The opinion of the court was delivered by: RICHARD CASEY, District Judge
Plaintiff Board of Education of the City School District of the
City of New York brings this suit against Defendant W.S., on
behalf of her minor child M.S., pursuant to the Individuals with
Disabilities Education Act, 20 U.S.C. § 1400, et seq. ("IDEA"),
to contest a State Review Officer's decision to award W.S.
tuition reimbursement for the 2000-2001 school year. Plaintiff
has discontinued its action against Defendant Richard Mills. Both
parties now move for summary judgment. For the reasons explained
below, the Board's motion for summary judgment is granted and
Defendant's motion for summary judgment is denied.
The IDEA offers federal funds to states that develop plans to
provide "all children with disabilities" a "free appropriate
public education." 20 U.S.C. § 1412(a)(1)(A). To meet the IDEA's
requirements, a school district must provide a disabled student
with "special education and related services" designed to serve
the student's needs. 20 U.S.C. § 1401(8); Grim v. Rhinebeck
Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003). School
districts are to administer the disabled student's services
through annual "individualized education programs" ("IEPs").
20 U.S.C. § 1414(d); Grim, 346 F.3d at 379. New York receives
federal IDEA funds and assigns responsibility for developing IEPs
to local Committees on Special Education ("CSE"). See N.Y.
Educ. Law § 4402(1)(b)(1) (McKinney 2001).
"New York parents who believe an IEP is insufficient under the
IDEA may challenge it in an `impartial due process hearing,'
see 20 U.S.C. § 1415(f), before an [Impartial Hearing Officer]
appointed by the local board of education, see N.Y. Educ. L. §
4404(1)." Grim, 246 F.3d at 379. "At this hearing and
throughout the subsequent administrative and judicial appeals
process, the school district bears the burden of proving by a
preponderance of the evidence that: (1) it complied with the IDEA
procedural requirements; and (2) the IEP is `reasonably
calculated' to confer `educational benefits' on the students."
J.R. v. Bd. of Educ. of the City of Rye Sch. Dist.,
345 F. Supp. 2d 386, 394 (S.D.N.Y. 2004) (quoting Bd of Educ. v.
Rowley, 458 U.S. 176, 206-07 (1982)). The Impartial Hearing
Officer's decision may be appealed to a [State Review Officer], see N.Y. Educ. L. § 4404(2) (McKinney 2001);
20 U.S.C. § 1415(g), whose decision may be challenged in either
state or federal court, see 20 U.S.C. § 1415(i)(2)(A).
Both while her family was living in New Jersey and after they
moved to New York City in 1998, Defendant placed M.S. in Stephen
Gaynor School, a New York City private school "totally for
children [with] learning disabilities." Def. Resp. to Pltf. 56.1
Stmt. ¶¶ 3, 4. After W.S.'s family had established New York City
residency, W.S. referred M.S. to Plaintiff's CSE. Id. ¶ 5. On
July 14, 1999, as required by the IDEA, the CSE issued an IEP for
M.S. Id. ¶ 9; see also 1999-2000 IEP at Botta Decl. Ex.
B.M.S.'s 1999-2000 IEP "classified [him] as learning disabled and
recommended General Education with Supplementary Aided Services
and Supplemental Instructional Services with counseling and
speech and language therapy." Def. Resp. to Pltf. 56.1 Stmt. ¶ 9.
W.S. did not place M.S. in a New York City public school at that
Before the CSE reviewed M.S.'s needs for the school year at
issue in this case, Defendant paid a deposit to re-enroll M.S. at
the Stephen Gaynor School. Id. ¶ 6. On May 31, 2000, the CSE
met to prepare M.S.'s IEP for the 2000-01 school year. Id. ¶
15. The CSE consisted of W.S., a district representative, a
general education teacher, a school psychologist, an education
evaluator/special education teacher, and the head teacher from
the Stephen Gaynor School. Id. ¶ 21; Pltf. 56.1 ¶ 24. The
parties agree that a parent member did not participate in that
meeting because "[o]ne was not available." Def. 56.1 Stmt. ¶ 4.
