Cornett et al v. Banks et al

Filing 45

OPINION & ORDER re: 25 MOTION for Summary Judgment . filed by Donna Cornett, 34 MOTION for Summary Judgment filed by David C. Banks, New York City Department of Education. For the foregoing reasons, the Defendants&# 039; motion for summary judgment is GRANTED and Plaintiff's motion for summary judgment is DENIED. The Clerk of Court is respectfully directed to enter judgment for the Defendants, TERMINATE all pending motions, and CLOSE this case. (Signed by Judge Margaret M. Garnett on 3/5/2025) (vfr) Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
3/5/2025

DONNA CORNETT, Individually and on Behalf of
J.B.,
Plaintiff,

23-CV-06893 (MMG)

-against-

OPINION & ORDER

DAVID C. BANKS, et al.,
Defendants.

MARGARET M. GARNETT, United States District Judge:
Plaintiff Donna Cornett (“Plaintiff”) brings this action individually and on behalf of her
minor child J.B. against Defendants the New York City Department of Education (the “DOE”)
and David C. Banks, in his official capacity as Chancellor of the DOE 1 (together, “Defendants”)
0F

alleging that J.B., a student with special needs, was denied a Free and Appropriate Public
Education (a “FAPE”) for the 2022–2023 school year and seeking to overturn the decision of the
State Review Officer (“SRO”) that determined a FAPE was provided. Now before the Court are
the parties’ cross-motions for summary judgment. See Dkt. Nos. 25, 27 (“Plaintiff Mot.”), 34, 35
(“Defendants Mot.”). For the reasons set forth herein, Defendants’ motion for summary
judgment is GRANTED and Plaintiff’s motion for summary judgment is DENIED.
BACKGROUND 2
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J.B. is a ten-year-old student with traumatic brain injury, as classified by the Committee
on Special Education (“CSE”), and several other severe medical conditions, including Lennox-

Since the filing of this motion, Mr. Banks has resigned and the current DOE Chancellor is
Melissa Aviles-Ramos. Nothing about this change in personnel affects the outcome of this motion.
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The Court’s account of the underlying facts is derived from the submissions in support of and in
opposition to parties’ respective cross-motions for summary judgment—specifically, the Certified
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Gastaut Syndrome, Hirschsprung’s Disease, cerebral palsy, hypoxic ischemic encephalopathy,
and cortical visual impairment. J.B. is tracheostomy-dependent, G-tube fed, non-verbal, nonambulatory, and relies on support for all activities of daily living. J.B.’s medical conditions
result in significant impairments to her cognition, language, memory, attention, reasoning,
abstract thinking, judgment, problem-solving, sensory and perceptual abilities, psychosocial
behavior, physical functions, information processing, and speech, all of which adversely affect
J.B.’s educational performance. Since 2018, J.B. has been enrolled in the International Institute
for the Brain (“iBRAIN”), a private school placement selected by her parents, where she receives
direct and small-group instruction together with individual occupational therapy, physical
therapy, speech-language therapy, vision education services, and music therapy.
On January 7, 2022, the CSE convened to develop an Individualized Education Program
(“IEP”) for J.B. for the 2022–2023 school year. In its IEP, the CSE recommended a 12:1+(3:1)
class size in a specialized school with related services, and recommended placement at P.S.
Q256. J.B.’s parents were present at the CSE meeting and expressed disagreement with the

Administrative Record, Dkt. Nos. 22-1–14 (“CAR”), Plaintiff’s Local Rule 56.1 statement of material
facts, Dkt. No. 26 (“Plaintiff 56.1”); Defendants’ Local Rule 56.1 counterstatement, Dkt. No. 37
(“Defendants Counter 56.1”), and additional statement of material facts, Dkt. No. 36 (“Defendants 56.1”);
Plaintiff’s Local Rule 56.1 counterstatement of material facts, Dkt. No. 39 (“Plaintiff Counter 56.1”); the
Impartial Hearing Officer decision, CAR at R0032–75 (“IHO Decision”); and the State Review Officer’s
decision, CAR at R0012–31 (“SRO Decision”). Although the parties did not file a joint statement of
agreed-upon facts, many of the relevant facts are undisputed. Where facts stated in a party’s 56.1
Statement are supported by testimonial or documentary evidence, and denied by a conclusory statement
by the other party without citation to conflicting testimonial or documentary evidence, the Court finds
such facts to be true. See S.D.N.Y. Local Rule 56.1(c) (“Each numbered paragraph in the statement of
material facts set forth in the statement required to be served by the moving party will be deemed to be
admitted for purposes of the motion unless specifically denied and controverted by a correspondingly
numbered paragraph in the statement required to be served by the opposing party.”); id. at 56.1(d) (“Each
statement by the movant or opponent . . . denying and controverting any statement of material fact[ ] must
be followed by citation to evidence which would be admissible and set forth as required by Fed. R. Civ.
P. 56(c).”). No further citations to these documents will be provided herein unless specifically quoted or
referenced.

