.’s 56.1 ¶ 28.)
Defendants developed a May 2012 IEP, which was amended June 22, 2012,
and included the services ordered by the IHO in the March 2012 Decision. (Pl.’s 56.1 ¶ 29.)
M.M. filed a due process complaint challenging this IEP, and on August 22, 2012, IHO De
Leon issued an order (the “August 2012 Order”), directing defendants to provide C.M. with
10 hours per week of 1:1 home-based ABA for the 2012-2013 SY at $102 per hour, as well
as other services contained in the 2012 IEP. (Pl.’s 56.1 ¶¶ 30, 32.) IHO De Leon ruled that
M.M. could file a new due process complaint concerning claims that she had not previously
raised. (Pl.’s 56.1 ¶ 33.) M.M. filed another due process complaint for the 2012-2013 SY.
(Pl.’s 56.1 ¶ 34.) The matter resulted in a Stipulation of Settlement and Agreement (the
“Stipulation”) between M.M. and defendants dated May 30, 2013. (Pl.’s 56.1 ¶ 35.)
Pursuant to the Stipulation, separate and apart from the 10 hours per week of
home-based ABA, defendants agreed to fund 690 hours of ABA Services (the “ABA Bank”)
and independent assistive technology as well as speech and language evaluations. (Pl.’s 56.1

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¶ 36.) C.M.’s compensatory ABA Bank went into effect on July 1, 2013, and continued until
June 30, 2014. (Pl.’s 56.1 ¶ 37.)
On June 12, 2013, defendants conducted an IEP review for the 2013-2014 SY.
(Pl.’s 56.1 ¶ 42.) The 2013 IEP did not include any ABA Services, home-based services, or
1:1 special education teacher services. (Pl.’s 56.1 ¶ 44.) This IEP recommended that C.M.
attend a class with a 12:1:1 student-teacher-paraprofessional ratio in a community school
with related services and receive 12-month ESY services in a DOE Specialized School.
(Pl.’s 56.1 ¶ 45.) Defendants stopped funding C.M.’s home-based ABA services on June 30,
2013. (Pl.’s 56.1 ¶ 46.)
A.

M.M.’s Due Process Complaint and Hearing.

On July 11, 2013, M.M. filed a due process complaint (“2013 Due Process
Complaint”) under the IDEA alleging that the DOE failed to provide C.M. with a FAPE for
the 2013-2014 SY, improperly denied her 1:1 instruction, ABA Services, home-based
services, and violated her right to education in the least restrictive environment (“LRE”).
(Pl.’s 56.1 ¶ 6.) M.M. also brought claims under Section 504 and section 1983 spanning
multiple years. (Pl.’s 56.1 ¶ 8.) M.M. sought various forms of relief, including independent
educational evaluations (“IEEs”), compensatory education, assistive technology, declaratory
rulings concerning FAPE and the other claims raised in the 2013 Due Process Complaint,
and a legally valid IEP containing the last agreed upon services, as well as additional
services. (Pl.’s 56.1 ¶ 9.)
On August 15, 2013, a pendency hearing was held before IHO Roth to
determine C.M.’s stay-put program and placement. (Pl.’s 56.1 ¶ 48.) On September 27,
2013, IHO Roth issued an Interim Order on Pendency (“2013 IOP”). (Pl.’s 56.1 ¶ 49.) IHO

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Roth found in the 2013 IOP that the June 2012 IEP constituted C.M.’s stay-put placement for
the 2013-2014 SY. (Pl.’s 56.1 ¶ 55.) IHO Roth, pursuant to the 2013 IOP, directed the
defendants to fund the 10 hours per week of [Special Education Itinerant Teacher
(“SEIT”)]/ABA included on the June 2012 IEP. (Pl.’s 56.1 ¶ 56.) Neither party appealed the
2013 IOP. (Pl.’s 56.1 ¶ 57.)
As a result, during the 2013-2014 SY, and while the hearing on the 2013 Due
Process Complaint was pending, C.M. received a total of 25 hours per week of 1:1 ABA
Services: 10 hours per week via C.M.’s right to pendency and 15 hours per week from the
ABA Bank. (Pl.’s 56.1 ¶ 72.)
On November 7, 2013, IHO Roth held a hearing on M.M.’s challenge to
C.M.’s 2013 IEP. (See Pl.’s 56.1 ¶ 58.) IHO Roth ruled that she had no jurisdiction over
policies and procedures. (Pl.’s 56.1 ¶ 59.) IHO Roth then recused herself at the request of
M.M.’s counsel. (Pl.’s 56.1 ¶ 60.) Proceedings resumed before IHO De Leon at a hearing
held on April 8, 2014. (Pl.’s 56.1 ¶ 61.)
At the April 8, 2014 hearing, both parties proposed evidence on the record.
(Pl.’s 56.1 ¶ 62.) Defendants conceded that they had failed to provide C.M. a FAPE and did
not call any witnesses. (Pl.’s 56.1 ¶ 10.) Defendants argued that C.M. was not entitled to
compensatory education for defendants’ failure to provider her a FAPE because C.M. had
made progress during the 2013-2014 SY with the ABA hours from the ABA Bank and the
pendency services that she received pursuant to her stay-put placement. (Pl.’s 56.1 ¶ 73.)
At the hearing, M.M. called four witnesses, including herself. (Pl.’s 56.1 ¶
85.) Some of M.M.’s witnesses were designated as experts by the IHO. (Pl.’s 56.1 ¶ 90,
117, 155.) These experts testified extensively based on their observations of C.M.,

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interviews with C.M’s teachers, and a review of C.M.’s records. (See Pl.’s 56.1 ¶¶ 86-123,
152-59.) They testified regarding C.M.’s disabilities, how those disabilities affected her
education, and made recommendations for C.M.’s future educational needs. (See Pl.’s 56.1
¶¶ 86-123, 152-59.) M.M. testified regarding C.M.’s disabilities and C.M.’s behavior away
from school and described the past educational services C.M. had received. (See Pl.’s 56.1
¶¶ 124-51.) The IHO denied M.M.’s request to admit the report and testimony of Dr. Cecelia
McCarton, who conducted a neurodevelopmental evaluation of C.M. on the grounds that
such evidence was cumulative and would cause delay. (Pl.’s 56.1 ¶¶ 162-64)
The IHO denied M.M.’s requested relief for the 2013-2014 SY as moot and
denied M.M’s request for compensatory education on the merits, but ruled in favor of C.M.
to the extent that he ordered defendants to reimburse M.M. for the cost of C.M.’s
neurodevelopmental/psychological evaluation and that the CSE reconvene to produce a new
IEP for the remainder of the 2014-2015 SY. (Findings of Fact and Decision, November 21,
2014, Case No. 145526 (“IHO Dec.”) at 18.) The IHO did not issue a declaration or ruling
as to what set of services and placement constituted C.M.’s last agreed upon placement
following the decision, (Pl.’s 56.1 ¶ 174), and did not order that C.M.’s 10 hours per week of
ABA Services remain a part of her last agreed-upon program, (Pl.’s 56.1 ¶ 175.)
M.M. filed a partial appeal of the IHO decision to the SRO. (Pl.’s 56.1 ¶
184.) Defendants submitted an Answer, but did not cross-appeal. (Pl.’s 56.1 ¶ 13.)
B.

