Weaver et al v. Millbrook Central School District
Filing
20
OPINION AND ORDER:For the reasons given above, Defendant's Motion for Summary Judgment is granted. The Clerk of the Court is respectfully request to terminate the pending motion (Dkt No. 11), enter judgment for Defendant, and close the case. Motions terminated: 11 MOTION for Summary Judgment. filed by Millbrook Central School District. (Signed by Judge Kenneth M. Karas on 9/6/2011) (rj)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JOHN WEAVER and DIANE WEAVER, parents of
J.W., a disabled child,
Plaintiffs,
09-CV-692 (KMK)
-vOPINION AND ORDER
MILLBROOK CENTRAL SCHOOL DISTRICT,
Defendant.
Appearances:
RosaLee Charpentier, Esq.
Law Office of Salamon Davis
New York, NY
Counsel for Plaintiffs
Mark Craig Rushfield, Esq.
Shaw, Perelson, May & Lambert, LLP
Poughkeepsie, NY
Counsel for Defendant
KENNETH M. KARAS, District Judge:
John and Diane Weaver (collectively “Plaintiffs”) bring this action pursuant to the
Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., seeking to
overturn the determination of the State Review Officer (“SRO”) that Millbrook Central School
District (“Defendant” or “Millbrook”) is not required to reimburse Plaintiffs for their unilateral
placement of their child, J.W., at the Kildonan School (“Kildonan”), and seeking pendency
payments. Defendant moves for summary judgment. Plaintiffs also request summary
judgment.1 For the reasons given below, Defendant’s Motion is granted.
1
Plaintiffs’ counsel failed to appear at the pre-motion conference at which Defendant
was granted permission to file its Motion. Plaintiffs’ motion, therefore, could be denied for
failure to follow the Court’s individual rules. However, it is instead denied for the reasons given
I. Background
A. Factual Background
J.W. is a learning-disabled child who attended sixth grade in 2007-08, the only year in
dispute in this case. (Def.’s Rule 56.1 Statement (“Def.’s 56.1 Stmt.”) ¶¶ 1, 2; Opp’n to Def.’s
Rule 56.1 (“Pls.’ 56.1 Stmt.”) ¶¶ 1, 28.)2 Plaintiffs removed J.W. from public school and placed
him at Kildonan in September 2004. (Pls.’ 56.1 Stmt. ¶ 48.)3 Plaintiffs sought tuition
reimbursement for the 2004-05 and 2005-06 years, and resolved those claims by settlement with
Defendant. (Id. ¶ 49.) Though Plaintiffs offer conflicting statements about when they received
tuition reimbursement for the 2006-07 year, those payments are not in dispute here. (Id. ¶¶ 5354 (denied by Defendant).) On May 3, 2007, Defendant’s Committee on Special Education
(“CSE”) proposed a new individualized education program (“IEP”) for the 2007-08 year. (Id. ¶
55.) A hearing was held before an impartial hearing officer (“IHO”), who determined on
September 23, 2008 that the proposed IEP provided a free appropriate public education
(“FAPE”) for J.W. (Findings of Fact & Decision, Case No. 32,873 (Sept. 23, 2008) (“IHO Op.”)
9 (attached as Ex. A to Def.’s Answer).) The IHO also concluded, however, that the District was
obligated to fully reimburse the parents for J.W.’s tuition at Kildonan for the 2007-08 school
year as payment for the student’s pendency placement. (Id. at 4-5, 9.) Plaintiffs appealed and
Defendant cross-appealed to the SRO. (Pl.’s 56.1 Stmt. ¶ 66.) The SRO determined that the IEP
did not provide a FAPE, but that Plaintiffs’ placement of J.W. at Kildonan was not appropriate.
below.
2
Hereinafter, citations to a “Rule 56.1 Stmt.” are citations to an undisputed fact unless
otherwise indicated.
3
Defendant’s response to Pls.’ 56.1 Stmt. is contained in Defendant’s Reply 56.1 Stmt.
(Reply to Pl.’s [sic] Opp’n to Def.’s Rule 56.1 Statement.)
2
(Application of a Student with a Disability, by his Parents, for Review of a Determination of a
Hr’g Officer Relating to the Provision of Educ. Servs. by the Bd. of Educ. of the Millbrook Cent.
Sch. Dist., No. 08-130 (Dec. 8, 2008) (“SRO Op.”) 14-15, 19 (attached as Ex. B to Def.’s
Answer).) Defendant does not contest the SRO’s finding that the IEP did not provide a FAPE.
(Pl.’s 56.1 Stmt. ¶ 69.)
