Avaras v. Clarkstown Central School District et al
Filing
75
OPINION AND ORDER re: 62 MOTION for Summary Judgment Defendants Clarkstown Central School District and the Board of Education of the Clarkstown Central School District's Notice of Motion for Summary Judgment Dismissing Plaintiff's Amended Complaint. filed by Clarkstown Central School District, Board of Education, 38 FIRST MOTION to Dismiss plaintiff's Amended Complaint. filed by New York State Department of Education. For the foregoing reasons, th e District Defendants' motion for summary judgment is GRANTED in part and DENIED in part, and the Department's motion to dismiss is GRANTED. All of Plaintiff's non-IDEA claims are dismissed. As for Plaintiff's IDEA claims, the C ourt finds that 1) Plaintiff's pre-2012-2013 claims are time- barred, 2) A.A. was denied a free and appropriate public education for the 2012- 2013 and 2013-2014 school years, and 3) Hawk Meadow was an appropriate alternative for A.A. in light of his unique educational needs. Because there is an insufficient record for this Court's review on the final prong of the Burlington/Carter test, and all of Plaintiff's other claims have been dismissed, this matter is REMANDED to the IHO to consider the narrow issue of whether the equities favor reimbursing Plaintiff for the costs associated with A.A.'s private placement at Hawk Meadow for the school years (2012-2013 and 2013-2014) when he was denied a free and appropriate p ublic education by the District. See E.M v. N Y.C. Dep't of Educ., 758 F.3d 442, 463 (2d Cir. 2014) (often it is more useful for a district court to "remand the matter to state administrative officers for a [] reexamination in light of&q uot; the court's decision). Should either party wish to appeal any eventual determination by the IHO, or SRO, on the equities of reimbursement, they should file a new complaint on that limited issue indicating the case is related to this prior litigation. The Clerk of the Court is respectfully requested to terminate the pending motions at ECF Nos. 38 & 62 and to close the case. (Signed by Judge Nelson Stephen Roman on 7/17/2017) (rj)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CONNIE AVARAS, individually and as parent of A.A.,
Plaintiffs,
OPINION & ORDER
-againstCLARKSTOWN CENTRAL SCHOOL DISTRICT,
BOARD OF EDUCATION FOR THE CLARKSTOWN
CENTRAL SCHOOL DISTRICT, and NEW YORK
STATE DEPARTMENT OF EDUCATION,
No. 15 Civ. 2042 (NSR)
Defendants.
NELSONS. ROMAN, United States District Judge
Plaintiff Connie Avaras, individually and as parent of A.A., brings this action prose
against the Clarkstown Central School District (the "District"), the Board of Education for the
District 1 (the "Board") (collectively the "District Defendants"), and the New York State
Department of Education (the "Department") pursuant to the Individuals with Disabilities
Education Improvement Act ("IDEA" or "IDEIA"), 20 U.S.C. § 1400 et seq., Title II of the
Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12181 et seq., Section 504 of the
Rehabilitation Act of 1973 ("RA"), 29 U.S.C. § 794, and 42 U.S.C. § 1983 ("Section 1983").
Predominantly, Ms. Avaras seeks judicial review of a decision made by a State Review Officer
("SRO") at the Depmtment, who affirmed the decision of an Independent Hearing Officer
("IHO"), denying Ms. Avaras's request for tuition reimbursement and other expenses associated
1
The Clarkstown District Defendants have indicated that the Board of Education of the Clarkstown
Central School District was incorrectly named as the "New City Board of Education." The Clerk of the Court is
respectfully directed to amend the case caption accordingly, as reflected in this Opinion .
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with a private school placement after finding that the District offered A.A. a free and appropriate
public education for the 2012-2013 school year and that, although the District did not offer such
an education for the 2013-2014 school year, her unilateral alternative placement for A.A. was
also inadequate. Plaintiff also alleges the Defendants’ treatment of A.A. and herself violated the
ADA, RA, and Section 1983.
Before the Court are the District Defendants’ motion for summary judgment, and the
Department’s motion to dismiss. (ECF Nos. 62 & 38.) For the reasons set forth below, the
District Defendants’ motion is GRANTED in part and DENIED in part. The SRO’s decision is
AFFIRMED in part, REVERSED in part, and REMANDED on a limited issue. Plaintiff’s
claims asserted against the District Defendants pursuant to the ADA, RA, and Section 1983 are
DISMISSED. The Department’s motion is GRANTED and all claims against it DISMISSED.
BACKGROUND
I.
Factual Background
The parties have submitted briefs, statements of material facts pursuant to Local Civil
Rule 56.1, and the record and exhibits from the proceedings below, 2 which reflect the following
factual background. 3
2
The District Defendants’ motion for summary judgment was fully briefed as of May 4, 2016. (See Defs.
Mot. Summ. J., ECF No. 62; Defs. Rule 56.1 Statement (“Dist. 56.1”), ECF No. 65; Defs. Mem. in Supp. Mot.
(“Dist. Mem.”), ECF No. 64; Decl. Laurel R. Kretzing in Supp. Mot. (“Kretzing Decl.”), ECF No. 63; Pls. Counter
Statement to Defs. 56.1 (“Pls. Resp. 56.1”), ECF No. 68; Pls. Opp’n to Defs. Mot. (“Pls. Opp’n”), ECF No. 67;
Defs. Mem. in Reply to Pls. Opp’n (“Dist. Reply”), ECF No. 73.)
3
For ease of reference, this decision refers to the testimony and evidence introduced at the hearing before
the IHO. Citations prefixed by “C.R.” refer to the page number in the Certified Record before the Court containing
the relevant exhibit or hearing testimony. Referenced exhibits prefixed by “D-” refer to the District’s exhibits and
those prefixed by “P-” refer to Plaintiff’s exhibits introduced at the impartial hearing. Exhibits introduced by the
IHO are prefixed with “IHO Ex.” Hearing testimony is denoted by the witnesses’ last name. (See Dist. 56.1 ¶¶ 3839 (listing the witnesses at the hearing).)
2
A. Record Adduced at Hearing by the IHO
At the independent hearing held to determine the appropriateness of the education plan
provided by the District to A.A., four witnesses testified on behalf of the District: Meredith Grant
(school psychologist), Arnold Fucci (executive director of pupil services), Eileen Mahoney
(special education teacher), and Amy Avecilla (school psychologist). Five witnesses testified on
behalf of Plaintiff and A.A.: David Carlson (a chairperson for the committee on special
education (CSE) convened to determine the appropriate educational program for A.A), Rhonda
Graff (general education teacher), Suzanne Braniecki, Ph.D. (clinical psychologist), Erin Castle
(co-founder and co-director of Hawk Meadow Montessori School), and Plaintiff. 4 The Court
summarizes the salient portions of the documentary and testimonial evidence below, referring to
the IHO’s summary and specific record citations as needed.
A.A. was born on July 17, 2002, and he was 12 years old at the time the hearing was
conducted in 2014. (C.R. 49 (“IHO Opinion”).) A.A. was a student at Woodglen Elementary
School, a school within the District, until his parents placed him in an alternative program for his
fifth grade year. (C.R. 50.) A.A.’s struggles with reading were first noticed by his mother and
teacher in kindergarten. (C.R. 50.) At that time, he received an education support of 30 minutes
per day of small group reading. (C.R. 50; C.R. 60 (Grant).)
a. 2008-2009: First Grade
The District began providing additional education supports to A.A. during his first grade
year. By letter dated November 14, 2008, Woodglen’s principal advised A.A.’s parents that the
school was recommending “academic intervention services” (AIS) based on his performance on
4
The transcripts of the testimony alone constituted nearly 4,000 pages. Additionally, numerous exhibits
were presented by the parties and received into evidence.
3
state assessments. (C.R. 50; C.R. 5188 (D-67).) Plaintiff acknowledged receipt of that letter,
ostensibly agreeing to A.A. receiving those additional literacy support services during the regular
school day. (Id.) Ms. Grant, the school’s psychologist, testified that A.A. received “building
level reading support” at that time as part of a “Response to Intervention” (RTI). (C.R. 50.) She
also indicated that it was during this year that Plaintiff shared with Ms. Grant the extent of
A.A.’s challenges from his preschool years, including “emotionality,” hyperactivity, and
aggressive behavior directed at his brother. (C.R. 574 (Grant).) Ms. Mahoney, the special
education teacher, became familiar with A.A. around this time and began using the “Wilson
reading program” with him. (C.R. 100 (Mahoney).)
Ms. Grant testified that she had “extensive” discussions with Plaintiff regarding
conducting a special education evaluation for A.A., but Plaintiff indicated she and A.A.’s father
were not in agreement on how to address his academic issues. (C.R. 74; see also C.R. 575, 584
(Grant) (“Dad was against Special Ed.”).)
b. 2009-2010: Second Grade
During his second grade year, aside from his academic performance struggles which
largely contrasted with his social skills (C.R. 117 (Graff) (“academically, the Student was really
below, but socially he seemed to be almost above”)), the District and Ms. Graff—A.A.’s regular
education teacher at that time—noted that A.A. also struggled with completing homework on
time. (C.R. 51-52.) 5 On September 29, 2009, A.A. was referred to the RTI team, which
implemented a plan to provide additional support for him during the second grade. (C.R. 51.)
5
The District also contended that A.A. struggled with tardiness and absences. (C.R. 51-52.) But at the
hearing, Plaintiff contested the issue of A.A.’ absences, noting that the report card from his second-grade year
indicated he was absent 13 times and late only 8 times. (C.R. 74.) Ms. Mahoney confirmed that these were not
listed as issues in the comments section of the report card. (C.R. 101 (Mahoney).)
4
This included one visit by a District employee to the family home in order to assist with
organizing A.A.’s learning environment. (C.R. 51.)
The minutes from the RTI meeting indicate that A.A. did not want to go to a special
education “pull-out.” (C.R. 51; C.R. 5212 (D-75) (the notes from the RTI implementation plan
state Ms. Graff relayed this information).) Instead, Ms. Graff provided specialized reading
instruction using the “Wilson program” to him in her general education classroom. (C.R. 51; see
also C.R. 116 (Graff).) 6 Ms. Grant testified that although Plaintiff expressed concerns about
A.A.’s progress, Plaintiff and her husband were still not in agreement on how to remedy the
situation. (C.R. 53.) In particular, the parents felt that Ms. Mahoney’s special education
classroom was not “socially appropriate” for A.A. (C.R. 53; C.R. 5215 (D-76).) 7 Because
A.A.’s father did not want to move forward with a special education referral, the District—in
Ms. Grant’s opinion—attempted to respect the family’s wishes by moving forward through the
support offered via the RTI process. (C.R. 53; C.R. 87 (Grant); see also C.R. 102 (Mahoney).)
Eventually the RTI team determined, however, that the supports were not enough.
(C.R. 54.) After discussing the issue with A.A.’s parents at an RTI meeting, in early 2010 the
parents provided, though not without hesitation, their consent to move A.A. into Ms. Mahoney’s
class for ELA. (C.R. 54; C.R. 120-21 (Graff) (testifying that Plaintiff agreed to A.A. attending
Ms. Mahoney’s class for English Language Arts (ELA) and Math as part of the RTI process);
6
Although Plaintiff testified that A.A. was “moved” at this time into a special education classroom with
Ms. Mahoney where he remained for the entire year, the remainder of the testimony demonstrates he was not yet
receiving the majority of his instruction in the special education classroom. (C.R. 52; but see C.R. 5212 (D-75)
(noting Ms. Graff was using the Wilson program in her classroom with A.A.), 5215 (D-76) (noting A.A. was
attending Ms. Mahoney’s class for Math but not for English instruction), 117 (Graff) (indicating students with
individualized educational plans (IEPs) were mainstreamed for science and social studies), 120-21 (Graff)
(testifying that Plaintiff agreed to A.A. receiving reading instruction services as part of the RTI prior to his
classification).)
7
There is also evidence in the record that A.A.’s general education teacher felt her classroom was
“chaotic” because of behavioral issues with some of Ms. Mahoney’s other students. (C.R. 119 (Graff).)
5
compare C.R. 118 (Graff) (noting he began to attend the special education class in November or
December 2009), with C.R. 5256 (D-90) (email chain from January 2010 where Ms. Mahoney is
explaining to the other members of the RTI team the urgent need to transfer A.A. into her ELA
class) and C.R. 4887 (P-GG) (email from Plaintiff dated February 2, 2010, acknowledging
A.A.’s pending move to Ms. Mahoney’s class).) Plaintiff testified at the hearing that A.A. found
the environment in the special education class distracting and was very unhappy once he spent
the majority of his educational time there. (C.R. 54; see also C.R. 3793 (Avaras) (explaining by
way of an example that A.A. could not concentrate because they put him next to a student that
was “rocking” back and forth).)
Notably, Ms. Graff testified that after the RTI meeting A.A. spent only 37 minutes per
day in her classroom—meaning he spent the vast majority of his time in the special education
classroom. (C.R. 123 (Graff).)
A.A. was also referred to the CSE at that time for evaluation. (C.R. 54; C.R. 87 (Grant);
C.R. 4886 (P-FF) (letter from Plaintiff dated March 22, 2010, providing consent for evaluation).)
A CSE meeting to determine his eligibility for special education services was held on April 13,
2010, concurrent with the CSE’s annual review where it would formulate A.A.’s IEP for his next
year of education, including recommended supports and services. (C.R. 55.) At the meeting, the
CSE considered a letter provided by A.A.’s pediatrician, Dr. Satran, diagnosing A.A. with
attention deficit hyperactivity disorder (ADHD). (C.R. 55; C.R. 5015 (D-13) (diagnosis letter
dated April 12, 2010).) Plaintiff participated in the meeting, which resulted in the classification
of A.A. as “Other Health Impaired” (OHI), though she testified she was unaware there were
other potential classifications. (C.R. 56.) Ms. Grant testified that “all felt that OHI was the most
accurate” classification, rather than a learning disability, given the ADHD diagnosis. (C.R. 77.)
6
The IEP developed by the CSE recommended that for the remainder of the 2009-2010
school year and for the 2010-2011 school year (third grade) A.A. would be placed in a special
math and ELA class with a ratio of fifteen students to one teacher (15:1) for a total of two hours
and fifteen minutes per day and would receive direct consultant teacher services for two hours
per week in science and social studies provided in the general education classroom. (C.R. 5016
(D-14) (IEP for 2009-2010 (indicating two hours per week of consultant teacher services));
C.R. 5026 (D-17) (IEP for 2010-2011 (indicating 30 minutes per day of consultant teacher
services)).) Although, as part of the developed IEP (C.R. 5016 (D-14)), Plaintiff consented to
the initiation of special education services for A.A. (C.R. 5025 (D-16)), 8 including his continued
partial placement in the special education class, she noted her objection to his “segregation” from
the “mainstream population,” particularly in light of his discontentment with the shift. (C.R. 57.)