SRO Decision.

The SRO found that the district, rather than M.M., had the burden of proof on
the contested issues at the impartial hearing. (SRO Decision, No. 14-179, March 26, 2015
(“SRO Dec.”) at 7.) The SRO found that:

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Although the IHO stated during the impartial hearing that the
parent had the burden of proving that the compensatory
educational services sought for the student were appropriate,
the IHO’s decision reflected an appropriate analysis of the
factors that go into determining whether an award of
compensatory services is warranted, as did other comments he
made during the hearing.
(Id.) The SRO went on to state that even assuming that the IHO had misapplied the burden
of proof, the SRO’s decision was based on an independent examination of the hearing record.
(Id.)
The SRO rejected M.M.’s argument that the IHO improperly restricted the
scope or content of questioning witnesses. (Id. at 8.) The SRO upheld the IHO’s conclusion
that M.M.’s claim seeking modification of C.M.’s IEP for the 2013-2014 SY was moot, but
found that the appeal was not moot in its entirety because there was still an ongoing
controversy over compensatory education. (Id. at 9.) The SRO awarded 24 hours of
compensatory additional parent counseling and training, to be used by October 31, 2015, (id.
at 11), and directed the district to provide 1 hour of compensatory 1:1 ABA services for each
day in the 2013-2014 12-month school year, for a total of 210 hours, to be used by October
31, 2015, (id. at 13). The ABA award included the 180 day school year and 30 days during
the summer portion of the 12-month school year. (Id. at 13 n.13.) The SRO declined to
award M.M.’s request to provide C.M. with ESY services every week of the year, even
during summer months in which school was not in session. (See id.) The SRO denied
M.M.’s request for assistive technology services as a component of the compensatory
education award. (Id. at 10-11 n.9.) The SRO further ordered:
[W]hen the CSE next convenes to conduct an annual review of
the student’s program the district will be directed to consider
whether home-based educational services, the provision of
instruction using ABA methodology, or assistive technology
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devices and services are required to enable the student to
benefit from instruction and, after due consideration thereof,
provide the parent with prior written notice on the form
prescribed by the Commissioner specifically indicating
whether the CSE recommended or refused to recommend such
services on the student’s IEP and explaining the basis for the
CSE’s recommendation therein as well as the evaluative
information relied upon in reaching these determinations.
(Id. at 14.) M.M. appeals the compensatory education awarded by the SRO, alleging that the
award was insufficient to remedy defendants’ failure to provide C.M. with a FAPE, and
further appeals other claims not decided by the SRO or IHO.
LEGAL STANDARD
“[A] motion for summary judgment in an IDEA case often triggers more than
an inquiry into possible disputed issues of fact. Rather, the motion serves as a pragmatic
procedural mechanism for reviewing a state’s compliance with the procedures set forth in
IDEA and determining whether the challenged IEP is reasonably calculated to enable the
child to receive educational benefits.” Lillbask ex rel. Mauclaire v. State of Conn. Dep’t of
Educ., 397 F.3d 77, 83 n.3 (2d Cir 2005) (internal quotation marks omitted). Unlike with an
ordinary summary judgment motion, the existence of a disputed issue of material fact will
not necessarily defeat a motion for summary judgment in the IDEA context. See, e.g., T.P.
ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 (2d Cir. 2009) (per
curiam); Viola v. Arlington Central Sch. Dist., 414 F. Supp. 2d 366, 377 (S.D.N.Y. 2006).
A district court “must engage in an independent review of the administrative
record and make a determination based on a preponderance of the evidence.” M.H. v. New
York City Dep’t of Educ., 685 F.3d 217, 240 (2d Cir. 2012) (quoting Gagliardo v. Arlington
Central Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007)). “‘The role of the federal courts in
reviewing state educational decisions under the IDEA is circumscribed,’ however, and
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‘courts must bear in mind the statutory context and administrative judges’ greater
institutional competence in matters of educational policy.’” Hardison v. Bd. of Educ. of the
Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014) (quoting R.E., 694 F.3d at 189).
Federal courts “must give due weight to these proceedings, mindful that the judiciary
generally lacks the specialized knowledge and experience necessary to resolve persistent and
difficult questions of educational policy.” Id. (quoting M.H., 685 F.3d at 240); accord R.E.,
694 F.3d at 189 (“courts must bear in mind the statutory context and the administrative
judges’ greater institutional competence in matters of educational policy” and “must defer to
the SRO’s decision on matters requiring educational expertise”).
“District courts are not to make ‘subjective credibility assessment[s],’ and
cannot ‘ch[oose] between the views of conflicting experts on . . . controversial issue[s] of
educational policy . . . in direct contradiction of the opinions of state administrative officers
who had heard the same evidence.’” M.H., 685 F.3d at 240 (alterations and omissions in
original) (quoting Grim v. Rhinebeck Central Sch. Dist., 346 F.3d 377, 383 (2d Cir. 2003)).
“[T]he deference owed to an SRO’s decision depends on the quality of that
opinion.” R.E., 694 F.3d at 190. “Courts generally ‘defer to the final decision of the state
authorities, even where the reviewing authority disagrees with the hearing officer.’” M.H.,
685 F.3d at 241 (quoting A.C. ex rel. M.C. v. Bd. of Educ. of the Chappaqua Cent. Sch.
Dist., 553 F.3d 165, 171 (2d Cir. 2009)). “Deference is particularly appropriate when . . . the
state hearing officers’ review has been thorough and careful.” Id. (quoting Walczak v.
Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998)).
In determining the weight to afford an SRO decision, a district court also
considers the decision-maker’s familiarity with the evidence, including witnesses. Hardison,