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recommended class size. J.B.’s parents rejected the proposed school placement on the grounds
that they believed P.S. Q256 could not implement the IEP, and unilaterally placed J.B. at
iBRAIN for the 2022–2023 school year.
On July 6, 2022, Plaintiff filed a Due Process Complaint (“DPC”) alleging that DOE
deprived J.B. of a FAPE, that iBRAIN was an appropriate placement for J.B., and that all costs
associated with J.B.’s placement at iBRAIN should be fully covered by the DOE. The DPC
alleged that the IEP was inappropriate and that, even if appropriate, Q256 could not implement
it.
A six-day hearing was held before Impartial Hearing Officer (“IHO”) Leah Murphy,
concluding on December 8, 2022. IHO Murphy issued her decision on December 21, 2022,
finding that DOE had failed to provide J.B. a FAPE because the IEP would not have been
implemented by P.S. Q256, but also that J.B.’s parents had failed to show that iBRAIN was an
appropriate unilateral placement because they had failed to establish either that J.B. was in
regular attendance at iBRAIN or that she was receiving the nursing care mandated by the IEP at
iBRAIN. See IHO Decision at R0062–65. The IHO also found that even if the placement was
appropriate, the equities would not favor reimbursement because of the lack of evidence
supporting J.B.’s regular attendance at iBRAIN. Id.
Plaintiff appealed the IHO Decision. The DOE also cross-appealed, arguing that the IHO
erred by finding a FAPE was not provided. State Review Officer (“SRO”) Justyn Bates was
assigned to the appeal and issued a decision on April 5, 2023. See SRO Decision. The SRO
reversed the IHO Decision in part, concluding that the IHO erred in finding that DOE did not
provide a FAPE because the IHO’s conclusion that the DOE’s proposed school placement could
not implement the IEP was impermissibly speculative. Id. at R0025 n.14. The SRO declined to

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review the adequacy or appropriateness of the IEP on the grounds that Plaintiff waived any
objection by failing to appeal. Id. at R0024. Because the SRO found that DOE had provided a
FAPE, the SRO Decision did not reach whether the unilateral placement was appropriate, nor if
the equities favored reimbursement. Id. at R0030–31.
PROCEDURAL HISTORY
Plaintiff initiated this action by complaint on August 4, 2023, alleging violations by
Defendants of the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq.
(“IDEA”), New York State’s implementing laws and regulations, 8 N.Y.C.R.R. § 200 et seq.,
and Article 89 of the New York Education Law, N.Y. Educ. Law § 4401 et seq. See Dkt. No. 1
(the “Complaint”). The Complaint sought a reversal of the SRO Decision, payment of J.B.’s
tuition and associated costs for the 2022–2023 school year at iBRAIN, and attorney’s fees under
the IDEA’s fee-shifting provisions. Id. Defendants answered on October 4, 2023. See Dkt. No.
11.
On January 21, 2024, Plaintiff submitted the Certified Administrative Record (“CAR”)
with a motion to file it under seal, which Judge Lorna G. Schofield, the District Judge thenassigned to this matter, later granted. See Dkt. Nos. 21, 22, 23, 30, 31. Plaintiff moved for
summary judgment on January 31, 2024, see Dkt. Nos. 25–27, and Defendants cross-moved for
summary judgment and opposed Plaintiff’s motion on February 29, 2024, see Dkt. Nos. 34–37.
Plaintiff replied on March 28, 2024, see Dkt. Nos. 39, 40, and Defendants replied on April 11,
2024, see Dkt. No. 41.
This case was reassigned to the undersigned on February 23, 2024. See Dkt. No. 33.
After the briefing on the parties’ motions was complete, the Court referred the matter to
Magistrate Judge Valerie Figueredo for a settlement conference. See Dkt. Nos. 42, 43. Although

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Judge Figueredo conferred with the parties regarding settlement, a settlement conference was not
held.
LEGAL STANDARDS
I.

