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Board of Education of the City School District of the City of New York v. R.R. ex rel T.R.

May 24, 2006

BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, PLAINTIFF,
v.
R.R., ON BEHALF OF HER MINOR CHILD, T.R., DEFENDANT.



The opinion of the court was delivered by: Deborah A. Batts, United States District Judge.

MEMORANDUM AND ORDER

The Board of Education of the City School District of the City of New York ("Board"), who is the Plaintiff in this case, seeks the reversal of a State Review Officer's decision in favor of Defendant R.R. R.R. had challenged the Individualized Educational Program ("IEP") that the Board had formulated for her son, T.R. The State Review Officer ("SRO") found that T.R.'s IEP was procedurally defective, and accordingly required the Board to reimburse R.R. for T.R.'s private school tuition.

Now before the Court are Plaintiff's and Defendant's cross motions for summary judgment. Plaintiff moves the Court to find (1) that T.R.'s IEP was not beset by procedural defects; (2) that the IEP-recommended placement was reasonably calculated to foster educational benefits for T.R.; and (3) that tuition reimbursement is improper. Defendant moves this Court to find (1) that R.R.'s IEP conference contained procedural defects; (2) that T.R.'s recommended placement was substantively inappropriate; and (3) that reimbursement for T.R.'s private school tuition is warranted.

For the reasons contained herein, the Board's Motion for Summary Judgment is GRANTED, and R.R.'s Motion for Summary Judgment is DENIED.

BACKGROUND

The Individuals with Disabilities in Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., allots federal funds for states that offer a "free and appropriate public education" to children with disabilities. 20 U.S.C. § 1412(a)(1)(A). The state must establish for each child an Individualized Educational Program ("IEP") which is "reasonably calculated to enable the child to receive educational benefits." Board of Educ. v. Rowley, 458 U.S. 176, 207, 102 S. Ct. 3034 (1982). If the school district fails to supply a free and appropriate education in a timely manner, the child's parent may seek tuition reimbursement for the child's placement in a private school. 20 U.S.C. § 1412(a)(10)(C)(ii).

New York receives federal funds under this statute, and charges Committees on Special Education ("CSE"s) with the responsibility of formulating the IEPs. The CSEs are established by local boards of education. N.Y. Educ. L. § 4402(1)(b)(1); 8 N.Y.C.R.R. 200.3(a). Each CSE is comprised of, among other people, the child's parent or guardian, the child's regular education teacher, the child's special education teacher, and a school psychologist. 8 N.Y.C.R.R. 200.3(a)(1). Importantly, the CSE's membership also shall include "an additional parent member of a student with a disability residing in the school district or a neighboring school district, provided such parent is not a required member if the parents of the student request that the additional parent member not participate in the meeting . . . ."

8 N.Y.C.R.R. 200.3(a)(i)(viii).

After the CSE has formulated an IEP, the parent still may feel it inadequately addresses her or his child's needs. "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. § 4402(1)." Bd. of Educ. v. Mills, 2005 WL 1618765 at *1 (S.D.N.Y. Jul. 8, 2005), quoting Grim v. Rhinebeck Central Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003). "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 that (2) the IEP was '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 Rowley, 458 U.S. at 206-07). Appeal of the IHO's decision is available before a State Review Officer ("SRO"), 20 U.S.C. § 1415(g), and then before a state or federal judiciary, 20 U.S.C. § 1415(i)(2)(A).

FACTS

Defendant R.R. and her child, T.R., reside in the New York City School District. (Def.'s Statement of Undisputed Facts ("Def.'s Statement") at ¶ 1.) T.R. is a minor child with a disability (Id. at ¶¶ 3-4), and therefore is entitled to an IEP (Id. at ¶ 3).

In 1999, R.R. placed T.R. at the Mary McDowell Center ("Mary McDowell"), a private special education school. (Compl. at ¶ 7.) R.R. placed T.R. there even though T.R.'s IEP had recommended an alternate public placement. (In re Application of a Child with a Disability, No. 01-096, Oct. 1, 2002 ("Application") in Baum Dec., Ex. A at 1-2.) A few months after T.R. matriculated at Mary McDowell, a CSE convened to determine whether the State could design another IEP -- one that would be satisfactory both to the Board and to his mother. (Compl. at ¶ 8.)

The CSE met on April 14, 2000 to coordinate T.R.'s new IEP. (Baum Dec. in Support of Def.'s Mot. ("Baum Dec."), Ex. B, at 4.) Just before the CSE meeting commenced, R.R. waived in a handwritten note her right to a parent member on the CSE. (Baum Dec., Ex. B, at 55.) R.R. testified before the IHO that the start of the CSE meeting was "chaotic because [there was] no parent rep [sic]. [The CSE participants] weren't sure if the parent member was coming or not. I had to sign a waiver." (Transcript for In the Matter of T.R., Case No. 41841, in Baum Dec., Ex. C ("Transcript"), at 314.)

No one contacted T.R.'s private therapist during the CSE meeting, even though the therapist's contact information appeared on the front of the IEP. (Transcript at 193.) At no time after the commencement of the CSE meeting did R.R. request that the private therapist be contacted. (Id. at 338.) R.R. also had already advised the therapist not to respond to the CSE's request for input. (Id. at 210.)

The CSE ultimately formulated an IEP recommending that T.R. be placed not at Mary McDowell, but at a public school in New York City. R.R. received a Final Notice of Recommendation dated July 14, 2000, but nonetheless opted to re-enroll her son in Mary McDowell for another year. (Application at 2.)

R.R. subsequently commenced a proceeding before an Impartial Hearing Officer ("IHO") to challenge the IEP, and to seek tuition reimbursement for the 2000-2001 school year (Id. at 2.) For the most part, testimony before the IHO indicated that the IEP satisfactorily designated a free and appropriate public education for T.R. T.R.'s teacher at Mary McDowell worried that large class sizes would render him less able to manage being with his non-disabled peers. (See Transcript at 274-75.) The head of Mary McDowell further testified that placing T.R. in the IEP-recommended public school would have been "inappropriate" because T.R.'s "constant comparisons of himself to other children in general education would have added to his insecurity." (Transcript at 251-56.)

Otherwise, an abundant amount of evidence before the IHO suggested that the IEP was appropriate. The Board's psychologist, the Board's Supervisor of Special Education, the Board's social worker, as well as a special education teacher at the IEP-recommended school -- each of whom were members of the CSE -- all attested to the appropriateness of T.R.'s IEP-recommended placement. That placement promised small group instruction under the guidance of a special education teacher, a general education teacher, and a paraprofessional. (Transcript at 69-72, 85.) His classes there would have integrated regular-education with special-education students, but would have been small in size. ...


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