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July 8, 2005.

Board of Education of the City School District of the City of New York, Plaintiff,
Richard P. Mills, as Commissioner of the New York State Department of Education, and W.S., on behalf of her minor child M.S., Defendants.

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.

I. Background


  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).

  B.M.S.'s 2000-2001 IEP

  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 time.

  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. ¶ 28.

  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 ...

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