Ms. Mahoney indicated at the hearing that A.A. had “really started to improve” once he
was classified. (C.R. 104.) Though Ms. Graff did not attend the CSE meeting, she believed
A.A. needed a “multisensory” program to support his reading instruction. (C.R. 122.) She also
felt that A.A. needed to socialize with children at his level and that the recommended program
was not appropriate. (C.R. 124.) But, Ms. Graff never voiced these concerns because there were
no other choices available. (C.R. 124.)
Plaintiff also testified that, because she questioned the ADHD diagnosis, she took A.A.
for an evaluation by Dr. Bruce Roseman on July 7, 2010. (C.R. 57.) Dr. Roseman diagnosed
A.A. as having a pediatric speech sound disorder, dyslexia, problems with auditory processing,
and attention deficit disorder (ADD) as a secondary phenomenon. (C.R. 58; C.R. 4880 (P-CCC)
8
When Plaintiff consented to the initiation of special education services, she also acknowledged receiving
“a copy of the Procedural Safeguards Notice that is required by the [IDEA].” (C.R. 5025 (D-16); see also C.R. 5013
(D-12) (notice of CSE meeting to determine A.A.’s initial eligibility which also indicated Plaintiff had previously
received a “Procedural Safeguards Notice” but could request another copy if needed).)
7
(report dated July 7, 2010 indicating “the dictionary of [his] mind is not organized”); C.R. 4869
(P-X) (letter dated May 16, 2012, clarifying his prior diagnosis as deciding A.A. was “a prime
candidate to suffer from Dyslexia”).) Although Plaintiff testified that she dropped off a copy of
this report with a secretary at Woodglen around September 2010, the District indicated it never
received a copy until the Independent Hearing process began. (C.R. 89.)
c. 2010-2011: Third Grade
Ms. Mahoney was not A.A.’s teacher during his third grade year; rather, Mrs. Mirenberg
taught his special education class. (C.R. 104.) Ms. Mahoney spoke with Mrs. Mirenberg and
determined that A.A. was “progressing” but attendance was sometimes an issue. (C.R. 104.)
A.A. was absent 21 days and tardy 74 days during his third-grade year. (C.R. 78; C.R. 5189 (D68A).) Plaintiff testified that A.A. declined socially and emotionally during his third grade year
and was bullied by his non-disabled and disabled peers. (C.R. 59.) Ms. Grant, in contrast,
considered A.A. to be a “happy child” rather than a “tortured” soul—and testified that Plaintiff
never brought up the issue of bullying until much later when A.A. was placed at Hawks
Meadow. (C.R. 59.) A.A.’s IEP progress report and report card for the third grade indicated that
he made progress on all of his goals and on his overall educational development. (C.R. 5193 (D70), 5208 (D-73).)
During the CSE meeting held in April 2011 for developing A.A.’s IEP for the next
academic year, the CSE recommended the same programs that were in place in April 2010 along
with some additional testing accommodations. (C.R. 58.) The IEP no longer included, however,
the consultant teacher services. (C.R. 5036-45 (D-20).) Although Plaintiff participated in the
meeting, she testified that she voiced her disagreement with A.A.’s placement in the special
education classroom and wanted to discuss alternatives. (C.R. 58.) Plaintiff testified that she
8
raised her concerns that he was functioning academically below where he should have been and
was being bullied. (C.R. 61.) She testified that she requested his return to the mainstream
general education classroom but the CSE members denied that request. (C.R. 61.) Ms. Grant
testified that the CSE determined the level of support A.A. needed was beyond what could be
offered in the mainstream setting. (C.R. 80; see also C.R. 5037 (D-20) (noting A.A. could not
keep up in his social studies class without support).) Plaintiff consented to the IEP at that time.
(C.R. 5037 (D-20).)
At the hearing, Ms. Grant opined that A.A. fit well within the special education
classroom and his academic performance was consistent with the others in that class. (C.R. 62.)
Specifically, she referenced his performance on the “Group Reading Assessment & Diagnostic
Evaluation” (GRADE), noting his similar performance to peers in the class. (C.R. 79.)
d. 2011-2012: Fourth Grade
Ms. Mahoney was again A.A.’s special education teacher during his fourth grade year.
(C.R. 104.) Her view remained consistent—that A.A. required special class support for Math
and English and that the special education was a good fit for him socially. (C.R. 106.) She felt
his “difficulties” were exacerbated by showing up late to class or missing school. (C.R. 109; see
also C.R. 5192 (D-69A) (A.A. had fifteen absences and thirty-two instances of tardiness that
year).) Plaintiff testified that A.A. continued to attend school in the District, but that “he hated
it.” (C.R. 63.) She also noted that he continued to have difficulty with homework, and that Ms.
Mahoney worked with him after school. (C.R. 63.) A.A.’s IEP progress report and report card
for fourth grade indicated that he had achieved all of his IEP goals and made progress on his
overall educational development. (C.R. 5198-5203 (D-71), 5210-11 (D-74).)
9
i. Annual IEP Review
The annual review of A.A.’s IEP for the upcoming year was eventually (after some
rescheduling) held on May 11, 2012. (C.R. 64.) After again noting A.A.’s discontentment at
school, the CSE added counseling services in a small group, 30 minutes a week, to address selfesteem issues at Plaintiff’s request. (C.R. 64; C.R. 5052-5061 (D-24).) Ms. Mahoney’s view of
Plaintiff’s involvement at the meeting was that she was “an active participant” who agreed with
and did not object to the IEP recommendations. (C.R. 108; but see C.R. 5053 (D-24) (noting
Plaintiff raised concerns regarding A.A.’s unhappiness and only noting that the committee
members were in agreement).) The IEP indicated that A.A. had “made wonderful progress” in
reading, was in an advanced reading group, and noted that on the GRADE assessment he scored
in the 5th Stanine, 45th percentile (within the average range). (C.R. 5054-55 (D-24).)
ii. Evaluations of A.A. Post-Annual Review
After the meeting, Plaintiff took A.A. back to Dr. Roseman on May 16, 2012, who issued
a letter to Dr. Satran opining that, although he could take no position as to whether A.A. had
made progress at the District, he still believed A.A. suffered from a pediatric speech sound
disorder, problems with auditory processing, dyslexia, and ADD secondarily. (C.R. 65-66;
C.R. 4869-70 (P-X).) Ms. Mahoney indicated she had never seen Dr. Roseman’s reports.
(C.R. 109.) Dr. Braniecki also conducted an evaluation of A.A. at that time on May 18, 2012,
but she could not definitively conclude that he had a reading disorder. (C.R. 58; C.R. 127
(Braniecki).) Instead, she opined that A.A. had a learning disability in written expression and
that his performance on the testing was consistent with individuals with attention difficulties.
(C.R. 129-30, 132, 133-34 (“her findings were consistent with a diagnosis of ADHD and a
learning disability,” but “she could not diagnose him with a reading disability”).) Dr. Braniecki
10
did not think a classification of learning disabled should replace the classification of OHI, in
large part because she believed both classification were accurate and the disabilities “impact
each other.” (C.R. 142 (Braniecki).) The weight of the record testimony and evidence indicates
that the District was unaware of Dr. Braniecki’s analysis until a year later. 9 (C.R. 5113 (D-44)
(consent form received by District in June 2013).)
iii. Rejection of IEP and Decision to Place A.A. at Hawk Meadow
Plaintiff, by letter dated June 4, 2012, rejected the IEP developed for A.A.’s fifth grade
year. (C.R. 66; C.R. 5062 (D-25).) Then, on August 20, 2012, Plaintiff informed the District
that she would unilaterally be placing A.A. at Hawk Meadow and sought reimbursement for
tuition and transportation costs. (C.R. 67; C.R. 5066 (D-29).)
A CSE meeting to discuss revising the IEP was eventually held on September 28, 2012.
(C.R. 68.) There was no finding made by the CSE as to whether the District’s program and the
program offered by Hawk Meadow were comparable. (C.R. 90 (Fucci); C.R. 115 (Carlson)
(indicating he had reached out to Ms. Castle at Hawk Meadow to learn about the school prior to
the CSE meeting).) Mr. Fucci testified at the hearing, however, that he was concerned with the
small number of students in the school and that both the school and its staff lacked state
certification. (C.R. 91 (Fucci).) In contrast, at the hearing, Dr. Braniecki testified that a
Montessori education might be appropriate, even without special education programming,
because the typical strategies used in a Montessori education have been found to be helpful for
children with disabilities. (C.R. 139.) At the meeting, the District agreed to provide
transportation for A.A. to Hawk Meadow in resolution of Plaintiff’s ten-day notice and tuition
9
Plaintiff testified that she shared Dr. Braniecki’s evaluation with the District verbally in May or June
2012 and provided a copy of the written report in August 2012. (C.R. 66.) The documentary evidence, however,
only indicates Plaintiff provided consent for Dr. Braniecki to share the results in June 2013—a year later. (C.R. 66,
128; C.R. 5113 (D-44).)
11
reimbursement claim. (C.R. 5077 (D-35).) 10 Plaintiff also signed a consent for the District to
send information to Hawk Meadow and the Arlington Public School District, 11 which became
the District of Location and assumed responsibility for providing special education services to
A.A. since Hawk Meadow was located within the Arlington School District. (C.R. 5086-5092
(D-36, D-37, D-38, D-38A, D-39).)
Ms. Grant testified that the CSE was not provided with Dr. Braniecki’s report at the time
these decisions were made. (C.R. 82.) Nevertheless, at the hearing, Ms. Grant opined—by
comparing her initial evaluation with Dr. Braniecki’s—that A.A. had made “huge” progress in
reading comprehension (23rd percentile to 68th percentile), and “good growth” in other areas
which indicated the District was “closing the gaps.” (C.R. 82.) She also indicated that even had
the scores remained constant it would have indicated growth, since the tests are based on age and
grade level. (C.R. 83.)
e. 2012-2013: Fifth Grade at Hawk Meadow
Ms. Castle, the co-founder of Hawk Meadow, 12 described the Montessori education
program as a “scaffolded sequential educational curriculum,” and explained that the instruction
is essentially entirely differentiated: “each child is working at his or her own pace.” (C.R. 145
(Castle), C.R. 149.) She explained that all Montessori materials incorporate visual, auditory, and
kinesthetic properties—i.e., are multisensory. (C.R. 156.) She also confirmed that Hawk
Meadow is not approved by New York State to provide special education. (C.R. 147.) At Hawk
10
The District also complied with Plaintiff’s request to send her a copy of all documents in A.A.’s CSE
file. (C.R. 5064-65 (D-27 & D-28); C.R. 5111-12 (D-43); C.R. 5130 (D-47).)
11
Because Plaintiff did not sign reciprocal consents allowing Hawk Meadow and Arlington to send
information back to the District, no information regarding A.A.’s education and progress was received by the
District after the placement. (C.R. 5108-09 (D-42A) (Hawk Meadow and Arlington to the District).)
12
The other co-founder of Hawk Meadow was Plaintiff’s sister. (C.R. 144.)
12
Meadow, A.A. was instructed by Ms. Ryan, who had the most Montessori certification and
nearly 30 years of experience teaching Montessori programs. (C.R. 148.)
During his fifth grade year at Hawk Meadow, A.A. was in an upper elementary group
with a total of five students. (C.R. 149.) He was the only student that would have been
categorized as a fifth grader based on age. (C.R. 151.) The upper elementary classroom is one
large classroom with a smaller room, with a door that can be closed, which can be used for
individual lessons and services. (C.R. 151.) Students either receive one-on-one instruction or
work on their various assignments. (C.R. 155.)
A.A.’s typical day included spending approximately half of his morning period (1.5 of 3
hours) seated at a desk in the smaller room. (C.R. 156.) While at the desk, he received
instruction from a teacher for about an hour. (C.R. 156.) During his independent work time, a
teacher was situated approximately ten feet away. (C.R. 156.)
Throughout this year, Ms. Graff also acted as a tutor for A.A. in connection with an
additional teaching certification program she was completing. (C.R. 125 (Graff).) She indicated
that Hawk Meadow was using a “multisensory” approach based on the “Orton-Gillingham”
model in teaching its students. (C.R. 126.) Ms. Castle clarified during her testimony that the
school followed the “Sequential English Education” (SEE) approach, which was “specifically
designed to help students with reading and writing difficulties.” (C.R. 152.) She also testified at
the hearing that the recommendations Dr. Braniecki had made as part of her evaluation were
implemented in the course of instruction that A.A. received. (C.R. 160.)
Ms. Graff saw a difference in A.A.’s view of school: he was excited to share what he was
doing at Hawk Meadow. (C.R. 126.) He also confided in her about some of the bullying he
experienced at Woodglen. (C.R. 126.) Overall, she observed A.A. make slow upward progress
13
despite continuing to struggle. (C.R. 126.) Ms. Castle testified that when A.A. entered Hawk
Meadow as a fifth grader, he was only reading at a second or third grade level; yet, at the time of
the hearing, A.A. had advanced to a fifth grade level and was interpreting passages. (C.R. 157.)
i. IESP Formulation, Annual IEP Review, and Re-evaluation of A.A.
On December 17, 2012 and again on April 9, 2013 for fifth and sixth grades respectively,
CSE meetings were convened by Arlington for A.A. and individual education services plans
(“IESP”) were developed which maintained A.A.’s OHI classification and provided limited
services. (C.R. 4898-4907 (P-QQ) (providing consultant teacher services three times per year for
one hear each session); C.R. 4818-28 (P-L) (increasing the consultant teacher services to four
times per year and adding small group occupational therapy once a week for thirty minutes).) At
the hearing, Ms. Grant reviewed the IESPs prepared by Arlington and opined that the services to
be provided would have been insufficient for A.A. to progress. (C.R. 84 (noting the amount of
consultant teacher services did not comply with the state’s minimum requirements).)
At the District’s annual review for the 2013-2014 school year, held on June 19, 2013, the
District’s recommendations for A.A.’s IEP remained largely the same. (C.R. 70-71; C.R. 50955105 (D-41) (adding 45 minutes per day of a five student resource room).) Plaintiff, however,
expressed her desire for A.A. to be placed in the mainstream at the District in a fashion that
addressed his dyslexia. (C.R. 71.) The parties agreed to conduct a re-evaluation of A.A.
(C.R. 71.) Mr. Fucci indicated he had first learned of Dr. Braniecki’s report around the time of
this meeting. (C.R. 94.)
