A.U., et al. v. New York City Department of Education
Filing
32
OPINION AND ORDER re: 26 MOTION for Summary Judgment, filed by New York City Department of Education; re: 18 FIRST MOTION for Summary Judgment on behalf of Plaintiffs, filed by A.U., A.P. For the foregoing rea sons, Plaintiffs' motion for summary judgment is GRANTED, and Defendants' cross-motion for summary judgment is DENIED. The Clerk is directed to close the motions at Docket Nos. 18 and 26 and to close the case. (As further set forth in this Opinion) (Signed by Judge Lorna G. Schofield on 8/25/2016) (kl)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
A.U. and A.P.., individually and on behalf of
:
M.U.,
:
Plaintiffs, :
:
-against:
:
NEW YORK CITY DEPARTMENT OF
:
EDUCATION,
:
Defendant. :
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15 Civ. 6777 (LGS)
OPINION AND ORDER
LORNA G. SCHOFIELD, District Judge:
Plaintiffs A.U. and A.P., individually and on behalf of M.U., bring this action against the
New York City Department of Education (“DOE”) pursuant to the Individuals with Disabilities
Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. Plaintiffs seek review of the April 29, 2015,
decision of the New York State Review Officer (“SRO Decision”) reversing the January 20,
2015, decision of the Impartial Hearing Officer (“IHO Decision”), which found that the DOE
had failed to provide a free and appropriate education (“FAPE”) to M.U. during the 2013-2014
school year. The parties have cross-moved for summary judgment. For the reasons below,
Defendants’ motion is denied and Plaintiff’s motion is granted.
I.
STATUTORY FRAMEWORK
The IDEA mandates that states receiving federal special education funding provide
disabled children with a FAPE. 20 U.S.C. § 1412(a)(1)(A); L.O. v. N.Y.C. Dep’t of Educ., 822
F.3d 95, 102 (2d Cir. 2016); M.W. ex rel. S.W. v. N.Y.C. Dep’t of Educ., 725 F.3d 131, 135 (2d
Cir. 2013). “To ensure that qualifying children receive a FAPE, a school district must create an
individualized education program (‘IEP’) for each such child.” R.E. v. N.Y.C. Dep’t of Educ.,
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694 F.3d 167, 175 (2d Cir. 2012). An IEP is a written statement that “‘describes the specially
designed instruction and services that will enable the child to meet’ stated educational objectives
and is reasonably calculated to give educational benefits to the child.” M.W., 725 F.3d at 135
(quoting R.E., 694 F.3d at 175); see also 20 U.S.C. § 1414(d).
New York delegates the annual development of an IEP to a local Committee on Special
Education (“CSE”). See N.Y. Educ. Law § 4402(1)(b)(1), (1)(d). At a minimum, a CSE must be
composed of the student’s parent(s) or their equivalent; one of the student’s special education
teachers or providers; one of the student’s regular education teachers if the student participates in
a regular education program; a school psychologist; a qualified school district representative; an
individual who can interpret the instructional implications of evaluation results; a school
physician; and a parent of another student with a disability. See N.Y. Educ. Law
§ 4402(1)(b)(1)(a). “The CSE must examine the student’s level of achievement and specific
needs and determine an appropriate educational program.” R.E., 694 F.3d at 175 (citing
Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107-08 (2d Cir. 2007)).
If a parent believes that the DOE has failed to provide a FAPE to his or her child, the
parent may “unilaterally place their child in a private school at their own financial risk and seek
tuition reimbursement.” M.W., 725 F.3d at 135 (citing Florence Cty. Sch. Dist. Four v. Carter,
510 U.S. 7, 9-10, 16 (1993)). To seek reimbursement, the parent must file a due process
complaint, which triggers administrative proceedings beginning with a hearing before an
Impartial Hearing Officer (“IHO”). See id. (citing 20 U.S.C. §§ 1415(b)(6), (f); N.Y. Educ. Law
§ 4404(1)). The IHO hearing is governed by the three-part Burlington/Carter test, as construed
by New York Education Law § 4404(l)(c): “(1) the DOE must establish that the student’s IEP
actually provided a FAPE; should the DOE fail to meet that burden, the parents are entitled to
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reimbursement if (2) they establish that their unilateral placement was appropriate and (3) the
equities favor them.” See id.