The IDEA Generally
“The IDEA authorizes the disbursement of federal funds to [s]tates that develop

appropriate plans to, among other things, provide a free and appropriate public education
(“FAPE”) to children with disabilities.” Ventura de Paulino v. N.Y.C. Dep’t of Educ., 959 F.3d
519, 525 (2d Cir. 2020) (internal references omitted). “To provide a FAPE to each student with
a disability, a school district must develop an IEP that is ‘reasonably calculated to enable the
child to receive educational benefits.’” Id. (quoting T.M. ex rel. A.M. v. Cornwall Cent. Sch.
Dist., 752 F.3d 145, 151 (2d Cir. 2014)).
Parents who wish to challenge the adequacy of their child’s IEP can avail themselves of
New York’s two-tier system of administrative review: first, by filing an administrative due
process complaint and requesting a hearing before an IHO; and second, by appealing that
officer’s decision to a state review officer. 20 U.S.C. §§ 1415(f)–(g); N.Y. Educ. Law §§
4404(1)–(2). The IDEA permits dissatisfied parents to pursue judicial review of an SRO’s
decision in, inter alia, a federal district court. Ventura, 959 F.3d at 526; see also 20 U.S.C. §
1415(i)(2)(A); N.Y. Educ. Law § 4404(3). The district court receives the records of the state
administrative proceedings and hears additional evidence if requested. 20 U.S.C. §§
1415(i)(2)(C)(i)–(ii).
II.

Summary Judgment in the IDEA Context
In IDEA cases, the usual summary judgment standards do not apply. 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);

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Viola v. Arlington Cent. Sch. Dist., 414 F. Supp. 2d 366, 377–78 (S.D.N.Y. 2006). Instead,
summary judgment in IDEA cases is “in substance an appeal from an administrative
determination, not a summary judgment.” See Arlington Cent. Sch. Dist. v. D.K. & K.K., No. 02
Civ. 2117 (DLC), 2002 WL 31521158, at *7 (S.D.N.Y. Nov. 14, 2002) (quoting Capistrano
Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 892 (9th Cir. 1995)); accord Lillbask ex rel.
Mauclaire v. Conn. Dep’t of Educ., 397 F.3d 77, 83 n.3 (2d Cir. 2005). When reviewing
administrative decisions under the IDEA, a federal district court considers the record and any
additional evidence the parties submit and bases its determination on a preponderance of the
evidence. 20 U.S.C. § 1415(i)(2)(C); T.P. ex rel. S.P., 554 F.3d at 252.
“The role of the federal courts in reviewing state educational decisions under the IDEA
is circumscribed,” and “courts must bear in mind the statutory context and the administrative
judges’ greater institutional competence in matters of educational policy.” R.E. ex rel. J.E. v.
N.Y.C. Dep’t of Educ., 694 F.3d 167, 189 (2d Cir. 2012) (internal references omitted) (citing
Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112–13 (2d Cir. 2007)). Typically, the
court “must give due weight to [the administrative] proceedings, mindful that the judiciary
generally lacks the specialized knowledge and experience necessary to resolve persistent and
difficult questions of educational policy.” M.H. ex rel. P.H. v. N.Y.C. Dep’t of Educ. (“M.H.”),
685 F.3d 217, 240 (2d Cir. 2012) (internal references omitted) (citing Gagliardo, 489 F.3d at
113). But where the challenged administrative determination implicates a pure legal question,
the Court owes no deference to the underlying ruling. See Montalvan v. Banks, 707 F. Supp. 3d
417, 430 (S.D.N.Y. 2023) (citing Mrs. B. ex rel. M.M. v. Milford Bd. of Educ., 103 F.3d 1114,
1122 (2d Cir. 1997)).