Mr. Fucci testified at the hearing that he believed the program recommended by the CSE
was “appropriate” based on the information available to the CSE at that time. (C.R. 99.) In
contrast, Ms. Graff testified that the IEP was deficient because it did not provide an appropriate
14
amount of time for a Wilson-based reading program. (C.R. 124 (Graff).) Moreover, the
comments attached to the IEP indicated that the CSE did not have sufficient information to
develop an IEP for A.A. and that “[a] meeting for the development of a 2013-14 IEP will be
arranged.” (C.R. 5095-5105 (D-41).) Despite multiple requests made by the District, the
documentary evidence suggests that Plaintiff did not provide a release allowing for information
regarding A.A.’s progress at Hawk Meadow to be sent to the District until the end of the school
year. (C.R. 69, 72, 97; C.R. 4804 (P-I) (Hawk Meadow to the District dated June 19, 2013),
4927 (P-ZZ) (same), 4896 (P-OO) (Arlington to the District also dated June 19, 2013), 4926 (PYY) (same), 4928 (P-AAA) (same), 4798 (P-C) (Arlington to Hawk Meadow and the District
dated September 20, 2013); see also C.R. 92-93, 95 (Fucci); C.R. 5108-09 (D-42A) (Hawk
Meadow and Arlington to the District).).
Ms. Avecilla, a school psychologist employed by the District, was asked to conduct the
re-evaluation of A.A. on June 20, 2013. (C.R. 110 (Avecilla).) Ms. Avecilla received a copy of
the Braniecki report from Plaintiff prior to conducting her evaluation of A.A. (C.R. 111.) After
conducting the re-evaluation, however, Ms. Avecilla did not share her results with the CSE
because she was missing an updated social history from Plaintiff. (C.R. 112.)
Although the CSE did not have access to Ms. Avecilla’s evaluation when it made its
decisions, Ms. Grant compared it to Dr. Braniecki’s report during the hearing and opined that
A.A. had generally declined—which was to be expected given his drastic decline in reading
comprehension (68th percentile to 37th percentile). (C.R. 85; see also C.R. 111-12 (Avecilla)
(testifying regarding general decrease in standardized testing scores during re-evaluation, but
noting A.A.’s word reading had increased from the 32nd to 50th percentile).) Notably, however,
15
Dr. Braniecki opined at the hearing that the decline “may or may not” be a result of A.A.’s
attendance at Hawk Meadow. (C.R. 140.)
ii. Renewed Rejection of the District’s IEP
A.A.’s parents delivered a letter to the District on August 26, 2013 informing it, again,
that they intended to place him in a nonpublic school at public expense. (C.R. 5142 (D-50).).
The District also definitively received a copy of Dr. Braniecki’s evaluation in September 2013,
after Plaintiff provided a release allowing Dr. Braniecki to share it. (C.R. 71; see also C.R. 94
(Fucci indicating he was aware of the Braniecki evaluation at the June CSE meeting).)
A CSE meeting was scheduled to convene on September 18, 2013 to review the
recommended IEP and results of Ms. Avecilla’s evaluation. This meeting was cancelled by
Plaintiff and rescheduled for October 9, 2013. (C.R. 5152-60 (D-55 – D-57).) Ultimately,
Plaintiff decided not to attend a CSE meeting, and instead, through her attorney, demanded a
Due Process Hearing by letter dated September 27, 2013. (C.R. 5265 (IHO Ex. 3)). That
demand was followed by a resolution meeting, held on October 29, 2013 (C.R. 5183-87 (D-66)),
where no resolution was reached.
f. 2013-2014: Sixth Grade at Hawk Meadow
During his sixth grade year at Hawk Meadow, A.A. was in an upper elementary group
with a total of nine students. (C.R. 149.) He was the only student that would have been
categorized as a sixth grader, or middle-schooler, based on his age. (C.R. 151.) As for the other
students in A.A.’s class, two others had behavioral issues, one had dyslexia, and another had
language delays and attentional issues; the remaining students had no noted academic or
behavioral issues. (C.R. 169 (concluding this information conflicted with the class profile); but
see C.R. 5261 (D-91), 4962-63 (P-III) (listing nine students in total, four without classifications,
16
two with behavioral issues, one with a learning disability, one with a “speech or language
impairment,” and A.A.).) Ms. Castle testified that Hawk Meadow is registered to provide
education through the middle school level with the Montessori Society, but it is not recognized
as such by New York State and the founders have no middle school training. (C.R. 166.)
Over the course of this year, A.A. became more comfortable with his independent
workstation—the desk in the small room. (C.R. 156.) He spent approximately two-thirds of his
morning period (2 of 3 hours) seated at the desk. (C.R. 156.) While at the desk, he received
instruction from a teacher for about 45 minutes. (C.R. 156.) In the afternoon session, which
lasted 1.5 hours, he worked at the desk independently for half that time. (C.R. 156.)
Though he was resistant, he also participated in occupation therapy, starting in the winter
or spring of this year, as recommended and provided by the Arlington school district as part of its
IESP. (C.R. 158-60.) The IESP did not, however, contain any reading, math, or writing goals,
despite A.A.’s below grade level functioning in those areas. (C.R. 173.)
Plaintiff testified that it was not until this year that she witnessed social, emotional, and
academic growth from A.A.’s placement at Hawk Meadow. (C.R. 163 (she indicated the first
year was difficult for him).) Ms. Castle reviewed the November 2013 progress report from this
year, and testified that it showed some regression but also improved confidence. (C.R. 170;
C.R. 4788 (P-B) (progress report prepared by Ms. Ryan and three others).) When asked to
compare the report from the end of the previous year (C.R. 4805 (P-J)) with the November
report, she noted some progress and a number of areas where his progress decreased. (C.R. 171.)
17
B. IHO & SRO Decisions
As a result of Plaintiff’s September 27, 2013 due process demand, an impartial hearing
was conducted over the course of 18 days between January 13, 2014 and July 16, 2014—during
the second half of A.A.’s sixth grade year. Plaintiff was represented by counsel at the hearing.
On September 8, 2014, the independent hearing officer issued a 191-page decision consisting of
findings of fact and conclusions of law. (See generally IHO Opinion (C.R. 23-239).)
Ultimately, the IHO denied Plaintiff’s application for full reimbursement and prospective
payment for tuition, related expenses, and transportation to and from Hawk Meadow for the
2012-2013, 2013-2014, and 2014-2015 school years; and denied reimbursement for various other
expenses sought by Plaintiff including compensatory services for the 2011-2012 school year.
(C.R. 236-37.) Specifically, the IHO concluded: 1) Plaintiff’s claims relating to the 2011-2012
school year (fourth grade) were time-barred, 2) the District offered the student an appropriate
education for the 2012-2013 school year (fifth grade), 3) the District failed to offer the student
such an education for the 2013-2014 school year (sixth grade), and 4) Hawk Meadow was,
nevertheless, not an appropriate alternative placement. (See generally IHO Opinion at 146-51,
155-64, 164-69, and 169-80.)
Plaintiff sought review of the IHO’s decision, and, on November 14, 2014, the State
Review Officer (“SRO”) affirmed the decision and denied the District’s cross-appeal challenging
the IHO’s determination that a) the District was required to prepare an IEP for the 2013-2014
school year and b) the District’s IEP for that year did not provide a free and appropriate public
education. (C.R. 291-335.) This action ensued.
18
II.
Procedural History
Plaintiff filed her complaint in this matter on March 12, 2015. (ECF No. 2.) She
subsequently amended the complaint twice, first on June 9, 2015 (ECF No. 6), and again on
December 31, 2015—the operative complaint in this action. (Compl., ECF No. 29.) The District
Defendants answered on January 29, 2016. (ECF No. 35.)
The Department moved to dismiss the complaint with regard to any claims asserted
against the state education department (ECF No. 38), 13 while the District Defendants moved for
summary judgment (ECF No. 62).
LEGAL STANDARDS
I.
Legal Framework of the IDEA 14
The “purpose” of the Individuals with Disabilities Education Act “is ‘to ensure that all
children with disabilities have available to them a free appropriate public education.’” T.K. v.
N.Y.C. Dep’t of Educ., 810 F.3d 869, 875 (2d Cir. 2016) (quoting 20 U.S.C. § 1400(d)(1)(A)).
As the Second Circuit has recently described it, this means “an education ‘likely to produce
progress, not regression,’ and one that ‘afford[s] the student with an opportunity greater than
mere trivial advancement.’” Id. (quoting M.O. v. N.Y.C. Dep’t of Educ., 793 F.3d 236, 239 (2d
Cir. 2015)); accord Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988,
1001 (2017) (“a student offered an educational program providing ‘merely more than de
minimis’ progress from year to year can hardly be said to have been offered an education at all”).
13
The Department’s motion to dismiss was fully briefed as of April 19, 2016. (See Dep’t Mot. Dismiss,
ECF No. 38; Dep’t Mem. in Supp. Mot. (“Dep’t Mem.”), ECF No. 40; Decl. Mark E. Klein in Supp. Mot. (“Klein
Decl.”), ECF No. 39; Pls. Opp’n to Dep’t Mot. (“Pls. Opp’n II”), ECF Nos. 45-51 & 55; Dep’t Reply to Pls. Opp’n
II (“Dep’t Reply”), ECF No. 43.)
14
The IDEA was amended by the IDEIA in 2004. See E.M. v. N.Y. City Dep’t of Educ., 758 F.3d 442, 445
n.1 (2d Cir. 2014)
19
“The ‘centerpiece’ of the IDEA and its principal mechanism for achieving this goal is the
IEP.” T.K., 810 F.3d at 875. “The IEP is the means by which special education and related
services are ‘tailored to the unique needs’ of a particular child.” Endrew F., 137 S. Ct. at 994
(quoting Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458
U.S. 176, 181 (1982)). The IDEA imposes upon school districts the duty to seek out children
with a disability and ensure that they receive the special education services they need. 20 USC
§ 1412(a)(3); 34 C.F.R. § 300.111 (a)(1)(i); Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 245
(2009). Similarly, “an educational agency must issue an IEP for a resident qualifying child, even
if that child has been enrolled in a private school outside the boundaries of the school district.”
Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 451 (2d Cir. 2015). And, “an IEP must be drafted in
compliance with a detailed set of procedures.” Endrew F., 137 S. Ct. at 994 (citing 20 U.S.C.
§ 1414(d)(1)(B)).
“The IDEA requires that every IEP include ‘a statement of the child’s present levels of
academic achievement and functional performance,’ describe ‘how the child’s disability affects
the child’s involvement and progress in the general education curriculum,’ and set out
‘measurable annual goals, including academic and functional goals,’ along with a ‘description of
how the child’s progress toward meeting’ those goals will be gauged.” Id. (quoting 20 U.S.C.
§§ 1414(d)(1)(A)(i)(I)-(III)). It “must also describe the ‘special education and related
services . . . that will be provided’ so that the child may ‘advance appropriately toward attaining
the annual goals’ and, when possible, ‘be involved in and make progress in the general education
curriculum.’” Id. (quoting § 1414(d)(1)(A)(i)(IV)).
In addition to providing an education likely to produce progress, tailored to the unique
needs of the child, the program must be offered in the least restrictive environment. 20 U.S.C.
20
§ 1412 (a)(5)(A); N.Y. Comp. Codes R. & Regs. §§ 200.1(cc), 200.6(a1); see C.W.L. & E.L. v.
Pelham Union Free Sch. Dist., 149 F. Supp. 3d 451, 467-68 (S.D.N.Y. 2015) (quoting M.W. ex
rel. S.W. v. N.Y.C. Dep’t of Educ., 725 F.3d 131, 145 (2d Cir. 2013)) (one of the IDEA’s goals is
“to provide disabled children with a public education ‘while protecting them from being
inappropriately sequestered in a special-education classroom’”). “[A] disabled student’s least
restrictive environment refers to the least restrictive educational setting consistent with that
student’s needs, not the least restrictive setting that the school district chooses to make
available.” T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 161 (2d Cir. 2014)
(emphasis added and citation omitted). “This requirement ‘expresses a strong preference for
children with disabilities to be educated, to the maximum extent appropriate, together with their
non-disabled peers.’” Id. (quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122
(2d Cir. 1998)) (internal quotation marks omitted in original).
“Where the IEP is substantively deficient, parents may unilaterally reject it in favor of
sending their child to private school and seek tuition reimbursement from the State.” T.K., 810
F.3d at 875. A school district will be required to reimburse parents for expenditures made for a
private school placement, if the services offered the student by the school district are inadequate
or inappropriate. See Florence Cty. Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 13-16
(1993); Sch. Comm. of the Town of Burlington, Mass. v. Dep’t of Educ. of Mass., 471 U.S. 359,
369-70 (1985). Following the Burlington/Carter test, once a court determines that a child has
been denied an appropriate educational opportunity by the public school district, the remaining
considerations are “whether the parents’ private placement is appropriate to the child’s needs”
and the balance of the equities. C.F. ex rel. R.F. v. N.Y.C. Dep’t of Educ., 746 F.3d 68, 73 (2d
Cir. 2014).
21
“Generally, ‘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’; accordingly, the private placement must be
‘reasonably calculated to enable the child to receive educational benefits.’” Doe, 790 F.3d at 451
(citation omitted). “Under New York law, ‘the [school district] bears the burden of establishing
the validity of the IEP, while the parents bear the burden of establishing the appropriateness of
the private placement.’” T.K., 810 F.3d at 875 (quoting C.F., 746 F.3d at 76 (citing N.Y. Educ.
Law § 4404(1)(c))). 15
II.
Exhaustion Under (and Alternatives to) the IDEA
When a plaintiff initiates an action that “seek[s] relief for the denial of a [free and
appropriate public education],” which is “the only ‘relief’ the IDEA makes ‘available,’” she must
follow the IDEA’s exhaustion procedures regardless of whether the action is filed “under the
ADA, the Rehabilitation Act, or similar laws[.]” Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743,
752 (2017). “[I]n determining whether a suit indeed ‘seeks’ relief for such a denial, a court
should look to the substance, or gravamen, of the plaintiff’s complaint.” Id. “[I]f, in a suit
brought under a different statute, the remedy sought” is not covered by the IDEA, “then
exhaustion of the IDEA’s procedures is not required.” Id. at 754 (“After all, the plaintiff could
not get any relief from those procedures: A hearing officer, [lacking the power to order any
relief], would have to send her away empty-handed.”).
15
“It remains an open question whether states may deviate from the IDEA’s default rule, as New York
does, by placing the initial burden on the school board.” Reyes ex rel. R.P. v. N.Y. City Dep’t of Educ., 760 F.3d
211, 219 (2d Cir. 2014) (citing Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 57-58 (2005)) (“the Supreme Court
has interpreted the statute to place the burden of challenging an IEP on the party bringing the challenge”).
22
III.
Standard of Review
In IDEA actions, district courts follow a procedure that is in substance an appeal from an
administrative determination, not a traditional summary judgment analysis. Thus, the usual
summary judgment considerations, of whether material factual disputes exist, are not employed;
rather, the court “must engage in an independent review of the administrative record and make a
determination based upon a preponderance of the evidence[.]” Hardison v. Bd. of Educ. of the
Oneonta City Sch. Dist., 773 F.3d 372, 385-86 (2d Cir. 2014) (internal quotations and citations
omitted). That independent review, however, is not without significant limitations. “The role of
the federal courts in reviewing state education decisions under the IDEA is circumscribed.”