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773 F.3d at 386. When the IHO and SRO reach conflicting conclusions, the courts generally
defer to the SRO as the final state decision-making authority. Id.
DISCUSSION
The SRO’s decision was thorough and well-reasoned, and is thus entitled to
deference. M.H., 685 F.3d at 241. The Court must determine whether the compensatory
education awarded by the SRO is “reasonably calculated to provide the educational benefits
that likely would have accrued from special education services the school district should
have supplied in the first place.” E. Lyme Bd. of Educ., 790 F.3d at 457 (quoting Reid, 401
F.3d at 524). This determination is at heart a matter of education methodology, an area
which the SRO has expertise the Court lacks. See id. Thus, “district court[s] must defer to
administrative determinations involving educational methodology. . . .” M.H., 685 F.3d at
243. Under these circumstances, overturning the SRO’s well-reasoned decision would
improperly “substitute [the Court’s] own notions of sound educational policy for those of the
school authorities which [it] review[s].” Id. at 240 (quoting Rowley, 458 U.S. at 206).
Defendants’ motion for summary judgment is thus granted with respect to M.M’s appeal of
the SRO’s award of compensatory education, and M.M.’s motion is denied to that extent.
M.M. also brings claims under the Section 504 and section 1983 premised on
C.M.’s deprivation of a FAPE; claims under the IDEA, Section 504, and section 1983
alleging systemic violations of the IDEA; and claims under New York state law. Some of
these claims were raised at the impartial hearing and on appeal to the SRO, but were not
decided. To the extent that the SRO made findings relevant to these claims the Court will
defer to the SRO’s findings, for the reasons stated above. To the extent that the SRO did not
make findings relevant to these claims, or which the lack of discovery or failure to develop

12

the administrative record would make evaluating M.M.’s claims based on a summary
judgment standard inappropriate, the Court evaluates the parties’ motions for summary
judgment using the same standard as it would use to evaluate a motion to dismiss under Rule
12(b)(6), Fed. R. Civ. P. Because M.M. has failed to state a claim upon which relief could be
granted under Section 504 or section 1983 for defendants’ failure to provide C.M. with a
FAPE, or for systemic violations of the IDEA under that statute, Section 504, or section
1983, or under New York State law, M.M.’s motion for summary judgment is denied and
defendants’ motion for summary judgment is granted with respect to those claims.
M.M. also brings claims under the IDEA alleging that C.M.’s stay-put rights
were violated and that defendants failed to implement the SRO order. Due to an
inadequately developed record, the Court denies both parties’ summary judgement motions
with respect to these claims.
I. Evidentiary Rulings.
The IHO denied M.M.’s request to admit the report and testimony of Dr.
Cecelia McCarton, who conducted a neurodevelopmental evaluation of C.M. (See Pl.’s 56.1
¶¶ 162-64.) The IHO ruled that such evidence was cumulative and would cause delay. (See
Pl.’s 56.1 ¶ 164.) M.M. included the McCarton Report in the supplemental evidence she
provided to the SRO on appeal. (See SRO Dec. at 8.) The SRO found that the report, among
other supplemental evidence submitted by M.M., was “not necessary to a determination on
the issue of compensatory relief,” and, in any event, that M.M. did not assert that the IHO
abused his discretion by not admitting the evidence. (See id. at 9.)
M.M. argues that “[t]he record did not contain any other neuro-developmental
testing, report or testimony from a physician (Dr. McCarton is a Professor of Clinical

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Pediatrics) and no report contained identical diagnosis or recommendations.” (Pl.’s Reply
Mem. in Further Supp. and Opp. of Summ. J., September 20, 2016, Dkt. No. 79 (“Pl.’s
Opp.”) at 12.) However, testimony from multiple experts was admitted at the impartial
hearing. (Pl.’s 56.1 ¶ 90, 117, 155.) Based on proffers from M.M., the IHO determined that
the McCarton report contained analysis and recommendations for C.M.’s future education,
but was not probative of the relevant issue, which was what award of compensatory
education would remedy C.M.’s past denials of a FAPE. (See IHO Hearing Transcript,
September 8, 2014 at 864-65.) Thus, the report was excluded both because it was cumulative
of other evidence from experts regarding how to best educate C.M. in the future, (see id. at
868), as well as not probative of the relevant issue of compensatory education, (see id. at
869). Both the IHO and SRO effectively ruled that the McCarton report was not needed to
decide the issue of compensatory education. The IHO’s, and even more so, the SRO’s,
evaluation of this evidence is entitled to deference. The Court finds no basis to disturb the
conclusion of the IHO and SRO that the McCarton report and testimony was not needed to
properly calculate C.M.’s compensatory education award.
M.M. further alleges that the IHO and SRO failed to consider other admissible
evidence, (Pl.’s Opp. at 34), and improperly narrowed the scope of admissible evidence in
the administrative record, (id. at 35). M.M. additionally alleges that the IHO “applied the
wrong legal analysis, erroneously narrowed the issues in the hearing, failed to permit
testimonial and documentary evidence to be introduced that was relevant to the claims and
defenses and then ruled on defenses in his decision that were not raised below and/or
concerning which M.M. had no notice.” (Id.)
These additional claims lack merit. The SRO’s decision, which is entitled to

14

deference, found that:
After examining the hearing record and in light of the broad
discretion granted to IHOs in conducting an impartial hearing,
the IHO did not improperly restrict the scope or content area of
questioning by counsel for the parent. Rather, the IHO
provided counsel with leeway in discussing matters outside the
scope of the due process complaint notice and appropriately
exercised his discretion to curtail the lengthy proceedings by
reasonably restricting counsel’s repeated attempts to
impermissibly expand the scope of the impartial hearing,
appropriately discussing evidentiary matters regarding the
relevance of proposed testimony, and instructing counsel for
the parent to question witnesses in a manner that would result
in the development of an adequate hearing record.”
(SRO Dec. at 8.) The IHO acted within his authority and the SRO properly upheld these
actions.
II. The Compensatory Education Award.
A.

ABA Services.