There is some dispute as to whether the CSE asked W.S. to waive
the parent member's presence or if she waived the parent member's
presence on her own. Id. ¶ 12; see also id. ¶ 10 ("W.S.
testified that she asked the team that if she did not agree to go
forward, would they have to do it another day, and that the team
responded yes, and at that moment she felt awkward."); Pltf.
Resp. to Def. 56.1 Stmt. ¶¶ 11, 12; see also Impartial Hearing
Tr. at 139, at Botta Decl. Ex. C (W.S. testifying: "I figured I
was a big shot. I could do this. I could do this.").
Nevertheless, W.S. did waive the presence of a parent member and
the CSE reviewed M.S.'s case on May 31. See Botta Decl. Ex. B
at 61 (handwritten note by W.S. stating: "The parent member can
help to explain and interpret at the meeting. I am willing to
continue without his presence. [W.S.]").
W.S. could have met with a Placement Officer to discuss M.S.'s
placement in a special education program at the completion of the
May 31 meeting, but she chose instead to schedule the meeting
after she had received and reviewed the IEP. Def. 56.1 ¶ 18. The
2000-01 IEP for M.S. classified him as learning disabled and
recommended a program of a Special Class and Modified
Instructional Services I with a staffing ratio of fifteen
students assigned to one teacher. Def. Resp. to Pltf. 56.1 Stmt.
¶ 22. The CSE also recommended small group counseling, language
and speech therapy, and participation in certain school
activities with non-disabled students. Id. ¶ 23.
On June 27, 2000 the CSE recommended placement at Public School
167, located at 220 East 76th Street in New York City. Id.
¶ 26. Defendant wrote to the CSE Placement Officer on July 5 and
July 24, 2000 to request information about the class profile for
M.S.'s recommended placement. Def. 56.1 ¶¶ 21, 22. The Placement Officer informed
W.S. on August 1, 2000 that the information she requested would
not be available until class registers were finalized the first
week in September. Id. ¶ 23. On August 14, 2000, Defendant
wrote to the CSE chairperson and stated that she believed she had
no choice but to enroll her son in Stephen Gaynor School because
the information she had requested was not available. Id. ¶ 25.
At the same time, she informed Plaintiff that she would be
requesting an impartial hearing. Id.
On August 17, 2000, the Plaintiff Board of Education informed
W.S. that because she requested an impartial hearing, the class
profile information would be provided to her counsel during the
course of the hearing. Id. ¶ 26. In her response on August 30,
2000, W.S. informed the CSE that the fact that she requested an
impartial hearing did not mean that she no longer wanted the
information about the recommended class. Id. ¶ 27. The Board of
Education did not respond to Defendant's August 30 letter. Id.
The impartial hearing regarding M.S.'s 2000-01 IEP was held on
April 30, 2001 and June 21, 2001. Id. ¶¶ 57, 58. M.S.'s teacher
from Stephen Gaynor School testified that M.S. had "intensive
difficulties with receptive and expressive language;" that
"abstract or inferential thinking is difficult for him;" and that
he had "difficulty with social pragmatic skills and reading
social skills." Id. ¶¶ 45-47. She testified that M.S. "was
socially immature and that he required a small restricted and
structured environment . . . to focus." Id. ¶ 43. At Stephen
Gaynor, M.S. was in a class of eight students and his teacher
testified that a larger group would "throw him off." Id. ¶¶ 39,
48. W.S. testified that M.S. was in the sixth grade during the
2000-01 school year and she could not understand why the IEP
recommended a seventh grade class for that year. Impartial
Hearing Tr. at 149, at Botta Decl. Ex. C. She also argued that
the CSE did not adequately take into account M.S.'s speech and
language needs. Id. at 166.
On August 23, 2001, the Impartial Hearing Officer made her
findings of fact. She found that while M.S. had had success in a
small class setting of eight students, "there is no basis on
which I could find that he could not meet with equal success in a
larger class of 15 students or that he is unable to function in a
larger school." IHO Aug. 23, 2001 Decision at 9, at Botta Decl.
Ex. D (hereinafter "IHO Decision"); see also id. at 10
(finding W.S. knowingly waived the presence of the parent member
at the CSE ...