C.F., 746 F.3d at 77. The standard of review “requires a more critical appraisal of the agency
determination than clear-error review but nevertheless falls well short of complete de novo
review.” Id. at 77 (quoting M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 244 (2d Cir. 2012)).
The SRO has special expertise in educational matters involving the IDEA and its decisions,
when “thorough and well reasoned,” are entitled to deference. T.Y. v. N.Y.C. Dep’t of Educ., 584
F.3d 412, 419 (2d Cir. 2009).
Under this deferential review, “[w]here the IHO and SRO disagree,” a federal court will
“defer to the reasoned conclusions of the SRO as the final state administrative determination.”
C.F., 746 F.3d at 77 (citation omitted). “However, where the SRO’s determinations are
insufficiently reasoned to merit deference,” or when “considering an issue not reached by the
SRO,” the reviewing court “should defer to the IHO’s analysis.” Id. (citation omitted). “District
courts are not to make subjective credibility assessments, and cannot choose between the views
of conflicting experts on controversial issues of educational policy in direct contradiction of the
23
opinions of state administrative officers who had heard the same evidence.” M.H., 685 F.3d
at 240 (alterations and internal quotation marks omitted).
DISCUSSION
Plaintiff’s claims can be categorized either as falling within the ambit of the IDEA, i.e.
seeking relief from the denial of a free and appropriate public education, or as claims seeking
relief for other, potentially related, discrimination pursuant to the ADA, RA, or Section 1983.
The Court first addresses her IDEA claims, as they represent the majority of the issues presented.
I.
IDEA Claims
Plaintiff’s IDEA claims are only properly asserted against the District Defendants. 16
Furthermore, this Court can only review claims that are exhausted, meaning they were brought to
the state agency for its consideration. In New York, a plaintiff must engage in the state’s “twotier administrative system for review of IEPs”: first, she must seek review by an independent
hearing officer; and second, she must appeal any adverse result to a state review officer. See
Cave v. E. Meadow Union Free Sch. Dist., 514 F.3d 240, 245 (2d Cir. 2008); see also B.C. ex
rel. B.M. v. Pine Plains Cent. Sch. Dist., 971 F. Supp. 2d 356, 365 (S.D.N.Y. 2013) (“a
plaintiff’s failure to satisfy the IDEA’s exhaustion requirement deprives the Court of subject
matter jurisdiction”); Myslow v. New Milford Sch. Dist., No. 03 Civ. 496 (MRK), 2006 WL
16
The District’s receipt of federal funding allows it to be sued in federal court under the statute, but the
State Education Department—which is not responsible for the day-to-day formulation of students’ IEPs—is not the
proper party to a suit challenging an administrative determination as to the sufficiency of the IEPs provided by the
local education agency. See Y.D. v. N.Y.C. Dep’t of Educ., No. 14 Civ. 1137 (LTS), 2016 WL 698139, at *5
(S.D.N.Y. Feb. 19, 2016) (citing 8 N.Y. Comp. Codes R. & Regs. § 279.1(c)(1) (prohibiting the SED from
appearing as a party before a State Review Officer)); J.E. v. Chappaqua Cent. Sch. Dist., No. 14 Civ. 3295 (NSR),
2015 WL 4934535, at *7 (S.D.N.Y. Aug. 17, 2015) (the Department is not “a proper or necessary party”) (citing
B.J.S. v. State Educ. Dep’t/Univ. of N.Y., 699 F. Supp. 2d 586, 600-01 (W.D.N.Y. 2010) (the “State Department of
Education may not be sued as a defendant to an IDEA action brought pursuant to § 1415(i)(2)(A)”) (collecting
cases)); El Paso Indep. Sch. Dist. v. Richard R., 567 F. Supp. 2d 918, 935 (W.D. Tex. 2008) (Congress
“condition[ed] ‘a state’s receipt of federal IDEA funds on its consent to suit under that Act,’” allowing “an
individual [to] hale a school district, as a subdivision of the state, into federal court.”) (internal citation omitted).
24
473735, at *12 (D. Conn. Feb. 28, 2006) (only IDEA claims related to an IHO’s explicit
findings, appealed to the SRO as necessary, are appropriately exhausted).
Thus, any IDEA claims not fairly encompassed by the initial due process notice have not
been exhausted and cannot be considered; the same holds true for adverse findings made by the
hearing officer that are not appealed to the SRO. See M.O., 793 F.3d at 245 (challenges not
made in due process complaint were not cognizable on review); B.M. v. N.Y.C. Dep’t of Educ.,
No. 12 Civ. 3247 (JMF), 2013 WL 1972144, at *5 (S.D.N.Y. May 14, 2013), aff’d, 569 F. App’x
57 (2d Cir. 2014) (“A district court [] may only review issues raised in a plaintiff’s due process
complaint”); see, e.g., P. v. Greenwich Bd. of Educ., 929 F. Supp. 2d 40, 50 (D. Conn. 2013)
(child-find claims were not exhausted because they were not a part of plaintiffs’ initial due
process request); see also 8 N.Y. Comp. Codes R. & Regs. § 200.5(j)(5)(v) (“The decision of the
impartial hearing officer shall be binding upon both parties unless appealed to the State review
officer”); C.H. v. Goshen Cent. Sch. Dist., No. 11 Civ. 6933 (CS), 2013 WL 1285387, at *10
(S.D.N.Y. Mar. 28, 2013) (“this Court has the power to decide only those issues . . . not waived
by failing to appeal or cross-appeal to the SRO an adverse finding by the IHO”).
Comparing the appeal to and decision by the SRO with the IHO’s decision in response to
Plaintiff’s due process request, it is apparent that there are three fully exhausted issues:
1) whether A.A. can assert claims relating to the period of time prior to the 2012-2013 school
year or whether those claims are time-barred, 2) whether A.A. received an appropriate
educational opportunity during the 2012-2013 and 2013-2014 school years, and 3) whether his
unilateral placement at Hawk Meadow beginning in the 2012-2013 school year was appropriate.
(Compare C.R. 5265-73 (¶¶ 1-2, 7-9, ¶¶ 3-6, 9-16, & ¶ 17), with C.R. 10 (¶¶ 1-2, ¶¶ 3-7, ¶ 8).)
These are the only IDEA claims, ripe for review, over which this Court has jurisdiction.
25
a. Timeliness of the pre-2012-2013 school year claims
“[A]n IDEA claim accrues when the plaintiff knows or has reason to know of the injury
that is the basis of the action.” Somoza v. N.Y.C. Dep’t of Educ., 538 F.3d 106, 116 (2d Cir.
2008) (citing M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221 (2d Cir. 2003)). Once a claim
accrues, a plaintiff has two years to act or risk the claim becoming time-barred. See 20 U.S.C.
§ 1415(b)(6)(B) (a plaintiff must have “[a]n opportunity . . . to present a complaint . . . which
sets forth an alleged violation that occurred not more than 2 years before the date the parent or
public agency knew or should have known about the alleged action that forms the basis of the
complaint”); 20 U.S.C. § 1415(f)(3)(C) (“A parent or agency shall request an impartial due
process hearing within 2 years of the date the parent or agency knew or should have known
about the alleged action that forms the basis of the complaint”). Plaintiff requested a due process
hearing on September 27, 2013. Therefore, any claims of which she should have been aware
predating September 27, 2011 are barred by the statute of limitations.
While claims relating to the IEPs and the educational services provided for A.A.’s fifth
and sixth grade years are certainly timely, 17 Plaintiff, as part of her due process complaint, also
sought review of the services provided prior to and during the 2011-2012 school year. Plaintiff
argued below, (see C.R. 247-48), that she could not be “charged with knowledge of the District’s
classification error at a time when [she] believed, erroneously, that the District had reviewed all
relevant records and made a determination based on all records,” and argued “the proper
measuring date is no earlier than May 11, 2012, the date of the annual review when [Plaintiff]
expressed concerns to the CSE about A.A.’s lack of progress.” (Id. at 274) The SRO, however,
17
The IEP for A.A.’s 2012-2013 school year was prepared May 11, 2012 and the IEP for A.A.’s 20132014 school year was prepared June 19, 2013.
26
concluded that “[t]he hearing record support[ed] the IHO’s determination that the [] child find
claim accrued no later than April 13, 2010, the date the CSE determined the student was eligible
for special education services as a student with an other health-impairment.” (C.R. 13.) The
SRO also determined that “the parents were aware in July 2010, at the latest, that the student had
received a diagnosis of dyslexia” which was “the basis for the parents’ claim that the other health
impairment classification was inappropriate[.]” (C.R. 14.) 18
This Court, viewing the timeline similarly, concurs with this portion of the SRO’s
analysis. Based on the facts established at the independent hearing, this Court concludes that
Plaintiff became aware of a number of potential issues with A.A.’s educational opportunities
during the build up to the April 2010 and April 2011 CSE meetings—meaning that those claims
accrued before September 27, 2011 and are time-barred.
First, despite “extensive” discussions with Woodglen’s psychologist about having A.A.
evaluated for special education services beginning as early as the 2008-2009 school year,
Plaintiff was hesitant to engage in that process. 19 The school, therefore, offered RTI services to
A.A. to support his educational needs, rather than a special education referral, due to the parents’
resistance to moving forward with the evaluation process. (C.R. 53; C.R. 87 (Grant); C.R. 102
(Mahoney).) Second, Plaintiff was aware of and voiced her concerns to A.A.’s placement in a
18
The SRO also agreed with “the IHO’s determination that even if the other health-impairment
classification were not the most appropriate, it did not compromise the student’s right to an appropriate education,
significantly impede the parents’ opportunity to participate in the development of the IEP, or cause a deprivation of
educational benefits.” (C.R. 15.) The Court need not consider this latter conclusion during the period that is stale.
19
“Under the IDEA, each state receiving federal funds must ‘ha[ve] in effect policies and procedures,’ by
which it will identify, locate, and evaluate ‘[a]ll children with disabilities residing in the state’ to determine whether
these children require special education and related services.” W.A. v. Hendrick Hudson Cent. Sch. Dist., 219 F.
Supp. 3d 421, 456 (S.D.N.Y. 2016) (quoting 20 U.S.C. § 1412(a) and § 1412(a)(3)(A)). This is commonly referred
to as a District’s “child-find” obligation. “When a school board violates [this] obligation by not evaluating a child
suspected of being disabled, it necessarily fails to provide that student a FAPE.” Id. (quoting Greenwich Bd. of
Educ. v. G.M., No. 13 Civ. 235, 2016 WL 3512120, at *8 (D. Conn. June 22, 2016)).
27
special education classroom: although she consented to the initiation of special education
services for A.A. during the 2009-2010 school year (C.R. 5025 (D-16)), she noted her objection
to his “segregation” from the “mainstream population.” (C.R. 57; see also C.R. 3099-3101
(Avaras).) 20 Third, Plaintiff was also aware of any issues regarding the classification given to
A.A. and whether the IEP encompassed all of his potential disabilities. A.A. was classified that
year as OHI, rather than learning disabled, based on an ADHD diagnosis provided to the CSE by
Plaintiff (C.R. 5015 (D-13)); yet—because she questioned that diagnosis—she also possessed as
of July 7, 2010, the conflicting opinion of Dr. Roseman, diagnosing A.A. as having inter alia
dyslexia and attention deficit disorder (ADD). (C.R. 4880 (P-CCC).)
Finally, Plaintiff was aware that none of her concerns with the IEP developed for A.A.
were addressed when the annual review meeting was held in April 2011 to develop his IEP for
the next academic year (2011-2012). At the meeting, the CSE recommended generally the same
programs that were in place in April 2010. Moreover, the IEP no longer included consultant
teacher services. (C.R. 5036-45 (D-20).) Plaintiff participated in the meeting, she voiced her
disagreement with A.A.’s placement in the special education classroom and her concern that he
was not progressing, and, although she specifically requested his return to the mainstream
general education classroom, the CSE members denied that request. (C.R. 3131-35 (Avaras).)
This final instance serves as the most comprehensive example of her awareness of all of
the District’s alleged failings up to that point: when the District re-implemented the OHI-based
20
After the RTI meeting, A.A. spent the vast majority of his time in a self-contained special education
class. (C.R. 123 (Graff).) When those services were formalized during the April 13, 2010 CSE meeting, that
placement became part of A.A.’s IEP for the next school year.
Plaintiff finds support in her objections to A.A.’s placement in the special education classroom from Ms.
Graff, who, although she did not attend the CSE meeting, believed A.A. needed a “multisensory” program to
support his reading instruction and felt that he needed to socialize with children at his level. (C.R. 122-24.) She
independently concluded that the program recommended by the District was not appropriate. (C.R. 124.) But, Ms.
Graff never voiced these concerns because there were no other choices available. (C.R. 124.)
28
IEP for the 2011-2012 school year in April 2011 without adjusting A.A.’s placement in the
special education classroom, his classification, or the services provided, Plaintiff knew or should
have known that he was—in her view—inappropriately sequestered away from his mainstream
peers in a setting that was not tailored to address his potential dyslexia. She was also more than
aware of any potential claim that the District had failed in its child-find obligations at that
point. 21 Therefore, the Court must agree with the SRO that these claims are time-barred.
Plaintiff was aware of all of these issues more than two years prior to the point at which
she filed her due process complaint. 22 There are no issues related to this determination that
require additional discovery. Cf. K.C. v. Chappaqua Cent. Sch. Dist., No. 16 Civ. 3138 (KMK),
2017 WL 2417019, at *9 (S.D.N.Y. June 2, 2017) (because plaintiffs alleged that aspects of their
21
Though an educational agency “cannot abdicate its affirmative duties under the IDEA,” Anchorage Sch.
Dist. v. M.P., 689 F.3d 1047, 1055-56 (9th Cir. 2012) (citation omitted), “[w]hen parents waive their child’s right to
services, school districts may not override their wishes.” Fitzgerald v. Camdenton R-III Sch. Dist., 439 F.3d 773,
775 (8th Cir. 2006). The record amply supports the conclusion that the District was attempting to fulfill its childfind obligations and met with some, perhaps understandable, resistance from Plaintiff to initiating the special
education referral process. See W.A., 219 F. Supp. 3d at 456–57 (“a state’s child find duty is triggered when it has
reason to suspect that special education services may be needed to address the disability”) (citation omitted); V.M. v.
N. Colonie Cent. Sch. Dist., 954 F. Supp. 2d 102, 118 (N.D.N.Y. 2013) (“if a parent refuses to consent to the receipt
of special education and related services, or fails to respond to a request to provide such consent, ‘the local
educational agency shall not be considered to be in violation’” of its obligations).