The SRO awarded compensatory education to C.M. to remedy defendants’
failure to provide her a FAPE for the 2013-2014 SY. This award included 1 hour of 1:1
ABA services for each day in the 2013-2014 12-month school year, for a total of 210 hours,
to be used by October 31, 2015. (SRO Dec. at 13.) The ABA award included the 180 day
school year and 30 days during the summer portion of the 12-month school year, but not
every week of the summer when school is not in session. (Id. at 13 n.13.) M.M. contends
that the SRO’s award of additional ABA services was insufficient to compensate C.M. for
the 2013-2014 FAPE deprivation, arguing that 35 hours per week were required. (Pl.’s Opp.
at 11.) M.M. further argues that the SRO erred in not awarding sufficient ESY services to
C.M. (Id. at 18-19.)
The SRO applied the correct legal standard: “[i]n determining appropriate

15

relief, the compensatory services should place the student in the position she would have
occupied had the district complied with its obligations under the IDEA.” (SRO Dec. at 13.)
The determination regarding what position C.M. would have been in had she been provided a
FAPE during the 2013-2014 SY was made more challenging by the fact that during the 20132014 SY C.M. received ABA services pursuant to the ABA Bank as part of the prior
settlement agreement. (See id.) This circumstance “mudd[ied] the waters” (plaintiff’s
words) with respect to the determination of whether the progress C.M. made that year was a
result of services provided pursuant to the IEP or pursuant to the ABA Bank. (Id. at 13
n.12.) In other words, a prediction regarding how far C.M. would have progressed with an
IEP that provided a FAPE needed to be separated from progress that C.M. made as a result of
using ABA Bank services, which were not part of the services provided to her in order to
achieve a FAPE for that year, but were to remedy past FAPE deprivations. The SRO found
that as the hearing record lacked “sufficiently quantifiable proof of the student’s progress in
relation to the number of ABA hours the student received,” compensatory education of 1
hour of ABA services for each day in the 2013-2014 SY, totaling 210 hours, would be
awarded. (Id. at 13.)
In circumstances such as this, where difficult evaluations need be made to
distinguish which specific services are responsible for a student’s progress, deference to an
SRO’s expertise is especially appropriate. While the SRO’s determination that the
compensatory education award is sufficient to place C.M. in the position she would have
been in but for her denial of a FAPE for the 2013-2014 SY is entitled to deference based on
the SRO’s expertise in the field of education, the Court notes that the law of diminishing
returns further supports this determination. Common sense and experience teaches that

16

services that may be valuable for, or even critical to, a child’s educational achievement when
provided in small to moderate amounts may become close to useless, or even burdensome, if
provided in overwhelming quantity. As the SRO noted in the context of awarding homebased services, “it is going to become increasingly difficult for the student to make up missed
services from past deprivations and maintain a current program at the same time . . . .” (Id. at
14.) ABA services may be important, but as with all things, they are not an unmitigated
benefit in any amount. The SRO’s educational judgement in taking account of C.M.’s
overall educational setting, needs, and services, rather than rotely prescribing services from
which the student would achieve no meaningful benefit, is entitled to deference. The Court
declines to disturbed the SRO’s judgment that an overdose of services would be
“increasingly difficult” and have a detrimental impact on the child who is endeavoring to
“maintain a current program.” Id.
The SRO’s denial of M.M.’s requested ESY services was also proper. ESY
services are required only to the extent necessary “to prevent substantial regression,” T.M. v.
Cornwall Cent. Sch. Dist., 752 F. 3d 145, 152 (2d Cir. 2014) (quoting 8 NYCRR §
200.6(k)(1)(v)); see also id. at 163 (citing 34 C.F.R. § 300.106(a)(1)), defined as the
“student’s inability to maintain developmental levels due to a loss of skill or knowledge
during the months of July and August of such severity as to require an inordinate period of
review at the beginning of the school year to reestablish and maintain IEP goals and
objectives mastered at the end of the previous school year.” 8 NYCRR 200.1(aaa). The
SRO found that “[t]he hearing record is devoid of evidence that the student experienced such
severe regression as to be eligible not only for 12-month services, but for services provided
every week of the year.” (SRO Dec. at 13 n.13.)

17

The well-reasoned SRO decision is entitled to deference, and the Court finds
that the SRO’s compensatory education award of 1 hour of 1:1 ABA services for each day in
the 2013-2014 12-month school year, for a total of 210 hours, to be reasonably calculated to
put C.M. in the position she would have been in had she been provided a FAPE in the first
instance.
B.

Parent Training and Counseling.

The SRO awarded 24 hours of compensatory parent training and counseling,
to be used by October 31, 2015. (Id. at 11.) M.M. seeks an award of substantially more
parent training and counseling. (Pl.’s Opp. at 18; SRO Dec. at 11. n.10.) The SRO’s award
was appropriate. The SRO found that “the hearing record contains no evidence indicating a
need for, and [M.M.] presents no argument regarding why, such a high level of services
provided to the parent is necessary to remediate the harm caused to the student by the
district’s failure to provide such services . . . .” Further supporting the SRO’s decision was
evidence in the record that one of C.M.’s home-based ABA providers had already discussed
C.M.’s program with M.M. (SRO Dec. at 11. n.10.)
The SRO is in a much better position than the Court to determine the
appropriate amount of parent training and counseling required to put C.M. in the position she
would be in had she not been denied a FAPE. The well-reasoned SRO decision is entitled to
deference, and the Court finds that the award of 24 hours of compensatory parent training
and counseling to be reasonably calculated to put C.M. in the position she would have been
in had she been provided a FAPE in the first instance.

18

C.

Assistive Technology.

The SRO award of compensatory education did not include any assistive
technology. (Id. at 10-11 n.9.) The SRO reasoned that “[s]tate regulations provide that
assistive technology devices and services are generally required to the extent necessary to
permit a student to benefit from instruction,” thus “a compensatory award of assistive
technology services will be granted only when the services are necessary to assist the student
in accessing the instructional portions of her compensatory award.” (Id. (citing 8 NYCRR
200.4(d)(2)(v)(b)(6), (d)(3)(v)).) The SRO properly stated the applicable law.
There was evidence in the record recommending assistive technology as
additional support for C.M., but the SRO found that while assistive technology might support
and reinforce C.M.’s practice of academic skills, it was not a service required for C.M. to
access her curriculum, and thus “the hearing record [did] not indicate that assistive
technology devices or services [were] required to enable the student to receive benefits from
the compensatory services awarded . . . .” (Id.) This analysis is entitled to deference and the
Court declines to overturn the SRO’s decision on this matter.
M.M. argues that “the SRO applied the wrong standard in holding that M.M.
had to prove that C.M. required [assistive technology] to benefit from another aspect of her
compensatory award,” (Pl.’s Opp. at 20), contending that assistive technology, standing
alone, can be “special education” in its own right, and need not be tied to other services, (id.
(quoting 34 C.F.R. §300.105)). However, M.M.’s argument is undercut by the language of
34 C.F.R. §300.105, which specifically indicates that assistive technology must be “made
available to a child with a disability if required as part of the child’s” special education,
related services, or supplementary aids and services. This language supports the SRO’s

19

ruling that assistive technology is not itself an appropriate award of compensatory education,
but rather, is appropriately included as a supplement when necessary to implement the
awarded compensatory education.
D.