1. SRO’s Determination that Plaintiffs’ Placement Was Not Appropriate.
The SRO determined that Plaintiffs had not met their burden of demonstrating that
Kildonan was an appropriate placement for J.W. primarily because of the lack of detailed
evidence in the record. (SRO Op. 18-19.) The SRO noted that “[t]he Kildonan interim progress
reports contained in the hearing record describe both the school’s special education program, and
the student’s progress within it, in vague, nebulous terms that render a specific analysis of either
exceedingly difficult.” (Id. at 18.) More specifically, the SRO found that “[t]he[] reports do not
detail the student’s specific deficits in reading and mathematics, nor do they contain sufficiently
detailed information regarding the curriculum, level of materials being used[,] or objective
academic expectations for the student’s content area classes,” and that “Kildonan’s grading
system as utilized in its interim progress reports [was] so overly broad as to prevent any
meaningful assessment of the student’s actual progress.” (Id. at 18-19.)
The SRO based these conclusions on, inter alia: (1) a grading system with only three
gradations — “beginning,” reflecting 0%-25% “compliance relative to a given skill,”
“developing,” reflecting 25%-80% compliance, and “secure,” reflecting $80% compliance; (2)
mixed testing results showing improvement in some areas but regression or no change in others;
and (3) reports from teachers and tutors which reported progress in some areas and regression in
others, and which did not provide specifics about skills mastered. (Id. at 16-18 (internal
quotation marks omitted).)
3
Kildonan’s interim reports demonstrate mixed progress, which is summarized in the
following table:4
Math
Literature
History &
Science
Music
Elementary
Art
NA
NA
10/17,
2007
2B,
7D, 1S
7D, 3S
NA
11/16,
2007
10D,
1S
8D, 3S
5D, 5S
1/21,
2008
8D, 2S
5D, 5S
NA
3/11,
2008
2B,
8D, 1S
5D, 6S
2D, 8S
4/21,
2008
9D, 2S
5D, 5S
NA
8D, 2S
NA
10D
NA
8D, 2S
NA
6B, 4D
NA
Social
Studies
Science
5D, 5S
5D, 5S
NA
NA
4D, 6S
4D, 6S
NA
NA
3D, 8S
3D, 8S
(Parents’ Exs. (“Pls.’ Exs.”) E, F, N, O, V.) Thus, in general, and by Kildonan’s metrics,
between October 2007 and April 2008, J.W. improved in mathematics, literature, history, social
studies, and science, and regressed in music and elementary art. The November 2007 and March
2008 reports are accompanied by general descriptions of the courses offered in certain subject
areas and overviews of J.W.’s capacity in those areas without any description of skills acquired
or specific, measurable goals. (Id. Exs. E-F.) A more detailed analysis of the reports suggests
that while the overall direction of J.W.’s progress was positive, the road was bumpy. For
example, a comparison of the two most recent reports – March 2008 and April 2008 –
demonstrates that J.W.’s overall performance in Literature remained the same, while his
performance on specific measured criteria was mixed, showing improvement in some areas and
4
B = Beginning; D = Developing; S = Secure.
4
regression in others. (Id. Exs. E, V.)5 Similarly, the two areas in mathematics in which J.W. was
rated B in October 2007 are not the same as the two areas in which J.W. was rated B in March
2008. (Id. Exs. E, N.) Finally, after the October 2007 review, J.W. was placed in a special class
of only four students who needed more intensive help with mathematics. (IHO Tr. 459-61.)
J.W.’s other classes (aside from music and art) appear to have contained a maximum of six
students. (Id. at 464.)
Kildonan also conducted standardized testing of J.W. in twelve areas in May 2006,
October 2006, May 2007, October 2007, and May 2008, the results of which are summarized
below (bold indicates improvement, italics indicate regression):
5
Between March and April 2008, J.W. improved from a “D” to an “S” in “understands
concepts” and “builds on ideas and makes connections,” while he moved from an “S” to a “D” in
the areas of “demonstrates perseverance” and “demonstrates academic risk taking.” (Pls.’ Exs.
E, V.)