22
Plaintiff cannot rely on the exceptions to the statute of limitations, see 20 U.S.C. § 1415(f)(3)(D)
(involving either specific misrepresentations or withholding of required information by the District), given her
ostensible receipt of a procedural safeguards notice and parental guide to the evaluation process as early as February
2010 and receipt of multiple notices re-advising her of her procedure rights. (See, e.g., C.R. 4988 (D-4) (letter dated
February 9, 2010 from the District to Plaintiff regarding “the information that [she] need[ed] to refer [her] son [] to
the Committee on Special Education (CSE) to determine if he is a student with a disability”); C.R. 5010 (D-9) (letter
dated March 18, 2010 from the District to Plaintiff questioning if she wanted to withdraw the referral to the CSE
and, again, enclosing the “Procedural Safeguards” and “Parent Guide”); C.R. 5013 (D-12) (notice dated April 7,
2010 regarding the initial eligibility determination meeting noting that Plaintiff had previously received a
“Procedural Safeguards Notice” but could request another copy if needed); C.R. 5025 (D-16) (consent for the
initiation of special education services, dated April 13, 2010, which specifically indicated Plaintiff had “received a
copy of the Procedural Safeguards Notice that is required by the Individuals with Disabilities Education Act
(IDEA)”); C.R. 4874 (P-AA) (annual review notice dated March 27, 2012, noting that Plaintiff had previously
received a “Procedural Safeguards Notice” but could request another copy if needed); C.R. 4873 (P-Z) (annual
review notice dated April 23, 2012, noting that Plaintiff had previously received a “Procedural Safeguards Notice”
but could request another copy if needed)); see also Richard R., 567 F. Supp. 2d at 945 (“When a local educational
agency delivers a copy of IDEA procedural safeguards to parents, the statutes of limitations for IDEA violations
commence without disturbance.”).
29
claims were not uncovered until the commencement of the hearing process, discovery was
needed to ascertain when the claims accrued). Because these issues accrued before September
27, 2011 and indeed were crystalized by April 2011 at the latest, the claims stemming from
before the 2012-2013 school year are stale.
b. Review of SRO Affirmance of IHO Decision Regarding the IEPs for A.A.’s
2012-2013 & 2013-2014 School Years and His Placement at Hawk Meadow
The Court, therefore, engages in a review of the properly exhausted and timely claims
considered by the IHO & SRO, which were in agreement, to determine whether the state review
process is undeserving of deference—that is, whether those decisions are against the
preponderance of the evidence keeping in mind the state agencies’ special expertise in
educational matters. A review of the record indicates that the primary issues in this case are
whether A.A. was placed in an inordinately restrictive and insufficiently tailored environment
while at Woodglen, and whether, given Plaintiff’s view that he was not advancing and not
mainstreamed there, his placement at Hawk Meadow was an appropriate alternative. (See also
Compl. at 5-6, 8.)
i. Whether A.A. Was Offered a Free and Appropriate Public Education in
the Least Restrictive Environment During the 2012-2013 School Year
The IHO and SRO agreed that A.A. was offered an appropriate educational opportunity
for his fifth grade year. (C.R. 16-19 (SRO); C.R. 198-208 (IHO).) The District Defendants
unsurprisingly support this conclusion and argue that “the evidence presented [at the hearing]
shows that the District accurately identified A.A.’s educational needs, and provided A.A. with
appropriate special education services and supports to meet his needs.” (Dist. Mem. at 15.)
“[T]he [IDEA] guarantees [] an appropriate education, not one that provides everything
that might be thought desirable by loving parents.” Walczak, 142 F.3d at 132 (internal quotation
marks and citation omitted) (emphasis added). As for the appropriateness of the education
30
provided, “[t]he IDEA demands . . . an educational program reasonably calculated to enable a
child to make progress appropriate in light of th[at] child’s circumstances.” Endrew F., 137 S.
Ct. at 1001. In considering the adequacy of the IEP developed for A.A.’s fifth grade year (which
was ultimately unilaterally rejected in favor of private placement at Hawk Meadow (see
C.R. 5066 (D-29))), 23 certain facts established at the hearing are worth reiterating here.
First, A.A.’s IEP progress report and report card for his fourth grade year at Woodglen
indicated that he had achieved all of his IEP goals and made progress on his overall educational
development. (C.R. 5198-5203 (D-71), 5210-11 (D-74).) Moreover, the notes attached to the
IEP developed for his fifth grade year indicated that he had “made wonderful progress” in
reading, was in an advanced reading group, and noted progress based on his GRADE assessment
results, 24 which placed him in the average range. 25 Second, the District indicated it never
received a copy of Dr. Roseman’s dyslexia diagnosis until the independent hearing process
23
A CSE meeting to discuss revising the IEP was held on September 28, 2012. (C.R. 68.) There was no
finding made by the CSE as to whether the District’s program and the program offered by Hawk Meadow were
comparable. (C.R. 90 (Fucci); C.R. 115 (Carlson) (indicating he had reached out to Ms. Castle at Hawk Meadow to
learn about the school prior to the CSE meeting).)
24
A.A.’s Comprehension Composite score moved from 4 to 5 (Stanines) based on a six percentile change.
His Total Test score stayed at 5 (Stanines) but also included a six percentile increase. (Compare C.R. 5038 (D-20)
(“Comprehension Composite 4 (Stanines), 36 (Percentile)” and “Total Test 5 (Stanines), 39 (Percentile)”), with
C.R. 5054-55 (D-24) (“Comprehension Composite 5 (Stanines), 42 (Percentile)” and “Total Test 5 (Stanines), 45
(Percentile)”).)
“Stanine” scaling, or “STAndard NINE,” is commonly used in educational assessment and involves
dividing the normal distribution of particular test scores into nine intervals, Stanines 1 through 9, with 1 being the
lowest, 9 being the highest, and 5 representing the average. See Rios v. Read, 480 F. Supp. 14, 23 (E.D.N.Y. 1978).
25
At the hearing, Ms. Grant opined—by comparing her initial evaluation with Dr. Braniecki’s—that A.A.
had made “huge” progress in reading comprehension (23rd percentile to 68th percentile), and “good growth” in
other areas which indicated the District was “closing the gaps.” (C.R. 82.) She also indicated that even had the
scores remained constant it would have indicated growth, since the tests are based on age and grade level. (C.R. 83.)
Thus, despite not having access to the Braniecki results, the other data relied upon by the District concurred with the
post-hoc evaluation performed by Ms. Grant at the independent hearing. This Court considers this evidence,
particularly since it was introduced at the hearing below. Cf. G.B. ex rel. N.B. v. Tuxedo Union Free Sch. Dist., 751
F. Supp. 2d 552, 555 (S.D.N.Y. 2010), aff’d, 486 F. App’x 954 (2d Cir. 2012) (reviewing courts “generally accept
evidence that was not withheld in bad faith, is relevant, and does not change the administrative review into a trial de
novo”); 20 U.S.C. § 1415(i)(2)(C) (a reviewing court “shall hear additional evidence at the request of a party”).
31
began, (C.R. 89), and Dr. Braniecki’s evaluation had not been completed at this point.
Consequently, the IEP developed for A.A.’s fifth grade year included only an OHI classification.
Third, at Plaintiff’s request during the CSE annual review, the CSE added counseling services in
a small group, 30 minutes a week, to A.A.’s IEP to address self-esteem issues. (C.R. 64;
C.R. 5052-5061 (D-24)); see also T.K. v. New York City Dept. of Educ., 810 F.3d 869, 876 (2d
Cir. 2016) (assuming that “bullying of a student with a disability is an appropriate consideration
in the development of an IEP and can result in the denial of a FAPE under the IDEA”).
Accepting that the District may not have had the benefit of the dyslexia diagnosis, the
primary consideration is whether A.A., who in the CSE’s estimation—confirmed by the
reviewing state agencies—had received an educational benefit and progressed in his plan of
study, 26 received his education in the least restrictive environment tailored to address his unique
needs. “[D]eterminations regarding the substantive adequacy of an IEP should be afforded more
weight than determinations concerning whether the IEP was developed according to the proper
procedures” and “[d]ecisions involving a dispute over an appropriate educational methodology
should be afforded more deference than determinations concerning whether there have been
objective indications of progress.” M.H., 685 F.3d at 244.
The instant disputes, which concern the substantive adequacy of the IEP and whether an
appropriate educational methodology in A.A.’s instruction, thus require greater deference to the
26
Plaintiff argued below that “nothing in [A.A.’s] test results or IEPs indicate[d] anything more than trivial
educational benefit” was provided by the District. (C.R. 252.) Woodglen’s psychologist, however, testified that
students were advancing even when their scores remained constant from year to year, because the tests were
designed to measure grade-level achievement. In A.A.’s case, his GRADE results indicated a six percentile increase
overall—and his comprehension score advanced from a below average to an average level. The growth measured
by Dr. Braniecki’s evaluation—performed shortly after the IEP was developed—only serves to reinforce the
conclusion that A.A. had, thus, made progress. Ignoring the superlatives assigned to his growth, there was clear
evidence of progress introduced at the hearing which supported the IHO and SRO’s conclusion in that regard.
(C.R. 17-18; C.R. 206-07.) Nevertheless, despite A.A.’s progress, the question remains whether the services
provided to A.A. were properly designed to address his needs.
32
IHO and SHO’s specialized knowledge. Nevertheless, this Court’s review of the record,
providing appropriate deference to the thorough reasoning of the IHO and SRO, leads ultimately
to a different conclusion. The Court agrees that A.A. progressed under the District’s program
and that the IEP offered for the 2012-2013 school year may have continued that progression; but,
the Court must still consider whether his placement in the 15:1 special education classroom for
the majority of his educational instruction was appropriate in light of his needs. The issue of
whether his environment was sufficiently integrated with non-disabled peers is addressed during
this Court’s consideration of whether he was placed in the least restrictive environment.
1. Whether the District’s program of instruction was
appropriately tailored to A.A.’s needs
This Court, affording a proper degree of deference, adopts the conclusion made by the
SRO that the District based the IEP for the 2012-2013 school year off of sufficient information
that it had in its possession. (See C.R. 16 (“concur[ring] with the IHO’s determination that the
CSE assessed the student in all areas of need and had sufficient information available to develop
an IEP”).) 27 But the record reflects significant disagreement as to whether A.A. was receiving
the “multi-sensory” program in a small class environment that his educators, evaluators, and
parents believed he required to advance.
Ms. Graff’s testimony during the hearing is most critical to this determination, as she was
in the best position to assess his needs. She served as A.A.’s regular education teacher beginning
27
The SRO also concluded that the IEP did not need to account for the competing dyslexia diagnosis at
this time. (C.R. 15 n.5 (assuming “for the purposes of [its] decision . . . that [all evaluations] were timely provided
to the district” since it would not impact the SRO’s opinion regarding A.A.’s classification).) This Court finds that
conclusion hard to reconcile with the testimony provided at the hearing. Indeed, if the CSE had access to the
Braniecki evaluation, which the SRO specifically concluded it did not (C.R. 18), then the adequacy of the program
provided in 2012-2013 would be in serious doubt, as discussed infra when considering the 2013-2014 program
offering. Instead, the Court concludes the weight of the evidence supports the factual finding that the District did
not have any of the competing diagnoses in their possession until the next annual review.
33
in the second grade, was familiar with him at the time he was evaluated for special education
services, and maintained an independent tutoring relationship with him once he left Woodglen
for Hawk Meadow. Ms. Graff testified at the hearing that during his second-grade year, before
A.A. was referred for a special education evaluation, she provided him with specialized reading
instruction using aspects of the “Wilson program” in her general education classroom. (C.R. 51;
see also C.R. 116 (Graff).) Though she did not attend the CSE meeting held that year to evaluate
A.A., she believed he needed a “multisensory” program to support his reading instruction.
(C.R. 122.) She also testified that she had been unable to provide a full Wilson-based program
during his second-grade year. (C.R. 121.) Dr. Braniecki also “recommended instruction through
a multisensory approach” coupled with “1:1 assistance [for A.A.] with his learning and attention
issues,” concluding that “if his current placement was unable to meet those needs, [then] he may
require an alternative placement.” (C.R. 133, 143-44.)
In considering whether the IEP “provide[d] for the use of appropriate special education
services,” the IHO noted that Dr. Braniecki’s post-CSE evaluation confirmed “special class
placements for ELA and math would be appropriate as long as they addressed his needs in
reading and math and gave him special education support in writing.” (C.R. 202-03 (emphasis
added).) Notably however, the concept of a multisensory approach—which the IHO referenced
extensively in determining the inappropriateness of Hawk Meadow as an alternative placement
and which Dr. Braniecki endorsed—is not mentioned during the IHO’s evaluation of the
adequacy of the 2012-2013 IEP. Nor did the IHO mention Ms. Graff’s opinion regarding the
inadequacy of the services provided. Instead, in a later conclusion, the IHO relied on the
services A.A. received across his multiple years at Woodglen, finding that “[t]he evidence
show[ed] that in prior academic years, [A.A.] was instructed . . . using the Wilson scientifically-
34
based, sequential multisensory methodology . . . and [that] there [was] no evidence that the
District would not have continued to instruct him using scientifically-based, sequential
multisensory methodologies for the 2012[-2013] school year, in line with Dr. Braniecki’s
recommendations.” (C.R. 225.)
The SRO, finding the IHO had considered the Braniecki evaluation in error, nevertheless
determined that “the May 2012 CSE [could not] be faulted for failing to follow the
recommendations contained in the [unavailable] report, such as the recommendation for a
‘multisensory approach to learning and 1:1 assistance.’” (C.R. 18 (citing C.R. 5114 (D-45)
at 5124.) Because the SRO concluded that “the focus of the inquiry is on the information that
was available to the May 2012 CSE at the time the May 2012 IEP was formulated,” it discounted
Braniecki’s recommendation for a multisensory approach, finding “the IHO’s reasoning
regarding the appropriateness of the recommended program’s ability to address [A.A.’s] needs
[was] otherwise sound [and] supported by the hearing record.” (See C.R. 18; see also C.R. 254
(Plaintiff’s similar arguments below on this subject).)
A review of the IEP for that year notes a one hour and thirty minute ELA block in the
special education class to be provided daily, on a 15:1 basis, with no mention of the type of
program that would be implemented. (See C.R. 5059 (D-24).) As Plaintiff argued below: “Not
one evaluation, report, letter, email, report card, progress report, or IEP (comments section as
well, academic section, goals and objectives) contains any reference to [the use of] a Wilson
program with A.A., to data pertaining to Wilson, or to progress A.A. made using Wilson.”
(C.R. 251.) Although a “district ‘may not introduce testimony that a different teaching method,
not mentioned in the IEP, would have been used’” to support the validity of an IEP, E.M. v.