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III.

The Burlington/Carter Test
Parents dissatisfied with a recommended school placement for their child may

unilaterally place their child in a private school and seek tuition reimbursement from the district.
See 20 U.S.C. § 1412(a)(10)(C). However, parents who choose to place their children in a
private school “during the pendency of review proceedings, without the consent of state or local
school officials, do so at their own financial risk.” Florence Cnty. Sch. Dist. Four v. Carter, 510
U.S. 7, 15 (1993) (citing Sch. Comm. of Burlington, Mass. v. Dep’t of Educ. of Mass.
(“Burlington”), 471 U.S. 359, 373–74 (1985)). In unilateral parental placement cases, DOE may
be required to pay for educational services obtained for a student by his or her parent, if (i) the
services offered by the board of education were inadequate or inappropriate, (ii) the services
selected by the parent were appropriate, and (iii) equitable considerations support the parents’
claim. See Burlington, 471 U.S. at 369–74. These three prongs comprise the so-called
“Burlington/Carter” test. See also Gagliardo, 489 F.3d at 111–14; Walczak v. Fla. Union Free
Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998). The party who requests an impartial hearing—in
this case, Plaintiff—bears the burden of proving all three prongs of the Burlington test. Schaffer
v. Weast, 546 U.S. 49, 62 (2005).
In addressing the first prong of the Burlington/Carter test—whether the school district
offered the student an appropriate program—a court looks at two factors: (1) whether the
student’s IEP was developed according to the IDEA’s procedural requirements and (2) whether
the educational plan set forth in the IEP was reasonably calculated to confer educational benefit
on the student. Walczak, 142 F.3d at 129 (citing Bd. of Educ. of Hendrick Hudson Cent. Sch.
Dist., Westchester Cnty. v. Rowley, 458 U.S. 176, 206–07 (1982)). While school districts are
required to comply with all IDEA procedures, not all procedural errors render an IEP legally

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inadequate under the IDEA. A.C. ex rel. M.C. v. Bd. of Educ. of Chappaqua Cent. Sch. Dist.
(“A.C.”), 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377,
381 (2d Cir. 2003). Rather, a FAPE is denied only where the procedural irregularities deprived
the student of educational benefits or interfered with a parent’s right to participate in decisions
regarding their child’s program and placement. See Werner v. Clarkstown Cent. Sch. Dist., 363
F. Supp. 2d 656, 659 (S.D.N.Y. 2005). The requirement that the IEP be “reasonably calculated”
to provide educational benefits simply means that it must “provide [children with disabilities]
with ‘meaningful access’ to education . . . [and] must be ‘likely to produce progress and not
regression.’” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006) (quoting
Walczak, 142 F.3d at 130, 133). Moreover, where plaintiffs argue that a proposed school
placement cannot implement the IEP, the challenge must be more than “mere speculation.” M.O.
v. N.Y.C. Dep’t of Educ., 793 F.3d. 236, 244 (2d Cir. 2015). To succeed, plaintiffs must prove
that the school is “factually incapable of implementing the IEP.” Z.C. v. N.Y.C. Dep’t of Educ.,
222 F. Supp. 3d 326, 338 (S.D.N.Y. 2016).
A reviewing court need not reach the second or third prongs of the Burlington/Carter test
if it determines that the school district’s IEP and school placement is adequate. M.C. ex rel. Mrs.
C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 (2d Cir. 2000); see also Walczak, 142 F.3d at 134.
The IDEA provides that a request for tuition reimbursement for a unilaterally chosen private
school may be reduced or denied “upon a judicial finding of unreasonableness with respect to
actions taken by the parents,” 20 U.S.C. § 1412(a)(10)(C)(iii)(III), including conduct evincing a
lack of intent to enroll their child in public school. See Thies v. N.Y.C. Bd. of Educ., No. 07 Civ.
2000 (RMB), 2008 WL 344728, at *4 (S.D.N.Y. Feb. 4, 2008).