5
May, 2006
October, 2006
May, 2007
October, 2007
May, 2008
Word
Identification
14th %ile
27th %ile
14th %ile
27th %ile
20th %ile
Word Attack
27th %ile
24th %ile
32nd %ile
25th %ile
26th %ile
GORT6 Rate
2nd %ile
1st %ile
1st %ile
5th %ile
9th %ile
GORT
Accuracy
2nd %ile
1st %ile
1st %ile
9th %ile
16th %ile
GORT Fluency
1st %ile
<1st %ile
< 1st %ile
5th %ile
5th %ile
Vocabulary
9th %ile
14th %ile
29th %ile
71st %ile
67th %ile
Comprehension
30th %ile
21st %ile
28th %ile
28th %ile
45th %ile
Total Reading
17th %ile
16th %ile
27th %ile
47th %ile
56th %ile
Spelling
2nd %ile
4th %ile
2nd %ile
4th %ile
8th %ile
Mathematics –
Concepts
14th %ile
54th %ile
43rd %ile
5th %ile
.07th %ile
Mathematics –
Computation
2nd %ile
6th %ile
9th %ile
1st %ile
11th %ile
Mathematics –
Total
5th %ile
22nd %ile
24th %ile
2nd %ile
.06th %ile
(Pls.’ Exs. II, NN.) As this table shows, J.W.’s progress was uneven. The overall trend is
positive in the “reading” areas, but generally negative in the mathematics areas. The areas in
which J.W. had regressed between May 2006 and May 2008 were Word Attack, Mathematics –
Concepts, and Mathematics – Total. The decline in mathematics between October 2007 and
May 2008 is surprising in view of the more intensive mathematics instruction J.W. was
receiving. (IHO Tr. 459-61.)
6
GORT stands for “Gray Oral Reading Test” and involves students reading short
passages aloud. (Pls.’ Ex. G.)
6
The record also contains letters from J.W.’s teachers, both dated May 9, 2008, providing
a general outline of J.W.’s progress. (Pls.’ Exs. T, U.) Similarly, the record contains one of
Kildonan’s brochures, which explains that the school was founded to provide an educational
alternative for dyslexic students and that it offers one-on-one tutorials following the OrtonGilligham language training system, as well as a core curriculum that emphasizes multisensory
teaching and other techniques designed for students with specific language difficulties. (Id. Ex.
I, at unnumbered second-fourth pages.) The fact that J.W. received one-on-one tutoring for fifty
minutes daily also is confirmed in the record. (IHO Tr. 462.)7
2. Pendency Payments
On September 10, 2007, a different IHO had found that, with respect to the 2006-2007
school year, Defendants had not provided J.W. a FAPE and that Kildonan was an appropriate
placement for him. (Pls.’ 56.1 Stmt. ¶ 51.) That decision was not appealed and so became final.
(Id. ¶ 52.) The IHO in this case found that the Defendant was liable to Plaintiffs for tuition for
the 2007-08 school year because Kildonan was the “student’s pendency placement.” (IHO Op.
5.) The SRO agreed that “Kildonan constitute[d] the student’s pendency placement by virtue of
the [Defendant’s] election not to appeal the prior [IHO’s] decision,” but held that the pendency
requirement was not triggered until February 28, 2008, when Plaintiffs filed their due process
7
To support their claim that they “overwhelmingly demonstrated” that their placement
was appropriate, Plaintiffs list, without elaboration, argument, or explanation, a string of
exhibits. (Mem. of Law in Opp’n to Def’s Mot. & in Supp. S.J. in Pls.’ Favor (“Pls.’ Mem.”) 9.)
Some of those exhibits are discussed above. Of the remaining, some are duplicative (Pls.’ Exs.
G, DD, EE, FF, GG, KK; IHO Tr. 1054), some are writing samples (Pls.’ Exs. W, BB, MM;
Dist. Ex. (“Def.’s Ex.”) SDIV-I), and some irrelevant to the questions before the Court, (Pls.’
Exs. P, HH; Def.’s Ex. SDIV-R). Others are older reports of the kind outlined above, or similar
to other evidence discussed above, and do not affect the analysis. (Def.’s Exs. SDIV-B through
SDIV-H, SDIV-J through SDIV-Q, SDIV-S through SDIV-X.)
7
complaint notice. (SRO Op. 20.) In doing so, the SRO held that Plaintiffs’ letter of August 21,
2007, which informed the Defendant that Plaintiffs rejected the proposed IEP, did not trigger the
pendency provisions. (Id.)
B. Procedural Background
Plaintiffs initiated this lawsuit on January 23, 2009. Due to delay caused by Plaintiffs’
counsel, this motion was not fully submitted until May 7, 2010. The Court did not hold oral
argument.
II. Discussion
A. Standard of Review
1. IDEA
Unlike the case of 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 Viola v. Arlington Cent. Sch. Dist., 414 F. Supp. 2d 366, 377 (S.D.N.Y. 2006).
Thus, while the parties “may call the procedure a motion for summary judgment, the procedure
is in substance an appeal from an administrative determination, not a summary judgment.”