N.Y.C. Dep’t of Educ., 758 F.3d 442, 462 (2d Cir. 2014), the record evidence does support the
35
idea that some sort of Wilson-based program was generally used with A.A.—and the extended
ELA time block would have allowed for that program to be used during the 2012-2013 school
year. 28 See E.W.K. ex rel. B.K. v. Bd. of Educ. of Chappaqua Cent. Sch. Dist., 884 F. Supp. 2d
39, 52-54 (S.D.N.Y. 2012) (IEP found to be adequate where plaintiffs argued student in question
needed a “multi-sensory approach such as Orton Gillingham” but evidence adduced at hearing
demonstrated CSE balanced student’s needs and provided “two 40–minute sessions of reading
instruction services per week at a 5:1 ratio”) (collecting cases); see also Matrejek v. Brewster
Cent. Sch. Dist., 471 F. Supp. 2d 415, 427 (S.D.N.Y. 2007), aff’d, 293 F. App’x 20 (2d Cir.
2008) (IEP for a dyslexic student was adequate, where student was “offered specially designed
reading instruction in a small group setting, using the Wilson Methodology,” though notably
only in 30 minute blocks, “testing accommodations and classroom modifications appropriate for
his dyslexia, ADHD and lack of organizational skills”).
The 15:1 class setting, however, is antithetical to the Wilson approach. Ms. Graff noted
that one-on-one, direct instruction was necessary to make sure the method was being adequately
received. (C.R. 2585 (Graff) (“If you spell something wrong, you can’t practice it that way.”).)
Dr. Braniecki’s recommendation for 1:1 assistance, introduced at the hearing, bolsters Ms.
Graff’s testimony and opinion that the 15:1 special education classroom alone was inadequate to
address A.A.’s reading issues. Cf. Matrejek, 471 F. Supp. 2d at 427 (inclusion of small group
instruction was one factor demonstrating adequacy of IEP); E.W.K., 884 F. Supp. 2d at 52-54
(same); (C.R. 2585-86 (Graff) (“you need to have somebody who is there checking what you’re
doing, delivering that type of lesson, following through with the Orton approach.”)). Prior to his
28
Ms. Graff specifically opined at the hearing that the time spent instructing A.A. would not have been
appropriate for his needs (C.R. 2585-87), but it is unclear whether she was referring to the reduced ELA block
present in his 2013-2014 IEP or the longer period offered in his 2012-2013 IEP.
36
inclusion in the special education classroom, A.A in fact received his Wilson instruction in a
more appropriate 2:1 pull-out environment with Ms. Mahoney. (C.R. 1049-50 (“It was a full
Wilson model, with one other student, so it was just the three of us.”).) But the 15:1 ratio of the
special education classroom would not have permitted the level of direct interaction the
witnesses testified was required under Wilson. (C.R. 1060-61 (noting there were 15 students in
the ELA special education class during A.A.’s second grade year).)
Thus, despite the fact that A.A. appears to have progressed, he was nevertheless placed in
a program that was not tailored to his needs with a group of students too large to successfully
administer that program. 29
2. Whether the District’s program of instruction was offered in the
least restrictive environment
The IDEA states a clear preference for mainstreaming students with disabilities: “To the
maximum extent appropriate, children with disabilities, including children in public or private
institutions or other care facilities, are [to be] educated with children who are not disabled[.]” 20
U.S.C. § 1412(a)(5)(A). Thus, “the presumption in favor of mainstreaming [is] weighed against
the importance of providing an appropriate education to [] students” with disabilities, P. ex rel.
Mr. & Mrs. P. v. Newington Bd. of Ed., 546 F.3d 111, 119 (2d Cir. 2008) (citation omitted), in
cases where “education in regular classes . . . cannot be achieved satisfactorily.” 20 U.S.C.
§ 1412(a)(5)(A) (“only when the nature or severity of the disability of a child is such that
education in regular classes with the use of supplementary aids and services cannot be achieved
29
The IHO also focused on A.A.’s math instruction without recognition that his educators did not feel
math was a particular area of concern at the time that his IEP was formulated. (See C.R. 1143 (Mahoney).) In fact,
the school psychologist noted that reading comprehension was the most critical area because it impacted all other
subjects. (C.R. 883-84 (Grant) (“[r]eading [c]omprehension [] is the single most important [skill] a child needs to
progress in an educational setting”).)
37
satisfactorily” is it appropriate to use “special classes, separate schooling, or other removal of
children with disabilities from the regular educational environment”).
The decision by the IHO, affirmed by the SRO, that A.A. was placed in the least
restrictive environment is also against the weight of the testimony. “The school must aim to
minimize the restrictiveness of the student’s environment while also considering the educational
benefits available in that environment, ‘seek[ing] an optimal result across the two
requirements.’” T.M., 752 F.3d at 162 (quoting M.W., 725 F.3d at 145). To be sure, the District
witnesses uniformly indicated that more supports were needed for A.A. beyond the pull-out
sessions, or the RTI supports, put in place during his second grade year. But “[u]nder the IDEA,
a disabled student’s least restrictive environment refers to the least restrictive educational setting
consistent with that student’s needs, not the least restrictive setting that the school district
chooses to make available.” Id. at 163 (emphasis added).
The IHO cursorily addressed the CSE’s mainstreaming of A.A., noting that the CSE, Ms.
Graff, and Ms. Mahoney agreed he should receive as much mainstreaming as possible and then
finding “that the CSE’s recommendation for mainstreaming in the 2012[-2013] school year was
appropriate.” (C.R. 206 (noting he received “mainstreaming in all subject areas other than ELA
and math”).) The SRO adopted this conclusion, finding the special education classroom
appropriate “due to the student’s need for special instruction in a smaller classroom
environment.” (C.R. 18.) 30 Neither determination reflects the measured weight of the evidence.
30
The SRO also rejected Plaintiff’s arguments below that A.A. was kept in the special education
classroom for the majority of his day in contravention of the IEP, finding “the hearing record d[id] not support a
finding that there was a material deviation from [his] IEPs.” (C.R. 19.) Although Ms. Graff testified that after the
RTI meeting, A.A. spent only 37 minutes per day in her classroom—meaning he spent the vast majority of his time
in the special education classroom (C.R. 123 (Graff); see C.R. 2604)—there were other slots in the day, including
gym, lunch, recess, and music, where he was present with the mainstream students. (See C.R. 3850-51 (Avaras).)
The Court agrees with the SRO in this regard; the question remains, however, whether it was appropriate for A.A. to
receive the majority of his educational instruction in the special education classroom.
38
Ms. Graff specifically testified that A.A. had no behavioral issues (C.R. 2394-95 (“He
was not a behavior problem, ever.”), 2418) and that it “was a detriment for him” to be pulled out
of the mainstream. (C.R. 2469 (“he really, socially, could have thrived in the mainstream”).)
She felt that A.A. needed to socialize with children at his level and that the recommended
program was not appropriate. (C.R. 124.) But, she never voiced these concerns because, in her
view, there were no other choices available. (C.R. 124; see also C.R. 3782 (Avaras) (“there were
no alternatives on the table”).) Indeed, A.A. voiced his own disappointment at the placement to
his parents repeatedly. (C.R. 3852 (Avaras) (“he hated school” after his placement), 5052 (D-24)
(IEP minutes note A.A.’s parents brought his “unhappiness in school” to the CSE’s attention).)
“In order to comply with the LRE requirement, . . . a school district must consider an
appropriate continuum of alternative placements, and then must offer the student the least
restrictive placement from that continuum that is appropriate for the student’s disabilities.” T.M.,
752 F.3d at 163. A.A. was placed in a self-contained classroom with no non-disabled students
(C.R. 204-205; see also 582 (Grant) (describing makeup of class))—and without the beneficial
social interactions he was accustomed to prior to his shift from the general education classroom
to the special education setting. Moreover, the IEP (C.R. 5052 (D-24)) provides no indication
that the CSE considered the creation of small integrated classrooms, with disabled and nondisabled students, in order to accommodate the various reading issues encountered by
Woodglen’s students and A.A. in particular. See, e.g., M.F. v. Irvington Union Free Sch. Dist.,
719 F. Supp. 2d 302, 309 (S.D.N.Y. 2010) (student’s “educational program for the [upcoming]
school year was changed from a self-contained setting to consultant teacher services because it
appeared to the school psychologist . . . that [his] ‘availability to learning was actually greater in
the larger classroom setting’” and his “decoding problems were adequately addressed by the
39
CSE’s recommendation to enroll [him] in a daily developmental reading class with . . . a certified
reading specialist”).
Because the District did not consider an appropriate continuum of alternative placements
when it decided to place A.A. in the self-contained classroom, he was not placed in the least
restrictive environment necessary to address his disabilities. See T.M., 752 F.3d at 162 (program
offerings found inadequate where “self-contained special education classrooms with no
nondisabled students” placed the student “in a more restrictive educational setting for his
[educational] program than his disability required”); G.B. ex rel. N.B. v. Tuxedo Union Free Sch.
Dist., 751 F. Supp. 2d 552, 575 (S.D.N.Y. 2010), aff’d, 486 F. App’x 954 (2d Cir. 2012) (no
evidence that “the CSE considered accommodating [the student’s] need for a small class by
placing her in a small, integrated classroom”). The District cannot skirt its obligations under the
IDEA by only providing two choices—education is neither a one-size fits all proposition nor is it
simply binary.
*
*
*
Therefore, a preponderance of the evidence does not support the IHO and SRO’s
determination that the 2012-2013 IEP would have provided A.A. with a free and appropriate
public education in the least restrictive environment.
ii. Whether A.A. Was Offered a Free and Appropriate Public Education in
the Least Restrictive Environment During the 2013-2014 School Year
The Court agrees with the SRO and IHO, though for additional reasons, that the District
did not provide A.A. with an appropriate educational opportunity for the 2013-2014 school year.
The SRO adopted “the IHO’s determination that the June 2013 CSE lacked sufficient evaluative
data to make a recommendation for the 2013-[2014] school year[.]” (C.R. 19.) Specifically, the
IHO concluded that “the District had no access to educational records from Hawk Meadow or
40
Arlington upon which to . . . base its recommendations for the 2013[-2014] school year.”
(C.R. 212-23 (“the District had insufficient evaluations and information about the Student at the
time it met to recommend a program for the Student on June 19, 2013, and as such, the IEP does
not reflect the results of recent evaluations and educational information to identify the Student’s
needs, rendering the IEP inappropriate”).) 31 This Court concurs with that conclusion.
“A local educational agency’s duty to provide a FAPE is not ended by enrollment of a
resident child in a private school outside the district.” Doe, 790 F.3d at 450. Therefore, despite
his placement at Hawk Meadow, A.A. was entitled to an IEP designed by the District and
“reasonably calculated to enable [him] to make progress appropriate [to his] circumstances.”
Endrew F., 137 S. Ct. at 1001. The District’s recommendations for A.A.’s IEP for 2013-2014
were largely the same as the prior year’s IEP and were not based on reports of his progress at
Hawk Meadow. (C.R. 70-71; C.R. 5095-5105 (D-41) (adding 45 minutes per day of a five
student resource room).) An IEP based on stale information, without the benefit of any recent
educational progress metrics or evaluations, cannot be reasonably calculated to ensure
appropriate progress. See, e.g., E.H. v. N.Y.C. Dep’t of Educ., 164 F. Supp. 3d 539, 556
(S.D.N.Y. 2016) (“By using goals that were designed to expire by the time the IEP was to
implement them (for a full year thereafter), the DOE has not shown that the IEP was likely to
produce progress.”); see also Engwiller v. Pine Plains Cent. Sch. Dist., 110 F. Supp. 2d 236, 240
(S.D.N.Y. 2000) (noting that the IDEA requires the IEP to be “reviewed and revised each school
year” (citing 20 U.S.C. § 1414(d))); Anchorage Sch. Dist. v. M.P., 689 F.3d 1047, 1058 (9th Cir.
31
The IHO recognized “the District’s position that the Parents interfered” with its ability to accumulate
new evaluative data, but concluded those were issues for the third prong of the Burlington-Carter test—balancing of
the equities. (C.R. 213); see also Anchorage Sch. Dist. v. M.P., 689 F.3d 1047, 1055–56 (9th Cir. 2012)
(“participating educational agencies cannot excuse their failure to satisfy the IDEA’s procedural requirements by
blaming the parents”).
41
2012) (continued reliance on an outdated, year-old IEP is “not reasonably calculated to ensure
educational benefits” are provided to student); cf. M.H., 685 F.3d at 256 (reliance on goals from
a year prior, without evidence they had become inappropriate, did not result in a deficient IEP).
Moreover, in this case, the District not only relied on stale information but it apparently
disregarded the only new information it did possess. The record shows that the District became
aware of Dr. Braniecki’s evaluation of A.A. “around the time of” the June 19, 2013 CSE meeting
where the 2013-2014 IEP was designed. (C.R. 94.) This means that the District never updated
the IEP to include any form of “disability” despite Braniecki’s conclusion that A.A. had ADHD
and a learning disability in written expression. (C.R. 129-30, 132, 133-34 (“her findings were
consistent with a diagnosis of ADHD and a learning disability,” but “she could not diagnose him
with a reading disability”).) 32 Although Braniecki did not think a classification of learning
disabled should replace the classification of OHI, she testified that both classifications were
accurate and the disabilities “impact each other.” (C.R. 142 (Braniecki); C.R. 4865 (P-W)
(“given his learning difficulties, it is strongly recommended that his classification include
learning disability to be able to better accommodate his multiple needs”).)
Given the record, the Court cannot adopt the SRO’s conclusion that “even if the other
health-impairment classification were not the most appropriate, it did not compromise the
student’s right to an appropriate education.” (C.R. 15.) In this instance, failing to revise the IEP
to include this new information—which directly related to A.A.’s educator’s primary concern
(his ability to comprehend information)—rendered the IEP deficient.
32
“The IDEA [also] requires school districts to reevaluate students with disabilities at least once every
three years to ensure that educational programs are well-suited to the student’s evolving needs.” V.M., 954 F. Supp.
2d at 117–18 (citations omitted).
42
iii. Whether Plaintiff’s Unilateral Placement of A.A. at Hawk Meadow
During the 2012-2013 and 2013-2014 School Years was Appropriate
The District Defendants focus on their contention that Hawk Meadow was not an
appropriate alternative, despite the IHO and SRO concluding, albeit for more limited reasons
than this Court, that the IEP for 2013-2014 was deficient. It bears noting at the outset that the
IHO and SRO did not determine the appropriateness of Hawk Meadow for the 2012-2013 school
year because it found A.A. received a free and appropriate public education for that year.
Nevertheless, the opportunities available at Hawk Meadow were fully discussed by the IHO and
considered by the SRO. Thus, the Court can decide the appropriateness for both years based on
the information presented at the hearing.
“Unilateral withdrawal [] will in most cases be the parents’ most attractive option when
faced with an IEP to which they object[.]” E.M., 758 F.3d at 452. A private placement is
appropriate if it is “reasonably calculated to enable the child to receive educational benefits,”
C.F., 746 F.3d at 82 (quotation marks omitted), “such that the placement is likely to produce
progress, not regression,” C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 (2d Cir.