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DISCUSSION
I. The SRO Properly Decided a FAPE was Provided to J.B. for the 2022–2023 School
Year
It is well-settled in this Circuit that federal courts should defer to a state agency’s final
administrative decision in matters of educational policy. A.C., 553 F.3d at 171; Karl ex rel. Karl
v. Bd. of Educ. of Geneseo Cent. Sch. Dist. (“Karl”), 736 F.2d 873, 877 (2d Cir. 1984).
Deference is due even when “the SRO’s decision conflicts with the earlier decision of the IHO”
since the former’s determination is “the final decision of the state authorities.” A.C., 553 F.3d at
171 (internal references omitted) (citing Karl, 736 F.2d at 877).
In the initial administrative proceeding in this matter, the IHO concluded that the DOE
did not provide J.B. with a FAPE because the DOE did not show that P.S. Q256 could not
adequately implement the IEP. See IHO Decision at R0050 (“While I find the IEP recommended
for J.B. to be appropriate, the Department failed to sustain its burden to show that the IEP would
be appropriately implemented at Q 256.”). On appeal, the SRO reversed this decision by the
IHO, instead finding that DOE had provided a FAPE for J.B.’s 2022–2023 school year, and that
Plaintiff’s assertions that P.S. Q256 could not implement the IEP were speculative. See SRO
Decision at R0025 n.14. The SRO did not review the appropriateness of the IEP; although the
parents had objected to the IEP below, they did not appeal the IHO’s finding that the IEP was
appropriate and thus had waived that argument on appeal. Id. at R0024. Based on the
administrative record, the SRO found that the DOE had not denied J.B. a FAPE for the 2022–
2023 school year, and therefore did not find it necessary to reach the second and third prongs of
the Burlington/Carter test. Id. at R0030–31.
Because the SRO concluded that J.B. was offered a FAPE, Plaintiff—whose motion for
summary judgment seeks to overturn the SRO’s determination—now bears the burden “of
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demonstrating that the [SRO] erred.” M.H., 685 F.3d at 225 n.3. Because “courts must defer to
the reasoned conclusions of the SRO as the final state administrative determination,” id. at 246,
and for the reasons discussed below, the Court finds that Plaintiff has not met her burden
showing the SRO erred, the SRO’s determination that a FAPE was provided for the 2022–2023
school year is affirmed.
A. Plaintiff Waived Her Substantive and Procedural Challenges to the IEP
As a threshold issue, Plaintiff attempts on summary judgment in this Court to re-litigate
issues that she failed to raise on cross-appeal before the SRO. On appeal from the IHO, the SRO
explicitly determined that Plaintiff waived the right to challenge the IEP by virtue of failing to
dispute the IHO’s finding that the IEP was substantively and procedurally adequate. See SRO
Decision at R0024. Specifically, the SRO stated that because J.B.’s parents “did not challenge
the IHO’s adverse finding that the January 2022 IEP was appropriate either directly in their
appeal or in response to the district’s cross-appeal [. . .] this determination has become final and
binding on the parties and will not be reviewed on appeal.” Id.
Rather than accepting the binding determination of the state agency, Plaintiff now asks
this Court to “conduct an independent evaluation of the case,” because “the absence of a direct
parental challenge to the IEP during the administrative process does not constrain the court’s
ability to provide suitable relief.” See Plaintiff Mot. at 10–11. Aside from a general appeal to
equitable principles, Plaintiff provides no justification, in either statute or caselaw, that would
justify the Court overturning the SRO’s reasoned determination that Plaintiff waived her appeal
rights as to the IEP. Id. And upon reviewing the SRO Decision, the Court also finds no
independent basis to conclude the SRO erred as a matter of law in reaching that conclusion.
The Court therefore affirms the SRO’s determination that Plaintiff waived her right to
challenge the IHO’s findings as to the appropriateness and adequacy of the IEP. See Hidalgo v.
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N.Y.C. Dep’t of Educ., No. 20 Civ. 98 (JGK), 2021 WL 2827037, at *3 (S.D.N.Y. July 7, 2021)
(affirming that “SRO properly concluded that any arguments [not raised on appeal] related to the
findings made by the IHO were abandoned and those findings became final and binding”); M.Z.
v. N.Y.C. Dep’t of Educ., No. 12 Civ. 4111 (KBF), 2013 WL 1314992, at *10 (S.D.N.Y. Mar. 21,
2013) (“Plaintiffs were obligated to cross-appeal those issues to the SRO in order to preserve the
reviewability of those issues. . . . [P]laintiffs’ failure to cross-appeal the IHO’s adverse findings
waived their right to challenge those of findings.”).
Irrespective of this waiver, the Court has independently reviewed Plaintiff’s procedural
and substantive complaints regarding the IEP and, for the reasons set forth below, finds them
unavailing.
B. Even if Not Waived, Plaintiff’s Procedural Challenges to the IEP Fail
A procedural violation of the IDEA amounts to a denial of FAPE when the violation: (i)
“impeded the child’s right to a free appropriate public education”; (ii) “significantly impeded the
parents’ opportunity to participate in the decision-making process regarding the provision of a
free appropriate public education to the parents’ child”; or (iii) “caused a deprivation of
educational benefits.” 20 U.S.C. § 1415(f)(3)(E)(ii). Plaintiff alleges that DOE procedurally
violated J.B.’s right to a FAPE in two ways: first, DOE failed to conduct an appropriate
evaluation, and second, DOE failed to conduct an appropriate school tour for J.B.’s parents. See
Plaintiff Mot. at 10–16. As stated above, these arguments were not raised before the SRO, and
Plaintiff has thus waived her right to review in this Court. Regardless, though, the record shows
that the IEP was procedurally sufficient.
First, in forming the evaluation, the CSE reviewed numerous documents in J.B.’s
medical and educational record in addition to conducting specific observations of J.B. and
reaching conclusions from those observations. These resources, documents, and analyses
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included: (1) a psycho-educational evaluation dated December 13, 2021; (2) a Social History
Update dated December 9, 2021; (3) an iBRAIN teacher and related service report dated
December 16, 2021; (4) J.B.’s 2021 IEP; (5) the 20-21 MAF nursing services Forms; (6) J.B.’s
Quarterly Progress Reports dated December 16, 2021; (7) informal observations of J.B.’s
abilities (rather than formal tests, due to the severity of J.B.’s cognitive impairments); and
(8) reports from J.B.’s educators and support staff regarding her abilities and needs. See
Defendants Mot. at 9–10 (collecting record citations). Courts in this District have repeatedly
found similar evaluations procedurally proper under the IDEA. See, e.g., J.F. v. N.Y.C. Dep’t of
Educ., No. 12 Civ. 2184 (KBF), 2012 WL 5984915, at *7 (S.D.N.Y. Nov. 27, 2012). Indeed,
“[t]he IDEA requires those formulating a student’s IEP to ‘review existing evaluation data on the
child, including (i) evaluations and information provided by the parents of the child; (ii) current
classroom-based, local, or State assessments, and classroom-based observations; and (iii)
observations by teachers and related services providers . . . .’ . . . It does not require that the team
review every single item of data available, nor has case law interpreted it to mean such.” F.B. v.
N.Y.C. Dep’t of Educ., 923 F. Supp. 2d 570, 581–82 (S.D.N.Y. 2013). The Court finds no reason
to deviate from these well-settled standards in this case, particularly when Plaintiff did not raise
this issue before the SRO.
Second, Plaintiff’s complaint that a proper school tour was not provided is not supported
by the record, and even if true, would not justify a finding of a procedurally deficient IEP.
Under the IDEA, “a school district has no obligation to . . . allow a parent to visit a proposed
school or classroom before the recommendation is finalized or prior to the school year.” E.A.M.
v. N.Y.C. Dep’t of Educ., No. 11 Civ. 3730 (LAP), 2012 WL 4571794, at *11 (S.D.N.Y. Sept.
29, 2012) (internal references omitted) (citing S.F. v. N.Y.C. Dep’t of Educ., No. 11 Civ. 870