Lillbask ex rel. Mauclaire v. Conn. Dep’t of Educ., 397 F.3d 77, 83 n.3 (2d Cir. 2005) (internal
quotation marks and ellipse omitted); see also P. ex rel. Mr. P. v. Newington Bd. of Ed., 546 F.3d
111, 118 (2d Cir. 2008) (“[W]hile our review is de novo, it is tinged with a significant degree of
deference to the state educational agency, as we are essentially acting in an administrative-lawstyle capacity.”). Courts reviewing administrative decisions under the IDEA must determine
whether the 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.” Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 380
8
(2d Cir. 2003) (quoting 20 U.S.C. § 1415(i)(2)(C)(iii)); see also M.S. ex rel. S.S. v. Bd. of Educ.,
231 F.3d 96, 102 (2d Cir. 2000), abrogated on other grounds by Schaffer ex rel. Schaffer v.
Weast, 546 U.S. 49, 57-58 (2005). “In conducting this review, the court may reject factual
findings that are not supported by the record or are controverted by the record.” C.B. & R.B. ex
rel. W.B. v. N.Y.C. Dep’t of Educ., No. 02-CV-4620, 2005 WL 1388964, at *13 (E.D.N.Y. June
10, 2005).
The Supreme Court and the Second Circuit have cautioned “that IDEA’s statutory
scheme requires substantial deference to state administrative bodies on matters of educational
policy.” Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 191 (2d Cir. 2005) (citing Bd. of Educ.
v. Rowley, 458 U.S. 176, 205-08 (1982)). “While federal courts do not simply rubber stamp
administrative decisions, they are expected to 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.’” Walczak v. Fla. Union Free Sch. Dist.,
142 F.3d 119, 129 (2d Cir. 1998) (quoting Rowley, 458 U.S. at 206, 208) (internal quotation
marks and brackets omitted); see also A.C. ex rel. M.C. v. Bd. of Educ., 553 F.3d 165, 171 (2d
Cir. 2009) (same). Courts may not “substitute their own notions of sound educational policy for
those of the school authorities which they review.” M.S., 231 F.3d at 102 (internal quotation
marks omitted). Thus, where an SRO decision “is reasoned and supported by the record,” the
district court should not disturb it. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 114
(2d Cir. 2007); see also Newington, 546 F.3d at 118 (“‘Deference is particularly appropriate
9
when the state hearing officers’ review has been thorough and careful.’” (quoting Walczak, 142
F.3d at 129) (alteration omitted)).8
2. Claims for Tuition Reimbursement
Plaintiffs seek tuition reimbursement from Defendant on the basis that the CSE’s IEP did
not provide a FAPE. In Forest Grove School District v. T.A., 129 S. Ct. 2484 (2009), the
Supreme Court reaffirmed that the IDEA permits parents to seek reimbursement for the private
placement of a child who has not received a FAPE. Id. at 2496. Parents may receive tuition
reimbursement even if the child has not previously received special education or related services
from a public school or agency. See id. at 2491-93; see also N.Y.C. Dep’t of Educ. v. V.S., No.
10-CV-5120, 2011 WL 3273922, at *16 (E.D.N.Y. July 29, 2011). Generally, tuition
reimbursement for a private placement is warranted if: (1) “the proposed IEP was inadequate to
afford the child an appropriate public education, and (2) [] the private education services
obtained by the parents were appropriate to the child’s needs.” Walczak, 142 F.3d at 129 (citing
Sch. Comm. v. Dep’t of Educ., 471 U.S. 359, 370 (1985)); see also Frank G. v. Bd. of Educ., 459
F.3d 356, 363 (2d Cir. 2006) (same). Even if these two requirements are satisfied, however, the
Court retains discretion whether to award tuition reimbursement. See 20 U.S.C. §
1412(a)(10)(C)(ii) (“[A] court or a hearing officer may require the agency to reimburse the
8
Deference to the SRO is appropriate even where the SRO, at least in part, has disagreed
with the IHO. See Schreiber v. E. Ramapo Cent. Sch. Dist., 700 F. Supp. 2d 529, 547 n.9
(S.D.N.Y. 2010); see also A.C., 553 F.3d at 171 (“We ‘defer to the final decision of the state
authorities,’ even where ‘the reviewing authority disagrees with the hearing officer.’” (quoting
Karl ex rel. Karl v. Bd. of Educ. of Geneseo Cent. Sch. Dist., 736 F.2d 873, 877 (2d Cir. 1984));
Watson ex rel. Watson v. Kingston City Sch. Dist., 325 F. Supp. 2d 141, 145 (N.D.N.Y. 2004)
(“[D]eference to the final decision issued by a state agency on an issue of educational
methodology is no less appropriate simply because the SRO has disagreed with the IHO.”), aff’d,
142 F. App’x 9 (2d Cir. 2005).
10
parents for the cost of [private] enrollment.”). “Moreover, because the authority to grant
reimbursement is discretionary, ‘equitable considerations [relating to the reasonableness of the
action taken by the parents] are relevant in fashioning relief.’” Frank G., 459 F.3d at 363-64
(quoting Sch. Comm. v. Dep’t of Educ., 471 U.S. 359, 374 (1985)) (alteration in original).
