United States District Court, S.D. New York
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
OPINION & ORDER
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).
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
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 meeting). Accordingly, the Impartial Hearing Officer
denied W.S.'s request for tuition reimbursement for the 2000-01
school year. Id. at 10.
Defendant appealed that decision to a State Review Officer.
Def. 56.1 ¶ 60. The State Review Officer held that the 2000-01
IEP was a nullity because it was created by an improperly formed
CSE. State Review Officer Sept. 2, 2002 Decision at 4-5, at Botta
Decl. Ex. A (hereinafter "SRO Decision"). The Officer found there
was a question as to "whether the participation of the parent
member was a right that a student's parent may waive, or whether
the parent member's participation was mandatory unless the parent
affirmatively requested that the mandatory parent member not
participate." Id. at 4. In light of his determination, the
State Review Officer did not find it necessary to address the
other issue raised by W.S. the inappropriateness of the program
recommended by Plaintiff. The State Review Officer did find that
the Stephen Gaynor School was an appropriate placement for M.S.
and that equitable considerations supported reimbursing Defendant for tuition
expenses for the 2000-01 school year. Id. at 6. The Board
appeals that decision here.
A. Standard for IEP Review
The IDEA "expresses a strong preference for children with
disabilities to be educated, `to the maximum extent appropriate,'
together with their non-disabled peers." Walczak v. Florida
Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998) (quoting
20 U.S.C. § 1412(a)(5)(A)). A child should be segregated "only
`when the nature or severity' of a child's disability is such
`that education in regular classes with the use of supplementary
aids and service cannot be achieved satisfactorily.'" Id.
(quoting 20 U.S.C. § 1412(a)(5)(A)). Parents of a disabled child
who previously received special education from a public school
district may seek tuition reimbursement for a unilateral
placement in a private school when the school district fails to
offer their child a free and appropriate public education. See
20 U.S.C. § 1412(a)(10)(C)(ii); Florence County Sch. Dist. Four
v. Carter, 510 U.S. 7, 13 (1993).
In reviewing a challenged IEP, this Court must determine
whether the state complied with the procedural requirements of
IDEA and whether the challenged IEP was "reasonably calculated to
enable the child to receive educational benefits." Walczak,
142 F.3d at 129; see also Rowley, 458 U.S. at 206-07; Grim,
346 F.3d at 381. This Court is to base its decision on the
"`preponderance of the evidence' taking into account not only the
record from the administrative proceedings, but also any further
evidence presented by . . . the parties." Grim, 346 F.3d at 380
(quoting 20 U.S.C. § 1415(i)(2)(B)). The Supreme Court and Second
Circuit have instructed that the IDEA strictly limits "judicial
review of state administrative decisions." Id. at 381 (citing
Rowley, 458 U.S. at 204-08; Walczak, 142 F.3d at 129). "While
federal courts do not simply rubber stamp administrative
decisions, they are expected to give `due weight' to those
proceedings, mindful that the judiciary generally lacks the
specialized knowledge and experience necessary to resolve
`persistent and difficult questions of educational policy.'"
Walczak, 142 F.3d at 129 (quoting Bd. of Educ. v. Rowley,
458 U.S. at 205). When it comes to matters of statutory
interpretation, however, "state administrative officials [are] in
no better position than the district court to make conclusions."
Bd. of Educ. of the City Sch. Dist. of the City of New York v.
Tom F., No. 01 Civ. 6845 (GBD), 2005 WL 22866, at *2 (S.D.N.Y.
Jan. 4, 2005) (holding, after de novo review, that IDEA
precludes tuition reimbursement where student had never received
special education from public agency); see also Carmel Cent.
Sch. Dist. v. V.P., No. 04 Civ. 3320 (CM), 2005 WL 1469472, at
*4 (S.D.N.Y. June 9, 2005) ("[A]n SRO's determination of a pure
question of law is not subject to deference.").
B. The Board of Education Complied with IDEA Procedural
The State Review Officer found that the 2000-01 IEP was
procedurally deficient. He held that the CSE comprised for M.S.'s
2000-01 IEP was a "nullity" because it did not include a parent
member. SRO Decision at 3, 5. Based on the language of the New
York statute, the Review Officer found that the "parent member's
participation is mandatory unless the student's parent
affirmatively requests that the additional parent member not
participate." Id. at 4. Because the CSE did not include a
parent member, in the Review Officer's view, the Board of Education "did not meet its burden of establishing that it had
offered to provide an appropriate educational placement . . . for
the 2000-01 school year." Id. at 5 (internal citation omitted).