2014) (quotation marks omitted). “In determining whether a placement reasonably serves the
educational needs of a child with a disability and is likely to produce progress,” a reviewing
court may consider the “totality of the evidence, including ‘grades, test scores, regular
advancement, or other objective evidence.’” T.K., 810 F.3d at 877; see also Gagliardo v.
Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007); Knable ex rel. Knable v. Bexley
City Sch. Dist., 238 F.3d 755, 770-71 (6th Cir. 2001) (unilateral private placement appropriate
where, inter alia, class sizes were small, the student made significant educational progress, and
his grades and behavior improved significantly). But “[n]o one factor is necessarily
dispositive[.]” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006).
43
The test for the private placement “is that it is appropriate, and not that it is perfect.” C.L.,
744 F.3d at 837 (quotation marks omitted). In fact, parents bear a lower burden with regard to
demonstrating the appropriateness of a private placement than school districts do when
demonstrating the adequacy of the educational opportunity provided because “parents are not
barred from reimbursement where a private school they choose does not meet the IDEA
definition of a free and appropriate public education.” Frank G., 459 F.3d at 364. “To qualify
for reimbursement under the IDEA, parents need not show that a private placement furnishes
every special service necessary to maximize their child’s potential,” id. at 365, though it must,
“at a minimum, provide some element of special education services in which the public school
placement was deficient.” Id. (citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 523 (6th
Cir. 2003)).
The District and the CSE made no formal finding regarding the comparability of the
District’s offering for A.A. and the program offered by Hawk Meadow. (C.R. 68, 90 (Fucci),
115 (Carlson).) At the hearing, Mr. Fucci testified on behalf of the District that he was
concerned with the small number of students in the school and the school’s and staffs’ lack of
state certification. (C.R. 91 (Fucci); see also C.R. 147-48, 166 (Castle) (confirming Hawk
Meadow was not approved by New York State to provide either middle school level or special
education services, though it was registered with the Montessori Society to provide education
through the middle school level).) But “[a]n appropriate private placement need not meet state
education standards or requirements” or “provide certified special education teachers or an IEP
for the disabled student.” Doe, 790 F.3d at 451 (quoting Frank G., 459 F.3d at 364). Indeed, Dr.
Braniecki testified that a Montessori education might be appropriate, even without special
44
education programming, because the typical strategies used in a Montessori education have been
found to be helpful for children with disabilities. (C.R. 139.)
Hawk Meadow provided A.A. with a number of benefits that were lacking from the IEPs
created for him by the District, including small class sizes, integrated student environments, and
a multisensory approach to learning. 33 While it is still an open question as to whether small class
sizes—“the kind of educational and environmental advantage[] . . . that might be preferred by
parents of any child, disabled or not,” Doe, 790 F.3d at 452 (quoting Gagliardo, 489 F.3d
at 115)—on their own are sufficient to make an alternative placement more appropriate than a
school district’s offering, A.A. received other benefits rendering Hawk Meadow appropriate.
Compare Frank G., 459 F.3d at 365-66 (“We need not decide that small class size alone
rendered the [alternative] placement appropriate because [the student’s] teacher at [the school]
adapted her instruction to meet his needs”), with Doe, 790 F.3d at 452, cert. denied, 136 S. Ct.
2022 (2016), reh’g denied, 136 S. Ct. 2546 (2016) (alternative placement “school did not offer
any special education services and did not modify its curriculum to fit the Student”).
Specifically, during his fifth grade year at Hawk Meadow, A.A. was in an upper
elementary group with a total of five students. (C.R. 149.) Throughout this year, Ms. Graff also
acted as a tutor for A.A. in connection with an additional teaching certification program she was
completing, (C.R. 125 (Graff)), and she testified that Hawk Meadow was using a “multisensory”
approach based on the “Orton-Gillingham” model in teaching its students. (C.R. 126.) Ms.
Castle clarified during her testimony that the school followed the “Sequential English Education”
(SEE) approach, which was “specifically designed to help students with reading and writing
33
Both Ms. Graff and Dr. Braniecki testified to the importance of a multisensory approach and the benefits
of a smaller class size—emphasizing the need for one-on-one instruction when it came to reading support.
45
difficulties.” (C.R. 152.) 34 And, during his sixth grade year at Hawk Meadow, A.A. was in an
upper elementary group with a total of nine students—where half of the other students had
special education classifications and the other half did not. (C.R. 149, 169; see C.R. 5261 (D91), 4962-63 (P-III) (describing the class profile)); see, e.g., S.C. v. Katonah-Lewisboro Cent.
Sch. Dist., 175 F. Supp. 3d 237, 267 (S.D.N.Y. 2016), aff’d, --- F. App’x ----, No. 16-1838, 2017
WL 1906729 (2d Cir. May 9, 2017) (“Although Plaintiffs are not held to the same
mainstreaming requirements as school districts, it bears noting that one consideration for
determining whether a program is the least restrictive environment is ‘whether the school has
included the child in school programs with nondisabled children to the maximum extent
appropriate’”) (citations omitted).
Ms. Castle, the co-founder—along with Plaintiff’s sister—of Hawk Meadow, described
the Montessori education program as a “scaffolded sequential educational curriculum,” and
explained that the instruction is essentially entirely differentiated: “each child is working at his or
her own pace.” (C.R. 144-45 (Castle), C.R. 149.) She explained that all Montessori materials
incorporate visual, auditory, and kinesthetic properties—i.e., are multisensory. (C.R. 156.) She
also testified that the recommendations Dr. Braniecki had made as part of her evaluation were
implemented in the course of instruction that A.A. received. (C.R. 160.)
In terms of qualitative measures of A.A.’s emotional and social progress, Ms. Graff saw a
difference in A.A.’s view of school: he was excited to share what he was doing at Hawk
Meadow. (C.R. 126; see also C.R. 256 (Plaintiff’s arguments below).) At this time, he also
confided in her about some of the bullying he experienced at Woodglen. (C.R. 126.) Overall,
34
As an additional support, A.A. also had access to an “independent workstation,” which allowed him to
have a space to focus and work, designed to aid with his organizational issues. (See C.R. 156 (describing the time
he spent and in what form at his desk).)
46
she observed A.A. make slow upward progress despite continuing to struggle. (C.R. 126.)
Plaintiff testified that it was not until A.A.’s sixth grade year that she witnessed social,
emotional, and academic growth from his placement at Hawk Meadow. (C.R. 163 (she indicated
the first year was difficult for him).)
Ms. Castle, after reviewing A.A.’s November 2013 progress report, testified that it
showed some regression but also improved confidence. (C.R. 170; C.R. 4788 (P-B) (progress
report).) When she was asked to compare the report from the end of the previous year
(C.R. 4805 (P-J)) with the November 2013 report, she noted some progress, but a number of
areas where his progress decreased. (C.R. 171.) Ms. Castle testified that although A.A. was a
fifth grader when he entered Hawk Meadow, he was only reading at a second or third grade
level; yet, at the time of the hearing, A.A. had advanced to a fifth grade level and was
interpreting passages. (C.R. 157.)
As for quantitative measures of progress, the CSE did not have access to Ms. Avecilla’s
re-evaluation of A.A. conducted on June 20, 2013. At the hearing, however, Ms. Grant
compared Ms. Avecilla’s evaluation to Dr. Braniecki’s report and opined that A.A. had generally
declined—which was to be expected given his drastic decline in reading comprehension (68th
percentile to 37th percentile). (C.R. 85; see also C.R. 111-12 (Avecilla) (testifying regarding
general decrease in standardized testing scores during re-evaluation, but noting A.A.’s word
reading had increased from the 32nd to 50th percentile).) Notably, however, Dr. Braniecki opined
at the hearing that the decline “may or may not” be a result of A.A.’s attendance at Hawk
Meadow. (C.R. 140.)
The IHO concluded that A.A. was not making progress under the program offered by the
Montessori school. (C.R. 224 (“[A.A.] regressed in his Hawk Meadow placement as evidenced
47
by his Upper Elementary Progress Reports and in the results of standardized testing”).) The
SRO acknowledged that “not all of the factors considered by the IHO [were] relevant to the
appropriateness of the parents’ unilateral placement (e.g., the school’s accreditation and teacher
certifications),” but concluded nonetheless that the “totality of the circumstances” demonstrated
that Hawk Meadow “failed to address [A.A.’s] special education needs.” (C.R. 20.) Specifically,
the SRO noted agreement with “the IHO’s finding that [A.A.] received limited special education
instruction as part of his school day.” (Id.) The SRO determined, in accordance with the IHO,
that “instead of receiving specialized instruction at Hawk Meadow, [A.A.] worked independently
at his desk for the majority of his school day.” (Id.) Thus, the SRO did not address A.A.’s
progress at Hawk Meadow.
“[A]ssessment of educational progress is a type of judgment for which the district court
should defer to the [administrative hearing officer’s] educational experience.” Doe, 790 F.3d
at 451 (quoting Frank G., 459 F.3d at 367 (internal quotation marks omitted)). However, in this
case, the IHO inappropriately relied, again, on information that was not in the possession of the
CSE at the time the IEP was created for the 2013-2014. (C.R. 216 (discussing Ms. Avecilla’s
July 2013 report and the finding that “mathematics proved to be the area of greatest need” for
A.A.).) Therefore, the IHO’s conclusion “that Hawk Meadow did not provide educational
instruction specifically designed to meet the unique academic needs of [A.A.] in the area of
math” assumes math, rather than literacy, was the main focus of A.A.’s educational struggles.
(C.R. 224.) But, as discussed at length above, all of A.A.’s educators focused on his reading and
decoding issues. Similarly, the IHO’s conclusion that no services were provided to address
A.A.’s self-esteem and anxiety issues (C.R. 218) conflicts with the direct testimony of Plaintiff
and Ms. Graff, provided at the hearing, indicating that A.A. was excited about school and,
48
though he started out unsure of himself, grew more confident during his time in the Montessori
setting. (C.R. 126 (Graff); C.R. 4078-79 (Avaras).)
Thus, the largest impediment to finding Plaintiff’s alternative placement appropriate is
that A.A. did not progress by certain metrics. (C.R. 221 (IHO’s review of Ms. Avecilla’s
evaluation)); cf. Frank G., 459 F.3d at 365 (the student’s “social and academic progress, and his
score on [a standardized test], support the appropriateness of the placement”). His lack of
progress on standardized testing, however, is not dispositive as to the appropriateness of the
placement. Cf. S.C., 175 F. Supp. 3d at 266 (affirming IHO’s determination that “low
standardized test scores” at the alternative placement “did not provide an accurate depiction of
[the student’s] academic progress”).
Although the Court gives due consideration to the IHO and SRO’s determinations, the
weight of the evidence supports the conclusion that Hawk Meadow—which arguably did not
provide the best education for A.A.—was a suitable alternative. As the IHO noted, at Hawk
Meadow “lessons were presented to students 1:1 [and] everyone in the group had 1:1 instruction
at various times in the morning” (C.R. 216): a critical aspect of the educational program that was
missing from the District’s IEPs. Moreover, the SRO’s conclusion that A.A. received “limited
special education instruction” ignores the fact that he was immersed in a multi-sensory program,
specifically designed to address reading and writing issues, where each student worked at his or
her own pace. Finally, A.A. made progress, in a completely integrated small class environment,
in two critical areas: self-esteem and reading. Notably, his reading advanced both by nonstandardized assessments (C.R. 157 (A.A.’s reading advanced to a fifth grade level, and he was
interpreting passages)) and by certain aspects of the standardized testing discussed at the hearing.
(C.R. 111-12 (Avecilla) (A.A.’s word reading had increased from the 32nd to 50th percentile).)
49
Therefore, the Court concludes that by a preponderance of the evidence presented at the
hearing, Hawk Meadow was an appropriate alternative placement for A.A. in that it provided
“element[s] of special education services in which the [District] was deficient.” Frank G., 459
F.3d at 365 (citation omitted).
c. Whether the Equities Favor Reimbursement
Having determined that the District did not provide A.A. with an appropriate educational
opportunity for his fifth (2012-2013) and sixth (2013-2014) grade years and that Hawk Meadow
was an appropriate alternative placement designed to address his particular learning needs, the
next necessary determination pursuant to the Burlington/Carter test is whether a balance of the
equities favors reimbursement. See Burlington, 471 U.S. at 374. Generally speaking, however,
courts only address this final factor when there are fully developed conclusions on the issue from
the state agencies. See, e.g., M.H. v. N.Y.C. Dep’t of Educ., 712 F. Supp. 2d 125, 166–67
(S.D.N.Y. 2010), aff’d, 685 F.3d 217, 254 (2d Cir. 2012) (“the SRO did not reach the issue,
although the IHO . . . found ‘that equitable considerations support tuition reimbursement’”);
D.M. v. City Sch. Dist. of the City of N.Y., No. 15 Civ. 1619 (LGS), 2016 WL 319859, at *8
(S.D.N.Y. Jan. 26, 2016) (SRO did not address third prong, but Court concurred with IHO “that
the equities weigh in favor of reimbursement,” particularly since Defendant was found to have
conceded the issue); Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660 (S.D.N.Y.
2005) (SRO did not reach the issue, but Court would “agree with the IHO that the parents are not
equitably entitled to reimbursement”); cf. D.N. ex rel. D.N. v. Bd. of Educ. of Ctr. Moriches
Union Free Sch. Dist., No. 14 Civ. 99 (GRB), 2015 WL 5822226, at *16 (E.D.N.Y. Sept. 28,
2015), appeal withdrawn (Nov. 30, 2015) (“While neither the IHO nor the SRO considered the
third prong, [they] made sufficient findings of fact” to allow the Court to consider the issue).
50
Here, particularly in light of the IHO’s categorization of certain issues as falling within
the equities prong and corresponding reticence to address that prong as unnecessary (see supra
note 31; C.R. 213, 235), the Court is unable to engage in an IDEA review without providing the
IHO and SRO an opportunity to determine the balance of the equities in the first instance.
See, e.g., T.C. v. New York City Department of Education, No. 15 Civ. 2667 (KPF), 2016 WL
4449791, at *26 (S.D.N.Y. Aug. 24, 2016) (remanding to the SRO for determination on a
“limited ground” where the record was unclear).
II.