Courts also “retain discretion to reduce the amount of a reimbursement award if the equities so
warrant—for instance, if the parents failed to give the school district adequate notice of their
intent to enroll the child in private school.” Forest Grove, 129 S. Ct. at 2496.
Because Defendant does not contest the SRO’s finding that the IEP was inappropriate,
the Court focuses solely on whether Kildonan was an appropriate placement for J.W. during the
2007-08 school year. On this issue, Plaintiffs bear the burden of proof. See A.C., 553 F.3d at
171-72; Frank G., 459 F.3d at 364 (“Parents seeking reimbursement for a private placement bear
the burden of demonstrating that the private placement is appropriate.”); R.B. v. N.Y.C. Dep’t of
Educ., 713 F. Supp. 2d 235, 238 (S.D.N.Y. 2010) (same).
“Subject to certain limited exceptions, ‘the same considerations and criteria that apply in
determining whether the school district’s placement is appropriate should be considered in
determining the appropriateness of the parents’ placement.” Gagliardo, 489 F.3d at 112
(quoting Frank G., 459 F.3d at 364) (alteration omitted); see also Mr. & Mrs. A. ex rel. D.A. v.
N.Y.C. Dep’t of Educ., 769 F. Supp. 2d 403, 418 (S.D.N.Y. 2011) (same). Thus, in determining
whether the parents’ unilateral placement is appropriate, “the issue turns on whether [the]
placement . . . is ‘reasonably calculated to enable the child to receive educational benefits.’”
Frank G., 459 F.3d at 364 (quoting Rowley, 458 U.S. at 207); see also Mr. & Mrs. A., 769 F.
Supp. 2d at 418 (same); R.B., 713 F. Supp. 2d at 244 (same); C.B., 2005 WL 1388964, at *16
(same).
11
“No one factor is necessarily dispositive in determining whether parents’ unilateral
placement is ‘reasonably calculated to enable the child to receive educational benefits.’” Frank
G., 459 F.3d at 364 (quoting Rowley, 458 U.S. at 207). The ultimate question is whether the
private placement “provides education instruction specifically designed to meet the unique needs
of a handicapped child.” Gagliardo, 489 F.3d at 115 (emphasis in original) (internal quotation
marks omitted); see also Frank G., 459 F.3d at 365 (“[C]ourts assessing the propriety of a
unilateral placement consider the totality of the circumstances in determining whether that
placement reasonably serves a child’s individual needs.”); E.S. ex rel. B.S. v. Katonah-Lewisboro
Sch. Dist., 742 F. Supp. 2d 417, 444 (S.D.N.Y. 2010) (“The Court must find that a
preponderance of the evidence supports the finding that the placement at [the private school]
provided [the student] with education instruction specifically designed to meet his unique
needs.”).
A court may consider a student’s progress in a private placement setting, but the Second
Circuit has made clear that the focus must remain on whether the placement satisfies the
student’s unique needs. “Grades, test scores, and regular advancement . . . constitute evidence
that a child is receiving educational benefit,” Frank G., 459 F.3d at 364 (emphasis added), but
“academic success at the private placement alone is not sufficient,” E.S., 742 F. Supp. 2d at 444.
Thus, while “[a] private placement meeting th[e] standard is one that is ‘likely to produce
progress, not regression,’” Gagliardo, 489 F.3d at 112 (quoting Walczak, 142 F.3d at 130), and
“a child’s progress is relevant to the court’s review,” “such progress does not itself demonstrate
that a private placement was appropriate,” id. at 115. The flip side also is true: lack of progress
itself does not mean that the parents’ placement was inappropriate. See P.K. ex rel. S.K. v.
N.Y.C. Dep’t of Educ., No. 09-CV-1472, 2011 WL 3625088, at *14-15 & n.12 (E.D.N.Y. Mar.
12
17, 2011) (concluding that private placement was appropriate, even though plaintiffs had not
provided any evidence of student’s progress at placement, based on testimony of educational
coordinator at private school who credibily demonstrated that “[t]he [private] program . . .
provide[d] the very services [the court had] found lacking in [student’s] IEP”).