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(DLC), 2011 WL 5419847, at *12 (S.D.N.Y. Nov. 9, 2011)); see also J.C. ex rel. C.C. v. N.Y.C.
Dep’t of Educ., 2015 WL 1499389, at *24 n.14 (S.D.N.Y. Mar. 31, 2015) (“To the extent that
Plaintiffs contend that they have a right under the IDEA to visit [the schools], courts have
rejected this argument.”) (collecting cases), aff’d, 643 Fed. App’x 31 (2d Cir. 2016).
Furthermore, the record shows that the parents did in fact participate in a virtual school tour
where they were able to interact with school administrators, ask questions, and inquire into the
school’s specific facilities and capabilities to implement J.B.’s IEP. See CAR at R0954–58.
Although this tour was conducted without video due to technical difficulties, Plaintiff did not
follow up to request any additional information. See id. at R0965–66. Because J.B.’s parents,
including Plaintiff, were provided with information about the school and resources which would
have permitted them to make an informed evaluation about P.S. Q256’s ability to meet the
requirements of J.B.’s IEP, the IEP was not procedurally defective.
C. Even if Not Waived, Plaintiff’s Substantive Challenges to the IEP Also Fail
“[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. ex rel. Joseph F. v. Douglas Cnty.
Sch. Dist. RE-1, 580 U.S. 386, 399 (2017). The Supreme Court has emphasized that the
touchstone of the substantive evaluation of an IEP is “whether the IEP is reasonable, not whether
the court regards it as ideal.” Id. (emphasis in original). Thus, “a school district fulfills its
substantive obligations under the IDEA if it provides an IEP that is likely to produce progress,
not regression, and if the IEP affords the student with an opportunity greater than mere trivial
advancement.” Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 (2d Cir. 2005) (internal
references omitted) (citing Walczak, 142 F.3d at 130).
Plaintiff alleges that the IEP substantively failed to provide a FAPE for the sole reason
that “it recommends a 12:1+(3:1) class placement,” for J.B, which the parents view as
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inadequate. See Plaintiff Mot. at 15. Such a class size is insufficient, Plaintiff claims, because
“J.B. requires a highly structured classroom or corner room with reduced visual and
environmental complexity, adjustable lighting, noise reduction, and minim[al] extraneous
auditory and visual stimulation[.]” Id. (internal references omitted).
This argument fails for three independent reasons. First, as with Plaintiff’s complaints as
to the alleged procedural insufficiency of the IEP, Plaintiff failed to raise this issue on appeal to
the SRO and has thus waived her right to appeal this issue before this Court. Second, even if
such a waiver had not occurred, the class size recommended by the IEP is not substantively
improper because the Second Circuit has described the 12:1+(3:1) class size as “the most
supportive classroom environment contemplated by the applicable New York regulations.”
Navarro Carrillo v. N.Y.C. Dep’t of Educ., No. 21 Civ. 2639, 2023 WL 3162127, at *1 (2d Cir.
May 1, 2023). Third, Plaintiff’s complaints that a potential 12:1+(3:1) classroom grouping could
not possibly accommodate J.B.’s needs are conclusory, speculative, and cite to no evidence in
the record for their support. The Court can reject them for this reason alone. See B.M. v.
Pleasantville Union Free Sch. Dist., No. 20 Civ. 2192 (KMK), 2021 WL 4392281, at *21
(S.D.N.Y. Sept. 24, 2021) (“[C]ourts in this District have repeatedly rejected grouping claims
like the ones Plaintiffs advance here.”); N.K. v. N.Y.C. Dep’t of Educ., No. 15 Civ. 1468 (PKC),
2016 WL 590234, at *7 (S.D.N.Y. Feb. 11, 2016) (“Whether or not the [s]tudent is grouped in a
class that is inappropriate for his IEP cannot be known at the time of the parent’s placement
decision.”). In contrast to Plaintiff’s unsupported arguments, Defendants cite to testimony given
before the IHO in which J.B.’s evaluating doctor determined that the IEP’s recommendation was
reasonably suited to encourage J.B.’s educational progression. See Defendants Mot. at 12.
Because Plaintiff both waived her right to appeal this issue and offers no objective evidence that