Modification of C.M.’s June 2013 IEP.

As additional relief for C.M.’s denial of a FAPE during the 2013-2014 SY,
M.M. requests a declaration that C.M.’s IEP for the 2013-2014 SY include “placement in the
LRE, an appropriate ESY program, ABA, 1:1 instruction, after-school services, [assistive
technology] and her related services.” (Pl.’s Rev. Mem. in Supp. of Summ. J., August 29,
2016, Dkt. No. 68 (“Pl.’s Supp.”) at 23.) She further requests an injunction directing the
creation of a legally valid IEP that complies with the IDEA’s procedural requirements, “is
free from illegal policies and restrictions[,] includes all services required to afford C.M. a
FAPE in the LRE[,] and [] is properly individualized.” (Pl.’s Opp. at 21.)
The SRO held these claims to be moot, finding that the 2012-2013 SY having
expired, the dispute no longer addressed the then current needs of C.M. (See SRO Dec. at 9.)
While M.M. argues that these claims are not moot because their resolution could affect
whether C.M. receives a FAPE in the future, she does not explain how the Court
retroactively amending a past IEP would so affect C.M.’s future provision of a FAPE. The
one case that M.M. cites in support of her contentions, Student X v. New York City Dept. of
Educ., 2008 U.S. Dist. LEXIS 88163, at *28 (E.D.N.Y. Oct. 30, 2008), is distinguishable. In
that case, the court found that the development of a more recent, substantially identical IEP
did not moot a challenge to an identical IEP developed several months earlier for the same
school year. Id. at 35, 42. But the SRO in this case has issued an order regarding a
subsequent IEP, which is the subject of the litigation before this Court. Having

20

acknowledged the repeated methodological disputes between M.M. and defendants over
C.M.’s past IEPs, the SRO ordered that:
[W]hen the CSE next convenes to conduct an annual review of
the student’s program the district will be directed to consider
whether home-based educational services, the provision of
instruction using ABA methodology, or assistive technology
devices and services are required to enable the student to
benefit from instruction and, after due consideration thereof,
provide the parent with prior written notice on the form
prescribed by the Commissioner specifically indicating
whether the CSE recommended or refused to recommend such
services on the student’s IEP and explaining the basis for the
CSE’s recommendation therein as well as the evaluative
information relied upon in reaching these determinations.
(SRO Dec. at 14.)
M.M. alleges that defendants failed to implement this order. (Second
Amended Complaint (“SAC”) ¶ 366.) The SRO order, and further orders from this Court
ordering its enforcement, if necessary, negate any need for retroactive amendment of the
June 2013 IEP.
III. C.M.’s Stay-Put Rights and Implementation of the SRO Order.
M.M.’s allegations that defendants violated C.M.’s stay-put rights and failed
to implement the SRO order were not addressed at the prior administrative proceedings. Due
to an inadequately developed record, the Court denies both parties’ summary judgement
motions with respect to these claims.
A.

C.M.’s Stay-Put Rights.

“The stay-put provision of the IDEA provides that ‘during the pendency of
any proceedings conducted pursuant to this section, unless the State or local educational
agency and the parents otherwise agree, the child shall remain in the then-current educational
placement of the child.’” E. Lyme Bd. of Educ., 790 F.3d at 452 (citing 20 U.S.C. §
21

1415(j)). “To determine a child’s ‘then-current educational placement,’ a court typically
looks to: (1) ‘the placement described in the child’s most recently implemented IEP’; (2) ‘the
operative placement actually functioning at the time when the stay-put provision of the IDEA
was invoked’; or (3) ‘the placement at the time of the previously implemented IEP.’” Id.
(quoting Mackey ex rel. Thomas M. v. Bd. of Educ. for Arlington Central Sch. Dist., 386
F.3d 158, 163 (2d Cir. 2004)).
On August 15, 2013, a pendency hearing was held before IHO Roth to
determine C.M.’s stay-put program and placement. (Pl.’s 56.1 ¶ 48.) On September 27,
2013, IHO Roth issued an interim order on pendency establishing M.M’s stay-put rights.
(Pl.’s 56.1 ¶ 49.) The order concluded that the June 2012 IEP constituted C.M.’s stay-put
placement for the 2013-2014 SY, and directed defendants to fund the 10 hours per week of
SEIT/ABA included on the June 2012 IEP. (Pl.’s 56.1 ¶¶ 55-56.) Neither party appealed
this order. (Pl.’s 56.1 ¶ 57.)
M.M. first raises claims alleging violations of C.M.’s stay-put rights here,
never having previously brought them at any administrative proceeding. Neither the
impartial hearing record nor the SRO decision address C.M.’s stay-put rights. However, “‘an
action alleging violation of the stay-put provision falls within one, if not more, of the
enumerated exceptions to’ the IDEA’s exhaustion requirement.” E. Lyme Bd. of Educ., 790
F.3d at 455 (quoting Murphy v. Arlington Central Sch. Dist. Bd. of Educ., 297 F.3d 195, 199
(2d Cir. 2002)). The Court may thus not grant summary judgment against M.M. for failure
to exhaust this claim.
The services that C.M. was due under her stay-put rights, and the services
actually provided, are either disputed by the parties or not clear from the record. Contrary to

22

the Court’s reading of the SRO decision, defendants argue that the compensatory education
awarded by the SRO was intended to remedy any violation of C.M.’s stay-put rights as well
as her denial of a FAPE. However, even if this were the case, the SRO decision awarding
compensatory education was based upon the record created by the IHO at the impartial
hearing, and the decision rejected the admission of any additional evidence on appeal. (SRO
Dec. at 8-9.) Thus, even if the SRO award was intended to remedy defendants’ violation of
C.M.’s stay-put rights in addition to defendants’ failure to provide C.M. with a FAPE,
several of the alleged stay-put violations post-date the hearing and thus would not have been
part of the record on appeal, including defendants’ alleged failure to offer an ESY program in
the summer of 2014, (Pl.’s 56.1 ¶ 236), C.M.’s school’s alleged lack of a special education
teacher during several months in 2014, (Pl.’s 56.1 ¶ 237), and defendants’ alleged failure to
provide C.M. with an ESY instructional program in the summer of 2015, (Pl.’s 56.1 ¶ 239).
The only evidence in the record regarding these deficiencies is an affidavit
from M.M. stating as much. (Hyman Decl., October 30, 2015, Dkt. No. 30 at Ex. R. (Decl.
of M.M., October 30, 2015).) Defendants concede that the “administrative record is silent
with respect to this claim . . . .” (Defs.’ Mem. in Supp. and Opp. of Summ. J., September 12,
2016, Dkt. No. 78 (“Defs.’ Supp.”) at 16.) It would be inappropriate for the Court to grant
summary judgment to either party based on this record. Both parties’ motions for summary
judgment with respect to defendants’ alleged violation of C.M.’s stay-put rights are denied.
B.