An IHO’s decision may be appealed to a State Review Officer (“SRO”). See N.Y. Educ.
Law § 4404(1)(c); L.O., 822 F.3d at 103. The SRO “shall review and may modify . . . any
determination of the impartial hearing officer . . . .” N.Y. Educ. Law § 4404(2). An SRO’s
decision is the final administrative decision, but an aggrieved party may seek review of the
decision by commencing an action in federal district court. 20 U.S.C. § 1415(i)(1), (i)(2)(A);
L.O., 822 F.3d at 103.
II.
BACKGROUND
Plaintiffs A.U. and A.P. (the “Mother”) (collectively “Parents”) are the parents of M.U., a
currently 17-year-old student who has been classified by the CSE as a student with autism.
Defendant DOE is responsible for providing a FAPE to children with disabilities, aged from 3 to
21 years, who reside in New York City.
A. M.U.’s Needs and Education Before the 2013-2014 School Year
The Mother testified as to M.U.’s needs as follows: historically, M.U. exhibited extreme
sensitivity to noise and overwhelming environments, precluding his ability to participate in a
school-based educational setting. During preschool, M.U. received services both in the home
setting and school setting. Within the school setting, he “started just completely withdrawing
into himself. He would sit in a corner and cover his ears. The environment was too overstimulating for him.” Therefore, from the ages of six to thirteen, M.U. was educated primarily in
the home setting. At that time, M.U. required 1:1 instruction to make progress and attain small
foundational skills, such as maintaining eye contact for a few seconds.
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At approximately ten years of age, M.U. was reintroduced to a school setting part-time in
a program for students with autism (McCarton); however, it proved too overwhelming, and M.U.
attended class with other students for only 30 minutes weekly. Otherwise, he was in a separate
room with a 1:1 teacher. During this time, M.U.’s 1:1 home instruction continued. The Mother
testified that during these school years, the DOE agreed that M.U. was appropriately receiving
home based 1:1 instructional services. However, the DOE informed the Mother that it was
limited to recommending only 6:1:1 programs for M.U. Over the years, M.U.’s Parents had
several opportunities to view various 6:1:1 classes. The Mother testified that the students she
observed in the 6:1:1 classes over the school years were nonverbal and exhibited similar
behaviors (sudden movements, noises and tantrums) as the students at McCarton, where M.U.
was overwhelmed and had difficulty learning.
The Mother testified that it took hard work to bring M.U. out of himself to connect and
learn, and placing M.U. in a 6:1:1 environment similar to the ones she had viewed, or a program
like McCarton, would cause “him to go back inside of himself and close out the noise and the
stimulation.” Historically, M.U. has exhibited the least amount of language progress when he
did not have appropriate peer models. It became evident that M.U.’s use of language is
contingent on having appropriate communicative partners.
The CSE did not convene an IEP meeting or offer a placement for M.U. for the 20122013 school year. Therefore, his Parents placed him at the Cooke Center Grammar School
(“Cooke”) for the 2012-2013 school year. During that school year, M.U. was placed in a
classroom with six other students, two teachers (one head teacher and one assistant teacher), and
three paraprofessionals, one of whom was assigned specifically to M.U.
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B. Materials the CSE’s Obtained Before the Meeting to Create an IEP
Prior to the May 2013 meeting to create an IEP for M.U. for the 2013-2014 school year,
the DOE did not conduct a psychoeducational evaluation. Instead, the DOE relied on a private
neuropsychological evaluation conducted in 2012 that was provided by the Mother. The
neuropsychologist who conducted the evaluation, Dr. Kenner, noted in her report that at the time
of the evaluation, M.U. was being home-schooled (in a 1:1 ratio). Dr. Kenner recommended
that M.U. remain in a setting with a high teacher to student ratio. Dr. Kenner further
recommended that M.U. attend a small class, receive individual special education teacher
support in the classroom “to facilitate on-task behavior and social interaction”, and that M.U.
should participate in a “small, facilitated [social skills] group with good role models.” Dr.
Kenner further recommended that M.U. required a curriculum focused on academics and social
skills. Dr. Kenner also concluded that because M.U. has a strong willingness to learn and is
interested in relationships with his peers, M.U. would continue to make progress in his
development (with appropriate interventions). DOE school psychologist and district
representative Rose Fochetta testified that she agreed with Dr. Kenner’s findings and that she did
not recall to what extent the neuropsychological evaluation was discussed at the IEP meeting.