Notably, “the standard applied to . . . parental placements is less restrictive and subject to
fewer constraints than that applied to the school authorities.” C.B., 2005 WL 1388964, at *16;
see also M.H. v. N.Y.C. Dep’t of Educ., 712 F. Supp. 2d 125, 163 (S.D.N.Y. 2010) (noting that
parents’ “unilateral placement does not have to ‘meet the IDEA definition of a free appropriate
public education.’” (quoting Frank G., 459 F.3d at 364)); A.D. v. Bd. of Educ., 690 F. Supp. 2d
193, 206 (S.D.N.Y. 2010) (noting that “[t]he standards for determining whether a private school
placement is ‘appropriate’ under the IDEA closely resemble, but do not mirror, the standards for
assessing the adequacy and appropriateness of the proposed public placement.”). For example,
“[t]he parents’ unilateral placement need not have certified special education teachers or an IEP
for the disabled student in order to qualify as appropriate.” Gabel ex rel. L.G. v. Bd. of Educ.,
368 F. Supp. 2d 313, 326 (S.D.N.Y. 2005) (citing Florence Cnty. Sch. Dist. v. Carter, 510 U.S.
7, 14 (1993)); see also R.E. v. N.Y.C. Dep’t of Educ., No. 10-CV-3176, 2011 WL 924895, at *13
(S.D.N.Y. Mar. 15, 2011) (same); cf. Frank G., 459 F.3d at 364 (noting that “[a]n appropriate
private placement need not meet state education standards”). Nor is the parents’ placement
“‘subject to the same mainstreaming requirements as a school board.’” Frank G., 459 F.3d at
364 (quoting M.S., 231 F.3d at 105); see also M.H., 712 F. Supp. 2d at 163 (same); Gabel, 368 F.
Supp. 2d at 326 (“[W]hile students with disabilities should be educated in the least restrictive
environment, parents are not held to the same strict standard of placement as school districts
are.” (citation omitted)). “Nonetheless, IDEA’s requirement that an appropriate education be in
13
the mainstream to the extent possible remains a consideration that bears upon a parent’s choice
of an alternative placement and may be considered by the hearing officer in determining whether
the placement was appropriate . . . .” M.S., 231 F.3d at 105 (reversing district court’s award of
tuition to student’s parents where SRO refused tuition on the grounds that the private placement
was too restrictive); see also Muller ex rel. Muller v. Comm. on Special Educ., 145 F.3d 95, 105
(2d Cir. 1998) (“[T]he presumption in favor of mainstreaming must be weighed against the
importance of providing an appropriate education to handicapped students.” (internal quotation
marks omitted)).9
B. Plaintiffs’ Placement
As noted above, Plaintiffs bear the burden of demonstrating that the SRO’s determination
that Kildonan was not an appropriate placement is not supported by “the preponderance of the
9
The Second Circuit recently adopted a two-part test employed by several other circuit
courts for determining whether an IEP provides the least restrictive environment possible: (1)
“whether a student can be satisfactorily educated in the regular classroom with the benefit of
supplemental aids and services;” and (2) if the school district was justified in removing the
student from the mainstream classes, “whether the school has included the child in school
programs with nondisabled children to the maximum extent appropriate.” Newington, 546 F.3d
at 120; accord L.B. ex rel. K.B. v. Nebo Sch. Dist., 379 F.3d 966, 976 (10th Cir. 2004);
Sacramento City Unified Sch. Dist. v. Rachel H., 14 F.3d 1398, 1403-04 & n.5 (9th Cir. 1994);
Oberti ex rel. Oberti v. Bd. of Educ., 995 F.2d 1204, 1215 (3d Cir. 1993). In considering the first
prong, courts should consider whether “reasonable efforts [were made] to accommodate the
child in a regular classroom,” “the educational benefits available to the child in a regular class,
with appropriate supplementary aids and services, as compared to the benefits provided in a
special education class,” and potential “negative effects . . . on the education of the other
students in the class.” Newington, 546 F.3d at 120; see also L. ex rel. Mr. F. v. N. Haven Bd. of
Educ., 624 F. Supp. 2d 163, 180-81 (D. Conn. 2009) (same). As noted above, parents are not
held to the same mainstreaming requirements as school districts. However, because
mainstreaming may be a factor in deciding the appropriateness of a private placement, and
because the test is designed to help courts decide whether a placement is the least restrictive
environment, the above factors may be useful in determining the overall appropriateness of the
parental placement. See M.H., 712 F. Supp. 2d at 165 (evaluating whether parents’ placement
was least restrictive environment using the Newington test).