Implementation of the SRO Order.

M.M. claims that defendants have violated the IDEA by failing to implement
the SRO decision. (SAC ¶ 366.) Specifically, M.M. alleges that defendants did not
implement the ABA or parent training that was awarded and failed to consider ABA and

23

home-based services or issue a Prior Written Notice, as ordered by the SRO. (See Pl.’s
Supp. at 25; see also Decl. of M.M., October 30, 2015.)
Defendants contend that C.M. receives ABA therapy from a private provider,
that the DOE processes payments directly to the ABA provider upon receipt of payment
documentation, and that the DOE has not received any invoices for the compensatory hours
awarded by the SRO. (Defs.’ Supp. at 17-18.) The primary evidence that defendants cite in
support of this contention is an email chain between M.M.’s counsel, the DOE’s Impartial
Hearing Order Implementation Unit, and defendants’ counsel. (See Hyman Decl., October
30, 2015 at Ex. X.)
The information in the record is not sufficient for the Court to evaluate the
merits of these arguments. Based on the evidence indicated by the parties, it is not clear
whether defendants’ actions complied with the SRO decision. Both parties’ motions for
summary judgment with respect to defendants’ alleged failure to implement the SRO order
are denied.
IV. Remaining Claims.
M.M. brings further claims under Section 504 and section 1983 for
defendants’ failure to provide C.M. with a FAPE, and under Section 504, section 1983, and
the IDEA for defendants’ alleged systemic violations of the IDEA.
M.M. brought claims under Section 504 in the 2013 Due Process Complaint,
but the IHO did not rule on them. (SAC ¶ 316.) M.M. appealed the IHO’s failure to hear her
Section 504 claims to the SRO, and the SRO ruled that he did not have jurisdiction to review
Section 504 claims. (SRO Dec. at 8.) While M.M. appealed the IHO’s alleged failure to rule
on her claims of systemic violations of the IDEA, the SRO found that “she raise[d] no

24

particularized arguments and it [was] not necessary to address them further given the
district’s concession that it did not offer the student a FAPE.” (Id. at 4 n.5.)
Based on this record it would be inappropriate for the Court to dismiss
M.M.’s section 1983 or Section 504 claims, or their claims for systemic violations of the
IDEA, for a failure to exhaust them. To the extent that the SRO made findings relevant to
these claims the Court will defer to the SRO’s findings, for the reasons stated previously.
Because of the lack of discovery or developed administrative record regarding issues not
dealt with by the SRO, the Court evaluates the parties’ motions for summary judgment with
respect to those issues using the same standard as it would evaluate a motion to dismiss
under Rule 12(b)(6), Fed. R. Civ. P.
Rule 12(b)(6) requires a complaint to “contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). In assessing the sufficiency of a complaint, a court must disregard legal
conclusions, which are not entitled to the presumption of truth. Id. Instead, the Court must
examine the well-pleaded factual allegations and “determine whether they plausibly give rise
to an entitlement to relief.” Id. at 679. “Dismissal is appropriate when ‘it is clear from the
face of the complaint, and matters of which the court may take judicial notice, that the
plaintiff’s claims are barred as a matter of law.’” Parkcentral Global Hub Ltd. v. Porsche
Auto. Holdings SE, 763 F.3d 198, 208-09 (2d Cir. 2014) (quoting Conopco, Inc. v. Roll Int’l,
231 F.3d 82, 86 (2d Cir. 2000)).
Insofar as M.M. brings claims under Section 504 and section 1983 for
defendants’ failure to provide C.M. a FAPE, or for systemic violations of the IDEA, the SAC

25

fails to state a claim upon which relief can be granted, and those claims are dismissed.
A.

Section 504.

“Section 504 addresses discrimination against disabled students, rather than
inappropriate special education services which can be the basis of IDEA claims.” S.W. v.
Warren, 528 F. Supp. 2d 282, 289 (S.D.N.Y. 2007). “[A] Section 504 claim may be
predicated on the claim that a disabled student was ‘denied access to a free appropriate
education, as compared to the free appropriate education non-disabled students receive.’”
C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 841 (2d Cir. 2014) (quoting S.W., 528
F. Supp. at 290).
M.M.’s claims under Section 504 are premised on the same allegations
underlying her arguments regarding compensatory education for defendants’ failure to
provide C.M. with a FAPE. (See, e.g., SAC ¶ 347 (“C.M. requires ABA Services, homebased instruction and for M.M. to have home-based Parent Training in order for her to have
equal access to and benefit from her right to education in New York State.”); SAC ¶ 349
(“Defendants have discriminated and are discriminating against C.M. based on her disability
by refusing to allow services that would enable her to gain equal benefit from education,
compared to her typical peers.”); SAC ¶ 352 (“By denying C.M. access to her 1:1 instruction,
ABA services, after-school services, and [assistive technology], Defendants have
discriminated and are discriminating against her based on her disability.”)
To state a claim under Section 504, a plaintiff must allege (1) “that he or she
is a person with disabilities under the Rehabilitation Act,” (2) “who has been denied benefits
of or excluded from participating in a federally funded program or special service,” (3)
“solely because of his or her disability.” Bryant v. New York State Educ. Dep’t, 692 F.3d

26

202, 216 (2d Cir. 2012). At issue is the second prong: whether C.M. has been denied
benefits or excluded from participating in a federally funded program or service by virtue of
her denial of a FAPE or by systemic IDEA violations by defendants.
Additionally, a Section 504 claim predicated on the denial of a FAPE
“requires proof of bad faith or gross misjudgment.” C.L., 744 F.3d at 841. Courts have used
this same standard to evaluate Section 504 claims alleging systemic IDEA violations as well.
See S.W., 528 F. Supp. 2d at 287, 290-92 (requiring proof of bad faith or gross misjudgment
for Section 504 claims alleging systemic IDEA violations).
A plaintiff who alleges that they have been denied benefits or have been
excluded from participating in a federally funded program or special service “may proceed
under any or all of three theories: disparate treatment, disparate impact, and failure to make
reasonable accommodation.” Regional Econ. Cmty. Action Program, Inc. v. City of
Middletown, 294 F.3d 35, 48 (2d Cir. 2002). M.M. is proceeding on the theory that
defendants failed to make reasonable accommodations for C.M. by denying her a FAPE.
(See Pl.’s Supp. at 27.) M.M. thus fails to state a claim under Section 504, as “a demand for
‘reasonable accommodations to assure access to an existing program’ is cognizable; but a
demand for ‘additional or different substantive benefits’ is not.” Streck v. Bd. of Educ., 280
F. App’x 66, 68 (2d Cir. 2008) (summary order) (citing Wright v. Giuliani, 230 F.3d 543,
548 (2d Cir. 2000) (per curiam)). Because C.M was classified as a student with a disability
and provided with an IEP, C.M. was afforded “access to an existing program.” Id. (citing
Wright, 230 F.3d at 548.) Because M.M “challenges the content and sufficiency of the IEP,”
she “demands additional or different substantive benefits,” rather than “reasonable
accommodations to assure access to an existing program.” Id. (internal quotation marks