Prior to the meeting, Ms. Fochetta observed M.U. for 40 minutes in his science class,
which was not his regular classroom environment. The observation was conducted in December
of 2012, within the first few months of M.U.’s first attendance in a classroom setting. M.U.’s
paraprofessional was absent the day of Ms. Fochetta’s observation; therefore, an assistant teacher
in the science class took the role of M.U.’s 1:1 paraprofessional. Ms. Fochetta testified that her
observation differed from M.U.’s typical environment, in that the observation was not conducted
in M.U.’s regular classroom, with his regular teacher and paraprofessional. According to Ms.
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Fochetta, in this environment with six students, two teachers, and one paraprofessional, M.U.
was “easily internally distracted which lead [sic] to difficulty following the directions and
expectations of the classroom.” Ms. Fochetta did not recall whether the classroom observation
was discussed in any detail at the IEP meeting.
Before the CSE meeting, the CSE contracted to have private evaluators conduct a
speech/language evaluation and occupational therapy evaluation of M.U., both in January 2013.
The CSE also obtained M.U.’s most recent progress report (at that time) from Cooke dated
March 2013, a GMADE Assessment from October 2012 (conducted by Cooke), and an Adaptive
Behavioral Assessment System Interpretive Report dated December 2012 (also completed by the
staff at Cooke).
C. The CSE Meeting to Create an IEP for the 2013-2014 School Year
The CSE team at the May 7, 2013 CSE meeting consisted of the Mother, parent member
Sandra Morabito, Cooke supervisor Cheryl Tuttle, Cooke head teacher Jessica Liebov, the DOE
special education teacher Feng Ye, and the DOE school psychologist and district representative
Rose Fochetta. The evaluative materials the IEP team reviewed and relied upon to develop
M.U.’s 2013-2014 IEP included the Neuropsychological Evaluation conducted on February 29
and March 1, 2012, Ms. Fochetta’s classroom observation conducted on December 12, 2012, a
speech/language evaluation conducted on January 9, 2013, an occupational therapy evaluation
conducted on January 7, 2013, the March 2013 Cooke progress report, the October 2012
GMADE assessment, and an Adaptive Behavior Assessment System Interpretive Report dated
December 18, 2012.
The CSE team, including the Mother, reviewed those documents to develop M.U.’s IEP.
Specifically, the neuropsychological evaluation, which reflected significant cognitive and
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academic deficits, was used to develop the IEP’s “present levels” section. The speech-language
evaluation was discussed at the meeting. The team considered the occupational therapy
evaluation and decided that occupational therapy services continued to be warranted. The Cooke
Center progress report was considered and used to develop the goals from the various therapists’
input in the report. The team reviewed the GMADE report, an internal Cooke assessment, which
was consistent with the results of the neuropsychological evaluation.
The resulting IEP classified M.U. as a student with autism, and recommended, inter alia,
a 6:1:1 special class in a specialized school for a 12-month school year, a full-time crisismanagement paraprofessional, and the related services of individual speech therapy three times
per week, group speech therapy twice per week, individual occupational therapy once per week,
group occupational therapy twice per week, individual counseling twice per week, and group
counseling once per week.
M.U.’s sensory needs were specifically addressed by a goal and related short-term
objectives, as well as by the behavior intervention plan (“BIP”). The IEP specified that M.U.
required “small group instruction” and “individual support to focus his attention.” Ms. Fochetta
testified that a special 6:1:1 class was recommended based on M.U.’s need for a small classroom
that was not overstimulating. The CSE team further recommended a 1:1 paraprofessional to
address M.U.’s need for ongoing, constant prompting and redirection.
Ms. Fochetta also testified that the 6:1:1 class was not adequate to address M.U.’s needs,
and therefore, a 1:1 crisis management paraprofessional was offered to M.U. The Mother
testified that the IEP team agreed that a 1:1 crisis management paraprofessional was not
appropriate for M.U., since M.U. did not exhibit behaviors that would require crisis
management. However, according to the Mother, the CSE team was forced to choose from a
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drop down menu, and chose a crisis management paraprofessional over the only other option of a
health paraprofessional. Ms. Fochetta testified that she was not familiar with the qualifications
or backgrounds of paraprofessionals that work within the DOE.