14
evidence.” Grim, 346 F.3d at 380 (internal quotation marks omitted); see also Frank G., 459
F.3d at 364 (noting that the burden is on the parents to demonstrate that a placement was
appropriate). Despite the fact that the SRO based his decision largely on an absence of concrete
information about the program J.W., in particular, was offered at Kildonan, Plaintiffs have not
availed themselves of the opportunity to present new, and more specific, evidence to fill in the
gaps identified by the SRO. See Grim, 346 F.3d at 380 (noting that courts should “tak[e] into
account not only the record from the administrative proceedings, but also any further evidence
presented before the District Court by the parties”); see also Arlington Cent. Sch. Dist. v. D.K.,
No. 02-CV-2117, 2002 WL 31521158, at *9 (S.D.N.Y. Nov. 14, 2002) (“[D]ue weight [] should
be accorded to the SRO’s determination, particularly where, as here, the parties have presented
no new evidence . . . .” (internal quotation marks omitted)).10
As reflected above, the record certainly contains some evidence regarding J.W.’s
progress at Kildonan, as well as the general educational philosophy of Kildonan and the class
size and tutoring that J.W. received there. However, the SRO’s conclusions about Plaintiffs’
placement are substantiated by the evidence about J.W.’s significant and continuing deficits in
reading and mathematics and the dearth of evidence about the level or content of the curriculum
J.W. was offered. Indeed, as the SRO noted, the record does not provide sufficient evidence to
10
Plaintiffs’ failure to introduce more evidence is baffling given that Plaintiffs, in their
Complaint, requested that this Court conduct “a hearing to take . . . additional evidence.”
(Compl. ¶ 6.) However, Plaintiffs did not follow up on this request – they did not write a letter
to the Court or even appear at the one conference held in this case (a conference requested by
Defendant). This request is not reiterated in Plaintiffs’ Memorandum of Law, nor is there any
suggestion as to what the new evidence might be. Plaintiffs do reference exhibits that the IHO
did not allow them to enter and assert that they are included in the administrative record (Pls.’
Mem. 5), but Plaintiffs’ Memorandum before the IHO (which contained these exhibits) is not
contained in the record provided to the Court. Plaintiffs have similarly failed to substantiate
their claim of procedural irregularity. (Compl. ¶ 6.)
15
understand the reasons behind J.W.’s progress and regression, or what skills J.W. mastered, or
why J.W.’s mathematical ability continued to decline even after the more intensive tutoring
began. (SRO Op. 18-19.) J.W.’s uneven progress provides significant support for the SRO’s
conclusion that, whatever program Kildonan provided him, it was not appropriate to J.W.’s
needs. Cf. Frank G., 459 F.3d at 366-67 (noting that IHO and SRO had concluded that
placement was inappropriate because evidence showed lack of progress there, while district
court had overruled that determination based on other evidence that showed significant progress;
that evidence, together with the program offered at placement, supported district court’s
conclusion that placement was appropriate). All of these facts in the record support the SRO’s
conclusion that Plaintiffs did not meet their burden of justifying their request for reimbursement.
(SRO Op. 19.) See M.S., 231 F.3d at 105 (“An assessment of educational progress is a type of
judgment for which the district court should defer to the SRO’s educational experience,
particularly where . . . the district court’s decision was based solely on the record that was before
the SRO.”); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 432 (S.D.N.Y. 2007)
(holding that parents had failed to show Kildonan School was appropriate placement because the
SRO’s conclusion “that Kildonan did not meet [the student’s] special needs in numerous respects
[was] sound and fully supported by the evidence”), aff’d, 293 F. App’x 20 (2d Cir. 2008).
The only way this Court could determine that the SRO erred is by crediting the testimony
of J.W.’s father, who stated his belief that J.W. could not succeed in a more mainstreamed
environment (IHO Tr. 464-67), and by relying generally on the specialized nature of the care
provided by Kildonan. Even this, however, would not establish that Kildonan “provides
16
education instruction specifically designed to meet the unique needs of [J.W.].” Gagliardo, 489
F.3d at 115 (emphasis in original) (internal quotation marks omitted). The father’s testimony is
the sort of evidence the Second Circuit has warned district courts against relying on to overturn
well reasoned decisions of SROs. See M.S., 231 F.3d at 105 (holding that district court
“inappropriately substituted its own subjective judgment about what are appropriate measures
for educational progress” where the court considered, inter alia, student’s father’s testimony that
student was happier and read more while at private placement). Moreover, neither of these
points undercuts the SRO’s conclusion, based on a thorough review of the record before him,
that the Kildonan placement was not appropriate for J.W. during the 2007-2008 school year. See
Matrejek, 471 F. Supp. 2d at 428-30 (concluding that parents failed to demonstrate that Kildonan
School was appropriate placement for child because school’s program did not satisfy several of
child’s needs and child’s progress there had been uneven).11 Defendant’s Motion for Summary
Judgment on the issue of the Plaintiffs’ placement, therefore, is granted.