27

omitted). To the extent that M.M. alleges that C.M. is due services beyond that to afford her
a FAPE, (SAC ¶ 354 (“Even if the services that M.M. seeks are not necessary to afford C.M.
a FAPE under the IDEA, they are necessary to level the playing field and afford C.M. equal
benefit to the state-mandated education guaranteed to each student in New York.”)), she
similarly improperly seeks additional or different substantive benefits under Section 504.
In any event, M.M. cannot show the requisite bad faith or gross misjudgment.
While M.M. conclusory asserts that defendants’ “conduct is knowing, intentional, reckless,
and gross,” (SAC ¶ 355), the IHO found that C.M. “received an inordinate amount of
services during the 2013-2014 school year,” (IHO Dec. at 15), and the SRO agreed that “the
hearing record supports the IHO’s determination that the student received a greater level of
services than was necessary to provide her with a FAPE,” (SRO Dec. at 12). A technical
FAPE deprivation when the student is provided with such services is not the result of bad
faith or gross misjudgment. The same applies to M.M.’s claims under Section 504 alleging
systemic violations of the IDEA. (SAC ¶ 350 (“Defendants have discriminated and are
discriminating against C.M. based on her disability by refusing to allow her IEP teams to
recommend services that would enable her to gain equal benefit from education, regardless
of her individual needs.”)) M.M.’s Section 504 claims are dismissed.
B.

Section 1983.

To state a claim under section 1983, a plaintiff must allege “(1) the violation
of a right secured by the Constitution and laws of the United States, and (2) the alleged
deprivation was committed by a person acting under color of state law.” Vega v. Hempstead
Union Free Sch. Dist., 801 F.3d 72, 87-88 (2d Cir. 2015) (internal quotation marks omitted).
“A state employee acting in his official capacity is acting under color of state law.” Id.

28

(internal quotation marks omitted). M.M. alleges that defendants violated C.M.’s rights
secured under the IDEA and the Fourteenth Amendment to the U.S. Constitution.
“The Fourteenth Amendment does not protect a public education as a
substantive fundamental right.” Handberry v. Thompson, 446 F.3d 335, 352 (2d Cir. 2006).
However, “the IDEA creates rights in favor of disabled children and their families
enforceable through [section] 1983.” D.D. v. New York City Bd. of Educ., 465 F.3d 503,
511 n.10 (2d Cir. 2006).
It would be inappropriate for the Court to award additional compensatory
education under section 1983 to remedy C.M.’s deprivation of a FAPE. First, district courts
within this circuit have suggested that an award of compensatory education is not available
under section 1983. See, e.g., Zahran v. Bd. of Educ., No. 03 cv 615, 2004 U.S. Dist. LEXIS
10244, at *9-10 (N.D.N.Y. June 4, 2004).
Second, the SRO determined that its award of compensatory education would
remedy defendants’ failure to provide C.M. with a FAPE. M.M. has advanced no principled
reason why or how a claim for compensatory education for a violation of the IDEA could
stand side by side with an award of compensatory education given for the same alleged
wrong and found to be adequate. The Court is not aware of any case in which a plaintiff has,
in effect, been compensated with compensatory education twice for the same FAPE
deprivation: once under IDEA, and once under section 1983 for violations of IDEA. This is
not a case where a plaintiff seeks compensatory education under the IDEA and monetary
relief under section 1983.
Neither is declaratory or injunctive relief available to M.M. under section
1983 in these circumstances: M.M. admits that she was granted, and participated in, both an

29

impartial hearing before and IHO and an appeal before an SRO. See Streck, 280 F. App’x at
68 (upholding dismissal of claims under section 1983 where “[p]laintiffs fail[ed] to allege a
denial of procedural safeguards or administrative remedies: they were afforded a hearing
before an impartial hearing officer and review by a state review officer”). Because M.M.
takes issue not with the process she received, but with the outcome of that process, she has
failed to allege that she was deprived of any rights without due process.
The same is true of M.M.’s allegations of systemic violations of the IDEA.
See BD v. DeBuono, 130 F. Supp. 2d 401, 434 (S.D.N.Y. 2001). In that case, faced with
similar allegations regarding systemic IDEA violations stemming from a district “policy of
strictly limiting the number of hours of ABA allowed any one child,” id. at 418, the court
dismissed the section 1983 claims of plaintiffs who had the opportunity to challenge their
own IEP’s provision of ABA hours, id. at 434. The court reasoned that, while the IDEA
provided individuals a property interest in a FAPE, that property interest was not impaired
without due process when the parents had a meaningful opportunity to participate in the
administrative review process:
Policy or no policy, the deprivation at issue in this case, as
plaintiffs themselves contend, is the failure to provide each
child with an individualized education program. Section 1983
liability arises if and only if this deprivation occurred without
due process of law. If any plaintiff received adequate due
process relevant to this deprivation, his claims must be
dismissed.
Id. at 432 (emphasis removed); see also S.W., 528 F. Supp. 2d at 287, 297-98 (S.D.N.Y.
2007) (dismissing plaintiffs’ section 1983 claims alleging that defendants’ various policies
violated the IDEA because plaintiffs failed to allege that they pursued available
administrative remedies).

30

C.

Systemic Violations of the IDEA.