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the IEP’s recommended class size would have inhibited J.B.’s development, the Court does not
find that the IEP was substantively insufficient.
D. The SRO Correctly Rejected Plaintiff’s Challenges to P.S. Q256’s Ability to
Implement the IEP
To succeed on a challenge to a prospective school placement, parents must “demonstrate
the school’s inability to provide the services as mandated by the IEP.” N.B. ex rel. H.B. v. N.Y.C.
Dep’t of Educ., 711 F. App’x 29, 33 (2d Cir. 2017). Speculation is not a sufficient basis for a
prospective challenge to a proposed school placement. See M.O., 793 F.3d. at 244–45. Rather,
Plaintiff must prove that the school is “factually incapable of implementing the IEP.” Z.C., 222
F. Supp. 3d at 338.
Plaintiff argues that P.S. Q256, the proposed placement school, was not able to
implement the IEP’s related services or provide a 1:1 paraprofessional. See Plaintiff Mot. at 16–
17. But Plaintiff fails to present a non-speculative allegation that P.S. Q256, which it is
undisputed J.B. never attended, was unable to meet the IEP’s requirements. As is evident from
the SRO Decision, the SRO conducted a thorough and detailed review of the full factual record
and a close analysis of relevant witness testimony, and ultimately determined that “neither the
IHO nor the parents in response to the cross-appeal[] point to any testimony that the assigned
public school site could not implement the related services, as written, in the IEP[.]” See SRO
Decision at R0029 (emphasis omitted). The SRO found that Plaintiff’s general claims were
“inherently speculative [in] nature,” and that, to the contrary, there was “ample evidence that the
assigned school had the capacity to implement [J.B.’s] IEP as written.” Id.
Deference to the decision in the administrative record is particularly appropriate when the
administrative officers’ review has been thorough and careful, and when the Court’s decision is
based solely on the administrative record. See Walczak, 142 F.3d at 129; cf. Frank G., 459 F.3d
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at 367. In consideration of this deference and finding no reason in the record or in relevant
caselaw to contradict the SRO’s well-reasoned decision, the Court affirms the SRO’s
determination that Plaintiff did not prove that P.S. Q256 was factually incapable of
implementing the IEP.
*