The CSE team also discussed that M.U. does not require a BIP. The Mother testified that
the BIP “created a picture of M.U. that was really inaccurate because he doesn’t have those kind
of behaviors that require a crisis para. So here we were trying to make something fit that didn’t
really fit and it created this picture of a kid who needs a crisis para.” The DOE created a
functional behavior assessment and BIP. The Mother testified that at the meeting when the crisis
management paraprofessional was chosen from the drop down menu, the DOE was required to
complete a BIP. Ms. Fochetta testified as to M.U.’s behaviors that might require intervention,
including his distractibility and need for sensory support, his somewhat inappropriate punching,
and his safety awareness: “he really had difficulty focusing his attention on tasks, and he really
needed a lot of one to one prompting and support just to focus. There were also concerns about
the need for sensory support, sensory breaks, that type of thing, and that individual support may
be needed for that. At the time he was also I mentioned punching individuals somewhat
inappropriately. Again, it was to get their attention and it wasn’t in an aggressive way. And his
mom also expressed concern about his safety awareness, you know, his ability to recognize when
he is in a dangerous situation, and that was an area of concern.” Ms. Fochetta testified that
“[t]here was some self-stimulatory behavioral concerns” with M.U. The District agreed, and the
IEP acknowledges, that in his educational setting at Cooke, M.U. did not engage in behaviors
and that he did not require a BIP.
The CSE team also discussed M.U.’s need for a program that focused on academics, and
did not provide for vocational skills. In fact, despite the fact that M.U. would be turning 15
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during the 2013-2014 school year, the Mother and the DOE agreed that a transition plan would
not be appropriate or necessary for M.U. Therefore, one was not included on the IEP. The IEP
contained a section on Measurable Postsecondary Goals -- Long-Term Goals for Living,
Working and Learning as an Adult that addressed the issue of M.U.’s future transition to living
as an adult after having finished school. The Mother requested that the CSE team “wait to
discuss transitional supports” in light of (a) the Parents’ plan to keep M.U. in school until he is
21 years old, (b) of M.U.’s present levels of performance, and (c) of the fact that his transition
needs are focused on his courses of study. Ms. Liebov testified that the CSE agreed that M.U.
required an academic- based program.
The IEP included strategies such as (1) technology as a means of positive reinforcement;
(2) visual supports; (3) verbal prompts; (4) redirection; (5) repetition; (6) manipulatives; (7)
breaking tasks and directions into small increments; (8) scaffolding; (9) graphic organizers; (10)
sentence starters; (11) modeling; (12) small group instruction and (13) individual support to
focus M.U.’s attention.
The Mother informed the DOE that she was concerned that M.U. needed to be placed
with role models. Ms. Fochetta agreed with this concern. Ms. Fochetta agreed with Dr. Kenner
that M.U. needed to develop his social skills in a facilitated group with good role models. The
IEP team incorporated M.U.’s need for verbal peer models into the IEP. The IEP indicates that
M.U. “needs appropriate peer modeling. He needs to be in a program with a focus on academic
instruction …He would have difficulty in a setting where there is a lot of bells ringing and a lot
of noise.” The Mother’s concerns are reflected in the IEP’s “Parent Concerns” section which
noted the Mother’s concern that M.U. “need[ed] appropriate peer modeling” and that he needed
“higher functioning role models.” Ms. Fochetta testified that she had no reason to disagree with
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the Mother’s expressed concerns about her child having role models, and called such concerns
“perfectly reasonable.” Ms. Liebov testified at the meeting that M.U. had just started attending a
class environment in September 2012, and he was showing progress because of the peer models
in his class, as well as the support of two teachers and three paraprofessionals assisting in the
classroom.
At the meeting, the Mother expressed concerns regarding the appropriateness of a 6:1:1
program recommendation, in that there would only be one teacher in the classroom for all six
students, the program would not be supportive enough academically, and that M.U. needed more
intensive academic instruction, particularly considering the high level of needs of the students in
6:1:1 placements. Ms. Liebov further testified at the IEP meeting, and the CSE agreed, that
Cooke was a good placement for M.U. because of the support in the classroom, the academic
rigor, as well as the presence of two teachers in the classroom.