M.M. brings claims under Section 504, section 1983, and the IDEA for
systemic violations of the IDEA. While M.M.’s claims under Section 504 and section 1983
fail for the reasons stated above, M.M.’s allegations regarding systemic violations of the
IDEA independently fail to state a claim under any of the three statutes.
First, M.M. challenges defendants’ policies related to the provision of ESY
services and the LRE mandate, alleging that defendants have systemically violated the IDEA.
(See SAC ¶¶ 358, 372, 373, 375.) M.M. alleges that the only ESY services considered for
C.M.’s IEPs are standard 6 week ESY services during the summer months in segregated
settings, that is, self-contained special education classrooms with no nondisabled students.
(See Pl.’s Supp. at 29.) M.M. alleges that “IEP teams are constrained to offer six weeks of
ESY services and a 46 week school year for every special education student in New York
City,” (SAC ¶ 244), and that “[d]efendants’ IEP teams were unable to consider
individualized ESY services outside of District 75,” (SAC ¶ 314(d)).
The Second Circuit’s holding in T.M. is instructive and controlling. 752 F.3d
at 161-68. In that case, the court found that a district that provided no ESY services for nonspecial education students, and thus only provided IEPs with segregated ESY placements,
had violated the LRE mandate under the IDEA. The court reasoned that, to meet the IDEA’s
LRE requirement with respect to ESY placements, “a school district first must consider an
appropriate continuum of alternative placements; it then must offer the disabled student the
least restrictive placement from that continuum that is appropriate for his or her needs.” Id.
at 165. This requirement is not avoided where a district does not offer certain types of
educational environments. Id. Yet, “a school district need not itself operate all of the

31

different educational programs on this continuum of alternative placements. The continuum
may instead include free public placements at educational programs operated by other
entities, including other public agencies or private schools.” Id. Assuming the truth of
M.M.’s allegations it appears that defendants’ practice of only providing segregated ESY
placements violates the LRE provision of the IDEA.
However, the Second Circuit in T.M. emphasized that “the IDEA does not
require public school districts to create any new ESY programs that they do not currently
operate.” Id. at 166. Further, the remedy for a districts’ failure to provide a student with an
ESY program in the LRE is for the district to reimburse that student for the cost of an
appropriate alternative placement. See id. at 166-67. The Second Circuit did not
contemplate injunctive relief as a remedy for violations of the ESY LRE mandate:
Each school district thus has broad discretion over how it
structures its alternative ESY placements; it can choose to
operate its own educational ESY programs, or to offer the
disabled children alternative placements in outside programs.
But if a school district simply refuses to consider a sufficient
continuum of possible ESY placements, and thereby denies a
child a FAPE in his or her LRE, then it may be liable for
reimbursement if the child’s parents find an appropriate
alternative placement.
Id. at 166. Further,
Even if a school district fails to place a disabled student in an
ESY program in his LRE, the student still will not be entitled
to reimbursement unless he finds a private alternative ESY
placement, proves that alternative placement was appropriate,
and proves that equitable considerations favor reimbursement.
If no appropriate alternative ESY placements are available, the
school district need not fear reimbursement claims.
Id. at 167 (internal citation omitted).
The Second Circuit precedent is clear: for a student who has been denied an

32

ESY placement in his or her LRE, his or her only remedy is reimbursement for a private
alternative placement, and then only if he or she can find one. M.M. does not allege that
C.M. was enrolled in a private alternative placement and does not seek reimbursement. She
thus fails to state a claim upon which relief can be granted with respect to her allegation that
defendants have systemically violated the IDEA by failing to provide ESY placements in the
LRE.
M.M. also alleges that defendants have systemically violated the LRE
mandates of the IDEA and Section 504, which, she alleges, require “a continuum of
alternative placements and services available to meet the needs of students with disabilities,”
through a policy by which “IEP teams in her district are limited in the types of services that
they have available via the IEP process to facilitate a program and placement in the LRE.”
(Pl.’s Supp. at 30; see also SAC ¶ 348 (“Defendants have discriminated and are
discriminating against C.M. based on her disability by refusing to allow certain services to be
recommended on her IEP regardless of her individual needs.”); SAC ¶ 358 (“Defendants
have violated the IDEA by adopting, applying, and directing the application of blanket
policies, practices, and procedures to C.M.’s IEPs and placements in relation to ESY
services, the LRE mandate and limitations on the availability of IDEA-mandated programs
and supports as otherwise alleged herein.”); SAC ¶ 361 (“Defendants have violated the rights
of Plaintiff under the IDEA by making decisions about C.M.’s IEP and placement based
upon administrative and financial concerns rather than her individual needs.”); SAC ¶ 362
(“Defendants have violated the IDEA by predetermining the outcomes of C.M.’s IEPs.”).)
Specifically, M.M. alleges that “her only options for C.M. are either a 12:1:1
class in a community school with a paraprofessional . . . or a segregated classroom in District

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75.” (Pl.’s Supp. at 31.) However, M.M. has cited no case or regulation suggesting that
these options are insufficient to meet the LRE standards of the IDEA or Section 504.
Lastly, M.M. argues that defendants’ policies concerning parent training
violate the IDEA. (Id. at 32.) M.M. alleges that defendants’ fail to individualize
recommendations of parent training, and that when offered, it is “in a boilerplate one-sizefits-all fashion - once per week, in a group, for five weeks in a library or separate location.”
(Id. at 32.) M.M. does not specify how the parent training was deficient other than that it
was not individualized. M.M. cites no authority suggesting the parent training she received
was inadequate.
For the reasons explained, M.M. has failed to state a claim for systemic
violations of the IDEA under that statute, section 1983, or Section 504. M.M’s arguments
regarding the submission of additional evidence, (Pl.’s Opp. at 32-33), are thus moot.
Defendants’ motion for summary judgment is granted with respect to M.M.’s section 1983
and 504 claims, and claims for systemic violations of the IDEA, and those claims are
dismissed.
V. State Law Claims.
M.M. also alleges that “Defendants have violated Plaintiff’s rights under [the]
New York Constitution, the New York State Education Law §§ 3202, 3203, 4401, 4404 and
4410 and § 200 of the Regulations of the New York State Commissioner of Education, 8
N.Y.C.R.R. §200, et seq.” (SAC ¶ 379.) M.M. alleges no facts supporting this allegation
and neither party specifically addresses these claims in their submissions. Defendants’
motion for summary judgment with respect to M.M.’s state law claims is thus granted, and
M.M.’s motion for summary judgment with respect to these claims is denied.

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CONCLUSION
Plaintiff’s motion for summary judgment (Dkt. No. 66) is denied. Because
the record is insufficient to determine whether defendants have violated C.M.’s stay-put
rights under the IDEA or failed to enforce the SRO’s March 26, 2015 order, defendants’
motion for summary judgment (Dkt. No. 76) is denied with respect to those two claims and
granted in all other respects.
SO ORDERED.

Dated: New York, New York
March 30, 2017

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