*

*

For all of the above-stated reasons, the Court finds that the SRO’s reversal of the IHO’s
initial determination that Plaintiff was denied a FAPE was well-reasoned and correct, and
entitled to deference as the “final decision of the state authorities.” See M.H., 685 F.3d at 241.
II.

Although Unnecessary for the Court to Consider, the Second and Third Prongs of
the Burlington/Carter Test Likewise Favor Defendants.
Because J.B. has not been denied a FAPE, it is unnecessary for the Court to evaluate the

remaining two prongs of the Burlington/Carter test: whether the alternative private placement
was appropriate, and whether equitable considerations favor reimbursement. See M.C., 226 F.3d
at 66. Regardless, their outcome would not alter the Court’s ultimate determination to grant
summary judgment in favor of the Defendants.
In this case, while the SRO Decision did not reach prongs two or three of the
Burlington/Carter test, the IHO Decision found that both factors favored Defendants. See IHO
Decision at R0062–65. For prong two, whether the alternative private placement was
appropriate, the IHO held that Plaintiff had not met their burden to show that iBRAIN was an
appropriate unilateral placement for two reasons: (1) Plaintiff could not show that J.B.
consistently attended iBRAIN, and (2) Plaintiff could not show that iBRAIN had provided a 1:1
nurse as required by the IEP. Id. at R0062–63.
For prong three, whether equitable considerations favor reimbursement, the IHO held that
the equities favored Defendants because Plaintiff put forward no evidence showing J.B. actually
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attended iBRAIN regularly, such that repayment of tuition, related services, and transportation
costs would be justified. Id. at R0063–65. Because “courts should defer to the IHO’s analysis
when considering an issue not reached by the SRO,” C.F., 746 F.3d at 77, and the Court finds the
IHO’s determinations on these remaining prongs to be reasonable, both prongs two and three of
the Burlington/Carter test would favor Defendants and thus not alter the Court’s ultimate
conclusion if the Court were to consider them.
CONCLUSION
For the foregoing reasons, the Defendants’ motion for summary judgment is GRANTED
and Plaintiff’s motion for summary judgment is DENIED. The Clerk of Court is respectfully
directed to enter judgment for the Defendants, TERMINATE all pending motions, and CLOSE
this case.
Dated: March 5, 2025
New York, New York
SO ORDERED.

MARGARET M. GARNETT
United States District Judge

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