C. Pendency Payments
All Parties, and the SRO, agree that Kildonan was J.W.’s pendency placement for 200708, but Plaintiffs appeal the portion of the SRO’s Opinion that held that Defendant’s liability
under a pendency theory began on February 28, 2008, when Plaintiffs filed a due process
complaint. (SRO Op. 20; Compl. ¶¶ 45-46.) Defendant moves for summary judgment on this
point and, though Plaintiffs oppose the Motion, Plaintiffs cite no law and make no arguments in
11
The Court notes that counsel for Plaintiffs asserts that the SRO in this case was biased
(Pls.’ Mem. 10-11), citing absolutely no evidence to substantiate such a serious claim.
17
defense of their position. (Pls.’ Mem. 13.) Plaintiffs sent a “10 day letter” to Defendant in
August 2007. (Pls.’ 56.1 Stmt. ¶ 68 (denied by Defendant).) The SRO concluded that “[i]n
order to invoke the pendency provisions of the IDEA, a due process proceeding must be
pending,” and that the Plaintiffs’ “letter of August 21, 2007 merely informed the district of the
[Plaintiffs’] rejection of the program recommended pursuant to the May 3, 2007 IEP, and did not
by itself initiate a due process proceeding.” (SRO Op. 20.) The SRO, therefore, concluded that
the pendency provisions of the IDEA were not triggered “until February 28, 2008, the date of
[Plaintiffs’] due process complaint notice.” (Id. at 21.)
The IDEA provides that “during the pendency of any proceedings conducted pursuant to
this section, unless the State . . . and the parents otherwise agree, the child shall remain in the
then-current educational placement of the child.” 20 U.S.C. § 1415(j). The plain language of
the statute, therefore, suggests that the provision only applies “during the pendency of any
proceedings,” and not, as Plaintiffs suggest, before such a proceeding has begun. See Mackey ex
rel. Thomas M. v. Bd. of Educ., 386 F.3d 158, 160 (2d Cir. 2004) (noting that “federal and state
law require that the child remain in his or her then-current educational placement” “[d]uring the
pendency of special education proceedings”); Bd. of Educ. v. Schutz, 290 F.3d 476, 485 (2d Cir.
2002) (holding that the school district was “required to pay the costs of tuition at Kildonan
during the pendency of the proceedings”). In Mackey v. Board of Education for the Arlington
Central School District, No. 02-CV-8360, 2005 U.S. Dist. LEXIS 15908 (S.D.N.Y. Mar. 9,
2005) (“Mackey”), the court dealt with an almost identical situation to the one presented in this
case. The plaintiffs in that case had objected to the defendant school district’s placement at a
18
meeting, and informed the school district that they would make a unilateral private placement.
ld at *4. However, the plaintiffs waited over two months to request an impartial hearing. ld. at
*5. Because this delay could not be attributed to the defendant, the court held that the plaintiffs'
initial objections did not trigger the defendant district's pendency obligations. ld. at *5-6 & n.3.
Here, the August 21,2007 letter that Plaintiffs wrote to Defendant rejected Defendant's
proposed IEP, and informed Defendant that Plaintiff intended to seek reimbursement for placing
lW. at Kildonan. (Pis.' Ex. D.) The letter ends by stating "[ill is my understanding that we
have one year from the date of the IEP for an impartial hearing to take place .... You can expect
to hear from us in the near future requesting an impartial hearing:' (Jd.) Plaintiffs, therefore,
knew that they were not initiating proceedings by sending this letter and, as in Mackey, the delay
between Plaintiffs' objections and the start of the proceedings that triggered Defendant's
pendency obligations can only be attributed to Plaintiffs. Plaintiffs provide no reasons why the
Court should not follow the rule laid out in Mackey and, therefore, Defendant's Motion for
Summary Judgment on this issue is granted.
III. Conclusion
For the reasons given above, Defendant's Motion for Summary Judgment is granted.
The Clerk of the Court is respectfully request to terminate the pending motion (Dkt No. 11),
enter judgment for Defendant, and close the case.
SO ORDERED.
DATED:
White Plains, New York
September 6, 20 II
ETH M. KARI~S
ED STATES DISTRICT JUDGE
19
Service List (via ECF)
RosaLee Charpentier, Esq.
The Law Office of Salamon Davis
39 West 37th Street, 3rd Floor
New York, N.Y. 10018
rlc831 @earthlink.net
Mark Craig Rushtield. Esq.
Shaw. Perelson. May & Lambert LLP
21 Van Wagner Road
Poukeepsie, N.Y. 12603
mrushfield@shawperelson.com
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?