The Mother testified that she expressed to the CSE her concerns that M.U. requires a
wider range of social opportunities than the 6:1:1 would provide. Based on the Mother’s
observations of 6:1:1 programs, she had observed students who were not interested or capable of
being social. The Mother also testified that she was concerned about the lack of opportunity for
socialization, since the students in 6:1:1 classes she observed were mostly contained in their
classroom and did not interact with the other students in the school. According to the Mother,
M.U. is more socially motivated than other students with autism who function at a similar level.
At the IEP meeting, both the DOE and M.U.’s Mother agreed that M.U. requires placement in a
class with verbal peers.
Ms. Fochetta testified that not all 6:1:1 placements are the same. According to the
Mother’s testimony, Ms. Fochetta stated that some classes have non-verbal students, and that
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there is a wide range of verbal abilities and behavioral needs in the 6:1:1 programs. Ms.
Fochetta admitted that she is unaware of what placement students will go to or who they will be
grouped with. Ms. Fochetta recommended that the Mother view the specific 6:1:1 class that was
recommended before making a decision to place M.U. there. According to the Mother’s
testimony, Ms. Fochetta indicated that she understood the Mother’s concerns and appeared to
agree with M.U.’s need for more verbal role models, but stated that it was the best the CSE could
do, and the Mother should “see what happens.”
D. The First Offer of Placement
The Mother received an offer of placement for a 6:1:1 at 04M117 at the end of May
2013. The Mother was unable to reach a representative of the school, so the Mother showed up
at the school to visit. The school’s assistant principal expressed concern regarding the
appropriateness of the school for M.U. In a letter dated June 13, 2013, the Mother indicated her
concerns with the placement, requested that the DOE inform her which class M.U. would be
placed in, and further indicated concerns regarding the IEP. She also requested that the DOE
send her more information about the proposed class. On June 17, 2013, the Parents wrote a letter
to the CSE reiterating the concerns with the IEP and placement offer. In that letter, the Parents
noted that they had not received a response to the June 13 letter, and therefore, the parents were
reenrolling M.U. at Cooke. The Parents further requested that the DOE contact them if any of
their concerns regarding the IEP and placement were inaccurate. On June 24, the CSE sent the
Parents a letter acknowledging receipt of the Parents’ concerns, and requesting that the Mother
send more information for the CSE to consider. Thereafter, on July 2, the Parents sent the CSE
M.U.’s most recent Cooke progress report.
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E. The Second Offer of Placement
The CSE sent the Parents a new offer of placement for a 6:1:1 class at P138M@47
(“P138”) dated June 20, 2013; however, the offer of placement was not postmarked until June
25, 2013. The placement letter noted that the Parents “have a right to visit this site.” The
projected IEP implementation date was July 1, 2013. The Mother contacted the school to
arrange a visit, and the school provided an appointment date of July 11, 2013.
The Mother, along with Rachel Munoz, a teacher at Cooke, visited P138. Victoria
Walden, who worked as a unit teacher at P138, provided an hour-long tour. Ms. Walden testified
that she brought the Mother to the computer room, the two 6:1:1 high school age classes, and the
P138 related service therapy room. Ms. Walden testified that the Mother asked how P138
determines which students are placed in which classroom for grouping purposes, and that in
response Ms. Walden directed the Mother to the administrative principal. Ms. Walden testified
that students at P138 work on adaptive daily living skills every day.
Regarding the two 6:1:1 high school classes, the Mother learned that there were only two
classes available to M.U., and both were already in session. The Mother observed that the
students in both classes were non-verbal, minimally verbal with heavy prompting, or used
assistive technology devices to communicate. Ms. Walden told the Mother that “there was a mix
of students, verbal and non-verbal.” The Mother observed that there was no interaction among
the students, even though they were eating snack rather than engaging in an academic session.
During the visit, the students in the two classrooms were engaged in disruptive behavior
such as making loud, sudden noises and slapping. Ms. Walden testified that at P138 “Social
skills happen. There are opportunities for students to increase their social skills on a daily basis
within the class room, outside of the class room, student to student, adult to student, staff in the
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school community. ASL staff and students interact with our students just in the hallways so
there’s ample opportunity throughout the day on a routinely [sic] basis, be it in the cafeteria also
when they’re making choice -- choice making decisions with the cafeteria staff. So there are
social skills opportunities in the school throughout the day.”