This Court's "procedural inquiry is no mere formality."
Walczak, 142 F.3d at 129. The IDEA emphasizes "full
participation of concerned parties throughout the development of
the IEP." Id. (internal citations omitted). Full participation,
along with "federal approval of state and local plans, reflects a
`conviction that adequate compliance with the procedures
prescribed would in most cases assure much if not all of what
Congress wished in the way of substantive content in an IEP.'"
Id. (quoting Rowley, 458 U.S. at 206). The IDEA, however,
does not require the participation of a parent member on a
child's IEP team. See 34 C.F.R. § 300.344 (stating the IEP team
shall include the child's parents; a special education teacher; a
regular education teacher; a representative of the Board; an
individual, who may be a member of the team in another capacity,
who can interpret the implications of evaluation results; and at
the discretion of the parent or agency, other individuals who
have knowledge or expertise regarding the child). New York
includes the parent member in the CSE membership, but provide
that "such parent is not a required member if the parents of the
student request that the additional parent member not participate
in the meeting." N.Y. Educ. Law § 4402(b)(1)(a) (McKinney 2001);
see also 8 N.Y.C.R.R. § 200.3(a)(1)(viii). New York Education
Law was amended on July 20, 1999 to add the language permitting a
disabled student's parent to waive the participation of a parent
member in the CSE.
The State Review Officer acknowledged that the "hearing officer
found that [W.S] had knowingly waived the presence of the parent
member at the meeting" and noted he "would be reluctant to
substitute [his] own judgment for hers if it were solely a
question of witness credibility." SRO Decision at 4. Yet, in
turning the issue from one of witness credibility into one of
statutory construction, the State Review Officer relied on
decisions concerning CSE membership prior to the July 20, 1999
amendment permitting parents to waive the participation of a
parent member. Id. (citing Application of a Child with a
Disability, Appeal No. 99-27, at Baum Decl. Ex. F (concerning
CSE for 1996-97 school year) and Application of a Child with a
Disability, Appeal No. 97-1, at Baum Decl. Ex. E (noting that in
1997 section 4402(1)(b)(1) of the Education Law authorized
parents to waive the presence of the school physician, but not
the parent member).
The IDEA does not require the presence of a parent member and
the parent member's absence cannot, therefore, be considered a
procedural defect under the federal statute. Further, there is no
question that W.S. waived the presence of the parent member prior
to the commencement of the CSE's review on May 31. See Botta
Decl. Ex. B at 61 (W.S.'s handwritten note acknowledging that she
understood role of parent member and agreed to waive his
participation in May 31, 2000 CSE). Further, unlike at the time
of the two decisions cited by the State Review Officer, New York
law provides that the parent of a disabled student with the
opportunity to waive a parent member's participation in the CSE.
See N.Y. Educ. Law § 4402(b)(1)(a) (McKinney 2001); see also
8 N.Y.C.R.R. § 200.3(a)(1)(viii). Further, there is no indication
that the parent member's absence resulted in a loss of
educational opportunity for M.S. or infringed on W.S.'s ability
to participate in the CSE. The Court's conclusion on this point
is buttressed by W.S.'s own admission that the fact that a parent
member was not present at the CSE review on May 31, 2000 is "not
the dispositive issue in this case." Impartial Hearing Tr. at
166, at Botta Decl. Ex. C. Accordingly, the Court finds there was
no procedural defect in the CSE and upholds the impartial hearing
officer's finding that W.S. knowingly and effectively waived the
presence of a parent member.
C. The IEP was Appropriate
The second step in this Court's review of the IEP is to
determine if it was "reasonably calculated to enable [M.S.] to
receive educational benefits." Walczak, 142 F.3d at 129; see
also Rowley, 458 U.S. at 206-07. For the Court to conduct an
"`independent' review of the sufficiency of an IEP . . . that
does not `impermissibly meddl[e] in state educational
methodology,' it must examine the record for `any objective
evidence indicating whether the child is likely to make progress
or regress under the proposed plan.'" Grim, 346 F.3d at 383
(quoting Walczak, 142 F.3d at 130)). W.S. contends the IEP was
inappropriate because it assigned him to a class of fifteen
students with skills ranging three grade levels. Additionally,
because the specific class register was unavailable before
September, W.S. could not compare the needs of M.S. with the
needs of the other children in the classroom. The Impartial
Hearing Officer reviewing the 2000-2001 IEP for M.S. concluded
that "the Board of Education has acknowledged his areas of
weakness and has offered a program that I find is appropriate to
address his academic deficits." IHO Decision at 9. The State
Review Officer did not address the content of the IEP.