Other Claims
Having addressed the vast majority of Plaintiff’s claims in the preceding IDEA review,
the Court now turns to her remaining claims. A review of the operative complaint indicates that
she is also attempting to plead claims under the ADA, the RA, and § 1983. (Compl. at 2.)
a. Inapplicability of the IDEA’s Exhaustion Requirements
Contrary to Defendant’s arguments that these claims are “barred” because they are
unexhausted (Dist. Mem. at 2, 12-14), “even when the suit arises directly from a school’s
treatment of a child with a disability—and so could be said to relate in some way to [the child’s]
education”—if the hearing officer could not have offered Plaintiff the relief she sought on these
claims, then exhaustion is inapplicable. Fry, 137 S. Ct. at 754. 35 In Fry, the Supreme Court
addressed the exhaustion requirement in a similar scenario. There, the plaintiffs sought relief
under the IDEA, ADA, and RA for an elementary school’s refusal to allow their daughter’s
service dog, Wonder, to accompany her to school. Id. at 751. The harm suffered was emotional
distress, pain, embarrassment, and mental anguish as a result of the alleged discrimination: the
35
Fry was decided after the parties submitted their briefing on these issues.
51
decision to not allow the service animal to accompany the student. Id. at 752. The plaintiffs
sought declaratory and monetary relief. Id.
The Fry court posed two hypothetical questions to assist in answering whether the
gravamen of a complaint concerns the denial of an appropriate educational opportunity or some
other form of discrimination protected by another statute. First, would the claim be viable
against “a public facility that was not a school[?]” Id. at 756. And second, could an adult rather
than a student make the same claim against the school? Id. Negative answers suggest the
complaint revolves around the IDEA and that the exhaustion requirements apply, while
affirmative answers mean the opposite—that the complaint is “unlikely to be truly about” the
IDEA. Id.; but see id. at 759 (Alito, J., concurring) (“these clues work only in the absence of
overlap”). “In short, the IDEA guarantees individually tailored educational services, while [the
ADA] and [RA] promise non-discriminatory access to public institutions.” Id. at 756.
Here, Plaintiff alleges A.A. was “warehoused” in a self-contained classroom and that she
and A.A. were subjected to “due process administrative procedures that violated due process,
[the] IDEA, and Section 504.” (Compl. at 6.) As to the Department, she specifically alleges that
it abdicated its oversight responsibilities and failed to ensure school districts were in compliance
with applicable law. (Compl. at 10-11.) She also alleges “[c]ountless requests” for A.A.’s
educational records were denied. (Compl. at 7.) In terms of relief, she seeks compensatory and
punitive damages (for lost wages, private counseling “due to segregation discrimination,” and
attorneys’ fees), and a full audit of the District. (Compl. at 4.) She alleges A.A. was denied a
free and appropriate public education, as well as injuries unrelated to such a denial including
psychological, emotional, and financial injury to herself and A.A. (Compl. at 3.)
52
It is beyond question that Plaintiff exhausted all facets of her IDEA claim that the Court
addressed above. Therefore, to the extent Plaintiff’s claims are completely duplicative of her
IDEA claims, they have been addressed. The two categories of claims the Court must consider
are a) claims that also could have been addressed via the IDEA and b) claims which seek relief
separate and apart from that provided available under the IDEA. The portion of these claims that
overlap with the IDEA—i.e., those that complain of A.A.’s educational experience and seek
tuition reimbursement or related monetary damages—and which were not raised with the IHO
and SRO cannot be raised for the first time in this Court. (See, e.g., Compl. at 7 (alleged “stay
put” violation), 8 (alleged procedural violation based on the District’s alleged failure to provide
Plaintiff with a “listing of continuum of alternative placements”).) Nevertheless, much of the
relief she seeks is not available under the IDEA, such as lost wages and punitive damages. To
the extent any of her non-IDEA claims are viable, addressed below, they are not subject to the
IDEA’s exhaustion requirement because “[a] hearing officer, [lacking the power to order any
relief], would have [had] to send her away empty-handed.” Fry, 137 S. Ct. at 754.
b. The Department’s Motion to Dismiss
To the extent that Plaintiff seeks monetary damages against the Department under the
IDEA, whether for compensatory or punitive damages, such damage claims cannot be brought
under the IDEA and must be dismissed. See Polera v. Bd. of Educ. of Newburgh Enlarged City
Sch. Dist., 288 F.3d 478, 486 (2d Cir. 2002). The proper relief, if applicable, will be the
reimbursement of Plaintiff’s tuition and related expenses for A.A.’s placement at Hawk
Meadow. Moreover, as discussed above, the Department is not a proper or necessary party to
Plaintiff’s IDEA claims. Absent specific allegations of violations of federal and state law by the
Department that may have led to procedural deficiencies at the district, IHO or SRO levels—
53
allegations which are not present here—such an action cannot be brought against the
Department. See, e.g., Yamen by Yamen v. Bd. of Educ. of Arlington Cent. Sch. Dist., 909 F.
Supp. 207, 211 (S.D.N.Y. 1996) (“complaint contain[ed] no allegation of any action or practice
on the part of the State defendants . . . that may have led to the alleged procedural deficiencies at
the district level, the impartial hearing or before the State Review Officer”). Plaintiff’s
conclusory allegations about what her “tapes will reveal” regarding allegedly inappropriate ex
parte communications and perjury provide no details from which the Court can surmise a
plausible allegation of wrongdoing. (See Compl. at 11.) 36
Furthermore, any claim asserted against the Department as a state agency under New
York Education Law related to bias by the IHO or SRO, or pursuant to Section 1983, is barred
by the Eleventh Amendment, or sovereign immunity—particularly since Plaintiff does not seek
cognizable injunctive relief. See, e.g., A.A. v. Bd. of Educ., Cent. Islip Union Free Sch. Dist.,
196 F. Supp. 2d 259, 263-66 (E.D.N.Y. 2002), aff’d sub nom, A.A. ex rel. J.A. v. Philips, 386
F.3d 455, 457 (2d Cir. 2004) (noting the district court had “dismissed all monetary claims against
SED for alleged past violations of federal law, whether such relief was sought under the IDEA,
Section 504, or through § 1983; and dismissed plaintiffs’ separate claim under the New York
State Education Law on the ground that the claim was barred by the Eleventh Amendment”); see
also Bd. of Educ. of the Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d 476, 479-80 (2d Cir. 2002)
(affirming dismissal of § 1983 claims against the Department on Eleventh Amendment grounds).
Assuming that the process set out in the IDEA creates a due process right traditionally
enforceable under § 1983, the Second Circuit has repeatedly held that a § 1983 due process claim
36
The Court does not agree with the Department’s mootness argument (that any potential procedural
infirmities will be addressed and decided by this Court rendering the Department’s involvement in the litigation
unnecessary), given the potential for remand to the IHO and/or SRO in IDEA actions. (See Dep’t Mem. at 13-14.)
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is not available where there was an adequate state post-deprivation procedure to remedy an
alleged deprivation of due process—such as the IHO and SRO process. See Hellenic Am.
Neighborhood Action Comm. v. City of N.Y., 101 F.3d 877, 881 (2d Cir. 1996) (“there is no
constitutional violation (and no available § 1983 action) when there is an adequate state postdeprivation procedure to remedy a random, arbitrary deprivation of” a protected interest).
Therefore, the only potential claims that may be asserted against the Department are
claims under the ADA and RA, which are addressed below.
c. Claims under the ADA, RA, and § 1983 against the District
and the Department
i. The ADA and RA
Plaintiff’s claims allegedly brought pursuant to the ADA and RA are largely duplicative
of her IDEA claims—and seek the same relief. However, to the extent that some of the claims
are distinguishable either because they seek relief unavailable under the IDEA or because they
address specific acts of discrimination beyond simply the denial of a free and appropriate public
education, the Court considers whether any of the claims are plausibly alleged.
A plaintiff seeking to establish a prima facie case of discrimination under either the ADA
or the RA must allege facts sufficient to establish that: “(1) plaintiff is a ‘qualified individual
with a disability;’ (2) plaintiff was ‘excluded from participation in a public entity’s services,
programs or activities or was otherwise discriminated against by [the] public entity;’ and (3) such
exclusion or discrimination was due to [plaintiff’s] disability.’” B.C. v. Mount Vernon School
District, 837 F.3d 152, 158 (2d Cir. 2016) (quoting Fulton v. Goord, 591 F.3d 37, 43 (2d Cir.
2009)); see Ortiz v. Westchester Med. Ctr. Health Care Corp., No. 15 Civ. 5432 (NSR), 2016
WL 6901314, at *9 (S.D.N.Y. Nov. 18, 2016) (“the same legal standards govern the disability
provisions of the ADA [and] RA”).
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The first consideration, however, is not automatically established by a student receiving
special education services under the IDEA. “[T]he ADA and IDEA set forth distinct legal
standards in their definitions of ‘disability,’ such that an individual will not qualify for the
ADA’s protections simply by virtue of his or her disabled status under the IDEA.” B.C., 837
F.3d at 160. “[A] child might ‘need[ ] special education and related services’ by reason of an
impairment,” as required by the IDEA, “even if that impairment does not ‘substantially
limit[] . . . [a] major life activit[y],’” the definition of a disability under the ADA. Id. at 159
(comparing 20 U.S.C. § 1401(3)(A), with 42 U.S.C. § 12102(1)(A)). “A plaintiff seeking redress
under the ADA must ‘show that any limitations are in fact substantial, not amounting to only a
mere difference in conditions, manner, or duration.’” Id. at 160. Thus, “[t]hose seeking relief
pursuant to ADA or Section 504 must come forward with ‘additional evidence’—beyond simply
their eligibility for IDEA coverage—showing their eligibility for the remedies afforded by the
ADA and Section 504.” Id. at 161. Here, Plaintiff has offered no allegations separate from those
supporting his IDEA claims that would allow the Court to infer that A.A. is limited in a major
life function such that he would qualify as disabled under either statute.
Furthermore, even assuming arguendo that A.A. is disabled in such a sense and was
excluded from the District’s programs, the third requirement for a prima facie showing of
disability discrimination requires that the exclusion was a result of his disability. “Exclusion or
discrimination may take the form of disparate treatment, disparate impact, or failure to make a
reasonable accommodation.” Id. at 158. Where, as here, the gravamen of the complaint is the
denial of a free and appropriate public education, “there must be [at least allegations] that a
school district acted with deliberate or reckless indifference to the student’s federally protected
rights or with ‘bad faith or gross misjudgment.’” Schreiber v. E. Ramapo Cent. Sch. Dist., 700
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F. Supp. 2d 529, 564 (S.D.N.Y. 2010); see also Pinn ex rel. Steven P. v. Harrison Cent. Sch.
Dist., 473 F. Supp. 2d 477, 483 (S.D.N.Y. 2007) (“Where a plaintiff asserts denial of a free
appropriate public education . . . , plaintiff must demonstrate bad faith or gross misjudgment.”);
Gabel ex rel. L.G. v. Bd. of Educ., 368 F. Supp. 2d 313, 334 (S.D.N.Y. 2005) (noting that a
Rehabilitation Act claim may be brought if “a school district acts with gross negligence or
reckless indifference in depriving a child of access to a FAPE”). Here, Plaintiff’s IDEA claims
do not plausibly allege the necessary degree of bad faith, gross misjudgment, or deliberate or
reckless indifference required for disability discrimination claims under the ADA and RA.
The same holds true with respect to the Department. None of Plaintiff’s allegations
demonstrate that the Department took action against A.A. or Plaintiff in bad faith or as a result of
gross misjudgment or negligence. Plaintiff’s allegations, including that A.A. was “warehoused”
in a self-contained classroom, that she and A.A. were subjected to “due process administrative
procedures that violated due process, [the] IDEA, and Section 504” (Compl. at 6), that the
Department abdicated its oversight responsibilities and failed to ensure school districts were in
compliance with applicable law (id. at 10-11), and that “[c]ountless requests” for A.A.’s
educational records were denied (id. at 7), are either contrary to the record established with
respect to her IDEA claims or do not plausibly allege disability discrimination as a result of
deliberate or reckless indifference to A.A.’s disability.
Therefore, Plaintiff’s claims against the District and the Department must be dismissed
for failing to adequately allege that A.A. was “excluded from any programs, denied benefits, or
otherwise discriminated against on the basis of his disability.” A.G. on behalf of J.G. v. Bd. of
Educ. of Arlington Cent. Sch. Dist., No. 16 Civ. 1530 (VB), 2017 WL 1200906, at *12 (S.D.N.Y.
Mar. 29, 2017) (citation omitted). A.A. was provided educational benefits, as detailed above—
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Plaintiff is simply contesting whether the benefits provided were appropriate. See Streck v Bd. of
Educ. of the E. Greenbush Sch. Dist., 280 F. App’x 66, 68 (2d Cir. 2008) (dismissing ADA and
RA claims where student was “afforded ‘access to an existing program’” but the “content and
sufficiency of the IEP” were challenged).
ii. Section 1983
To the extent that Plaintiff is seeking to eventually introduce unrevealed tape recordings
of conversations between the IHO and others (Compl. at 11) to demonstrate “infirmaries in the
due process system,” she did not raise such a claim in her petition for SRO review. Moreover, as
noted above with regard to the Department, she also provides no details from which the Court
could infer that the District engaged in any actionable misconduct. Instead, having availed
herself of the administrative review process, Plaintiff is not entitled to pursue a damage claim
pursuant to § 1983 without plausibly alleging she was denied the procedural safeguards to which
she was entitled under the IDEA. See Streck, 280 F. App’x at 68 (“plaintiffs may not rely on
§ 1983 to pursue monetary damages for violations of the IDEA” where “they were afforded a
hearing before an impartial hearing officer and review by a state review office”).
CONCLUSION
For the foregoing reasons, the District Defendants’ motion for summary judgment is
GRANTED in part and DENIED in part, and the Department’s motion to dismiss is GRANTED.
All of Plaintiff’s non-IDEA claims are dismissed. As for Plaintiff’s IDEA claims, the Court
finds that 1) Plaintiff’s pre-2012-2013 claims are time-barred, 2) A.A. was denied a free and
appropriate public education for the 2012-2013 and 2013-2014 school years, and 3) Hawk
Meadow was an appropriate alternative for A.A. in light of his unique educational needs.
Because there is an insufficient record for this Court’s review on the final prong of the
Burlington/Carter test, and all of Plaintiff’s other claims have been dismissed, this matter is
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REMANDED to the IHO to consider the narrow issue of whether the equities favor reimbursing
Plaintiff for the costs associated with A.A.' s private placement at Hawk Meadow for the school
years (2012-2013 and 2013-2014) when he was denied a free and appropriate public education
by the District. See E.M v. N Y.C. Dep't ofEduc., 758 F.3d 442, 463 (2d Cir. 2014) (often it is
more useful for a district court to "remand the matter to state administrative officers for a []
reexamination in light of' the court's decision). Should either party wish to appeal any eventual
determination by the IHO, or SRO, on the equities of reimbursement, they should file a new
complaint on that limited issue indicating the case is related to this prior litigation.
The Clerk of the Court is respectfully requested to terminate the pending motions at ECF
Nos. 38 & 62 and to close the case.
Dated:
July il, 2017
White Plains, New York
SO ORDERED:
~
United States District Judge
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