The Mother observed the students working on skills that M.U. had mastered several years
ago. Classwork involved cutting and pasting pictures (which some students were unable to do
because of fine motor limitations), pencil markings rather than letters and words. Student names
were written by class staff. Students received tokens in exchange for edible reinforcers for
appropriate behavior, a lower level skill than M.U. was capable of. Students were being
introduced to the concept of money, which M.U. already knew.
During her visit, the Mother learned that a large percentage of the day at P138 was
devoted to eating (nearly two and a half hours). The classroom schedules indicate that one of the
proffered classrooms does not teach math to its students, spends only three periods weekly on
literacy, and has no academic instruction at all on Fridays. The other class has a similar
schedule, where Fridays contained less than one period of literacy. The Mother was informed
that the students at P138 had time set aside during their day for jobs such as cleaning and filing.
F. M.U.’s Experience at Cooke
During the 2012-2013 school year at Cooke, M.U. received math instruction in a whole
group with a teacher, assistant teacher, and two paraprofessionals, and in small group of up to
three students with one teacher and his paraprofessional. In social studies, M.U. received 1:1
support for learning. M.U.’s English Language Arts class provided him with instruction in a
small reading group of three students with one teacher. M.U. also received 1:1 teacher
instruction for reading. For writing, M.U. received 1:1 support. At the time of the May 2013
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IEP meeting, restating and explaining information was the primary focus of M.U.’s 1:1
paraprofessional.
For the 2013-2014 school year at Cooke, it was determined that, with appropriate teacher
support in a small group of two or three students, M.U. did not require the 1:1 services going
forward, as he was able to be more independent. For the 2013-2014 school year at Cooke, M.U.
was placed in a class with six other students, two teachers, and three paraprofessionals. M.U.
received group instruction in reading, writing, Word Study and mathematics. M.U. received
additional 1:1 instruction with a teacher in reading, writing and Word Study.
G. Prior Proceedings
On February 3, 2014, the Parents filed a Due Process complaint alleging that the DOE
denied M.U. a FAPE for the 2013-2014 school year. Over the course of three hearing dates, the
DOE presented two witnesses, and the Parents presented five witnesses. The IHO found that the
DOE had failed to offer M.U. a FAPE, that Cooke was an appropriate placement for M.U., and
that equitable considerations favored the Parents. The IHO ordered the DOE to reimburse the
Parents for M.U.’s placement at Cooke during 2013-2014, as well as for transportation to Cooke.
On February 20, 2015, The DOE appealed the IHO’s decision to the SRO. Parents filed a
Verified Answer on March 26, 2015. The SRO overturned the IHO’s decision, finding that the
DOE offered M.U. a FAPE for the 2013-2014 school year.
III.
STANDARD
A motion for summary judgment in the IDEA context is “in substance an appeal from an
administrative determination, not a summary judgment [motion].” M.H. v. N.Y.C. Dep’t of
Educ., 685 F.3d 217, 226 (2d Cir. 2012); accord M.W., 725 F.3d at 138 (“Summary judgment in
the IDEA context . . . is only a pragmatic procedural mechanism for reviewing administrative
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decisions.” (internal quotation marks omitted) (quoting T.P. ex rel. S.P. v. Mamaroneck Union
Free Sch. Dist., 554 F.3d 247, 252 (2d Cir. 2009) (per curiam)).
In reviewing an SRO’s decision, a district court determines whether the SRO’s decision
is supported by “the preponderance of the evidence, taking into account not only the record from
the administrative proceedings, but also any further evidence presented before the District Court
by the parties.” See Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 380 (2d Cir. 2003)
(internal quotation marks omitted). “When an IHO and SRO reach conflicting conclusions, [a
court generally] defer[s] to . . . the SRO’s decision.” R.E., 694 F.3d at 189 (internal quotation
marks omitted). However, the “factual findings must be ‘reasoned and supported by the record’
to warrant deference,” M.H., 685 F.3d at 241 (quoting Gagliardo, 489 F.3d at 114), and, if an
SRO’s decision is not reasoned and supported by the record, “a better-reasoned IHO opinion
may be considered instead.” R.E., 694 F.3d at 189; see also Reyes ex rel. R.P. v. N.Y.C. Dep’t of
Educ., 760 F.3d 211, 218-19 (2d Cir. 2014). If an SRO decision does not reach a particular
issue, but an IHO opinion does address that issue and is well reasoned and based on the record,
the IHO opinion should be accorded deference. See M.H., 685 F.3d at 252, 254 (affirming on
appeal the district court’s decision to defer to the IHO’s conclusion that the school was an
appropriate unilateral placement for the first plaintiff, and that the equitable considerations
favored the first plaintiff, when the SRO did not reach those questions).