"IEPs are subject to numerous procedural and substantive
requirements, . . . but they are not required to `furnish . . .
every special service necessary to maximize each handicapped
child's potential.'" Grim, 346 F.3d at 379 (internal citations
omitted) (quoting Rowley, 458 U.S. at 199). Rather, IEPs are to
"provide a `basic floor of opportunity,' consisting of services
that are `individually designed to provide educational benefit'
to a child with a disability." Id. (quoting Rowley,
458 U.S. at 201). "An appropriate public education under IDEA is one that
is `likely to produce progress, not regression.'" Walczak,
142 F.3d at 130 (quoting Cypress-Fairbanks Indep. Sch. Dist. v.
Michael F., 118 F.3d 245, 248 (5th Cir. 1997), cert.
denied, 522 U.S. 1047 (1998)).
The Court here gives deference to the Impartial Hearing
Officer, the only education administrator to review the
sufficiency of the IEP. Here, the Court's inquiry is "necessarily
prospective in nature," and cannot be guided by M.S.'s progress
at Stephen Gaynor School. See J.R. v. Bd. of Educ. of the City
of Rye Sch. Dist., 345 F. Supp. 2d at 395. Additionally, because
M.S. was never enrolled in one of Plaintiff's public schools, in
determining whether M.S. would have made progress under the IEP,
the Court is particularly hesitant to substitute its own judgment
for that of the Board. See Walczak, 142 F.3d at 130 ("A
review of objective evidence is easiest, of course, when a
disabled child is in a mainstream class."); see also Grim,
346 F.3d at 381 (cautioning judiciary should give due weight to
specialized knowledge and necessary experience of a public school
The Court agrees with the Impartial Hearing Officer's
assessment that the challenged IEP was reasonable calculated to
provide educational benefits to M.S. The IDEA requires that disabled children be educated in the least restrictive setting as
possible. See 20 U.S.C. § 1412(5). The IEP attempted to do that
by placing M.S. in a small classroom environment of fifteen
students and also giving the child the opportunity to socialize
with the entire school population during lunchtime and gym class.
Defendant objects to the fact that the IEP would place her child
in a seventh grade class, but the recommended Modified
Instructional Services I program is for students in grades six
through eight. That there were students comprising three grade
levels in the recommended placement does not make the IEA
inadequate. Walczak, 142 F.3d at 133 (approving IEP that placed
student in a classroom with different intellectual, social, and
behavioral needs). The IEP also acknowledged and addressed M.S.'s
difficulties with language and socialization and provided twice
weekly smaller counseling sessions in those two areas. While the
Defendant testified to her son's progress at Stephen Gaynor
during the challenged school year, "[t]he inadequacy of an IEP is
not established . . . simply because parents show that a child
makes greater progress in a single area in a different program."
Walczak, 142 F.3d at 133. The challenged IEP specifically
addressed M.S.'s problems and provided opportunity for
educational benefit and progress in the least restrictive
environment. While the IEP may not have included all of
Defendant's desires for her child, "neither [a court's] sympathy,
nor more importantly the IDEA, entitles [a disabled student] to
the best education that money can buy, at the expenditure of the
[Board's] finite financial resources." J.R. v. Bd. of Educ. of
the City of Rye Sch. District, 345 F. Supp. 2d 386, 399
(S.D.N.Y. 2004) (quoting Lunceford v. D.C. Bd. of Educ.,
745 F.2d 1577, 1583 (D.C. Cir. 1984) (Ruth Bader Ginsburg, J.)). The
Court grants Plaintiff's motion for summary judgment.
For the reasons explained above, the Board of Education's
motion for summary judgment is granted, and Defendant W.S.'s
motion for summary judgment is denied. The State Review Officer's
award of tuition reimbursement to W.S. is reversed. The Clerk of
the Court is asked to close the case.
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