A district court “must give due weight to [the administrative] proceedings, mindful that
the judiciary generally lack[s] the specialized knowledge and experience necessary to resolve
persistent and difficult questions of educational policy.” T.P., 554 F.3d at 252 (alterations in
original) (internal quotation marks omitted). Accordingly, a federal court may not “substitute
[its] own notions of sound educational policy for those of the school authorities.” M.W., 725
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F.3d at 139 (internal quotation marks omitted). However, conclusions of law are not accorded
this deference and are reviewed de novo. See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114,
1122 (2d Cir. 1997) (“Consequently, the ‘due weight’ we ordinarily must give to the state
administrative proceedings is not implicated with respect to that conclusion, because it concerns
an issue of law; namely, the proper interpretation of the federal statute and its requirements.”).
In deciding how much deference to accord the IHO and SRO, a reviewing court may take
into account “whether the decision being reviewed is well-reasoned, and whether it was based on
substantially greater familiarity with the evidence and the witnesses than the reviewing court.”
R.E., 694 F.3d at 189 (internal quotation marks omitted). “The deference owed depends on both
the quality of the opinion and the court’s institutional competence.” C.F. ex rel. R.F. v. N.Y.C.
Dep’t of Educ., 746 F.3d 68, 77 (2d Cir. 2014).
IV.
DISCUSSION
Plaintiffs are entitled to reimbursement of tuition they paid for the 2013-2014 academic
year because, applying the Burlington/Carter test, the preponderance of the evidence (i) does not
support the SRO’s decision that the district provided a FAPE; and does support the IHO’s
findings that (ii) Plaintiff’s placement of M.U. at Cooke was appropriate and (iii) the equities
favor them.
A. Plaintiff’s Challenge to P138 Was Not Improperly Speculative as a Matter of
Law
The SRO concluded that Plaintiff’s objection to the DOE’s recommended placement,
P138, was too speculative as a matter of law because M.U. never attended P138 and her
objection as to how M.U.’s IEP would have been implemented was hypothetical. This holding is
contrary to recent Second Circuit law and is reversed.
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M.O. v. New York City Department of Education, 793 F.3d 236 (2d Cir. 2015), which was
decided three months after the SRO’s decision, clarified prior law as stated in R.E. v. New York
City Department of Education, 694 F.3d 167 (2d Cir. 2012). The SRO had cited R.E. for the
proposition that the sufficiency of the DOE’s offered program must be determined on the basis
of the IEP alone, and not a retrospective and hypothetical assessment of how that plan might
have been executed if the student had attended the public school. The Second Circuit explained
that R.E. “stands for the unremarkable proposition that challenges to a school district’s proposed
placement school must be evaluated prospectively (i.e., at ‘the time of the parents’ placement
decision’) and cannot be based on mere speculation.” M.O., 793 F.3d at 244. “While it is
speculative to conclude that a school with the capacity to implement a given student’s IEP will
simply fail to adhere to that plan’s mandates, it is not speculative to find that an IEP cannot be
implemented at a proposed school that lacks the services required by the IEP.” Id. (internal
citation omitted). Contrary to the SRO’s conclusion, “R.E. does not foreclose all prospective
challenges to a proposed placement school’s capacity to implement a child’s IEP.” Id. “To
conclude otherwise would require parents to send their child to a facially deficient placement
school prior to challenging that school’s capacity to implement their child’s IEP, which is
antithetical to the IDEA’s reimbursement process.” Id. at 244-45 (internal alteration and
quotation marks omitted).
The SRO Decision foreclosed Plaintiff’s challenge to the recommended placement at
P138 solely because M.U. had not attended P138. The SRO did not address, as it should have,
the factual question of whether P138 had the capacity to implement M.U.’s IEP.
B. The Better Reasoned IHO Decision Is Accorded Deference Where the SRO
Decision Was Silent
Plaintiffs’ motion for summary judgment is granted because P138 could not offer M.U. a
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FAPE; Cooke was an appropriate placement; and the equitable considerations weigh in favor of
Plaintiffs. Unlike the SRO, the IHO reached these questions. The IHO Decision was well
reasoned and supported by the record, and is therefore adopted as discussed below.
1. P138 Could Not Provide M.U. with a FAPE
Plaintiffs dispute that the IEP recommendation of a 6:1:1 special class placement with a
1:1 “crisis” paraprofessional was appropriately designed to address M.U.’s special education
needs, arguing that M.U. required a greater staffing ratio. The recommended placement at P138
could not provide a greater staffing ratio, as the 6:1 class setting was the smallest class size per
teacher on offer. Even assuming that the IEP recommendation was appropriate, the
recommended placement at P138 could not provide M.U. with a FAPE.
As discussed, the SRO Decision did not reach the factual issue of whether P138 could
provide a FAPE, because of an error of law. The IHO did reach this factual issue in a decision
that is well reasoned and supported by the record. The IHO observed that the two 6:1:1
classrooms that the Mother visited at P138 were the only ones for M.U.’s age group; that the
students were largely non-verbal and did not interact; that in contrast, M.U.’s verbal skills were
more highly developed, as he was speaking independently in short phrases, and with visual cues
in longer sentences; and that M.U. needed verbal peers in order to model the language of other
students in order to continue to progress. The IHO found that the DOE failed to prove that P138
could offer a functional grouping for M.U. because peers lacked the verbal skills necessary to
inspire M.U.’s social and communication progress; that P138 was not appropriate for M.U.
because of the lack of verbal peers; and that P138’s “mismatched, nonfunctional grouping” was
inappropriate for M.U. The IHO Decision was grounded in the (often undisputed) record of
M.U.’s needs, as well as evidence of the actual environment in the two 6:1:1 classrooms at P138.
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For these reasons, deference is accorded the IHO Decision. The DOE failed to offer a
FAPE to M.U. for the 2013-2014 school year.
2. Cooke Was an Appropriate Placement for M.U.
The second prong of the Burlington/Carter test requires a plaintiff to show that her
unilateral placement was “reasonably calculated to enable the child to receive educational
benefits, such that the placement is likely to produce progress, not regression.” See T.K. v.
N.Y.C. Dep’t of Educ., 810 F.3d 869, 877 (2d Cir. 2016) (internal quotation marks and citations
omitted). The IHO legitimately concluded, in light of the preponderance of the evidence, that the
placement at Cooke was reasonably calculated to benefit M.U. and would meet the standard for a
private placement: that it is likely to produce progress, not regression. “[T]he test for the
parents’ private placement is that it is appropriate, and not that it is perfect.” C.L. v. Scarsdale
Union Free Sch. Dist., 744 F.3d 826, 837 (2d Cir. 2014) (internal quotation marks and citations
omitted).
DOE does not challenge the adequacy of Cooke as a placement for M.U. According to
the record, Cooke provides M.U. with instruction and attention in a small, three-student setting
with extensive support to enable M.U. to focus and develop. The IHO observed that the record
documents how M.U. benefited academically and socially from the careful selection of his peers
for his reading, writing and math classroom at Cooke. Deferring to the IHO’s factual
conclusions, Plaintiffs have shown that Cooke’s program was reasonably calculated to enable
M.U. to receive educational benefits.
3. The Balance of the Equities Favors Reimbursement
Defendants do not contest Prong 3, that the balance of equities favors reimbursement, and
the SRO did not address it. The IHO’s decision that the balance of equities favored
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reimbursement was reasoned and supported by the record, which showed that tuition costs at
Cooke exceeded Plaintiff’s household income. The IHO Decision is therefore accorded
deference on this issue as well.
V.
CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for summary judgment is GRANTED, and
Defendants’ cross-motion for summary judgment is DENIED. The Clerk is directed to close the
motions at Docket Nos. 18 and 26 and to close the case.
Dated: August 25, 2016
New York, New York
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