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Bettinger v. New York City Board of Education

November 20, 2007

NAVA BETTINGER AND DANIEL BETTINGER, COLLECTIVELY AND INDIVIDUALLY ON BEHALF OF ELAN BETTINGER, A MINOR, PLAINTIFFS,
v.
NEW YORK CITY BOARD OF EDUCATION, D.B.A. NEW YORK CITY DEPARTMENT OF EDUCATION, AND JOEL KLEIN, CHANCELLOR OF THE NEW YORK CITY SCHOOLS, DEFENDANTS.



The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge

OPINION & ORDER

Plaintiffs Nava and Daniel Bettinger ("the parents"), on behalf of their son Elan, (collectively "Plaintiffs" or "Bettingers") and Defendants New York City Board of Education, doing business as New York City Department of Education, and Joel Klein, Chancellor of New York City Schools, (collectively "Defendants" or "the City") cross-move for summary judgment on an administrative decision providing partial private school tuition reimbursement to the Plaintiffs under the Individuals with Disabilities Education Act ("IDEA"). For the reasons discussed below, Plaintiffs' motion is denied and Defendants' motion is granted.

SUMMARY OF FACTS*fn1

At the time of the events at issue in this lawsuit, Elan Bettinger was a five-year-old emotionally disturbed student who exhibited aggressive tendencies and had been diagnosed with a number of personality and learning disorders.*fn2 Despite Elan's emotional and developmental disabilities, testing revealed that he had a performance Intelligence Quotient ("IQ") of 140 and a verbal IQ of 101, yielding a full scale IQ of 122, placing him in the "superior range" of cognitive abilities.*fn3 Def. Ex. F at 3-1. Due to Elan's special needs and his difficulties in his pre-school class, Elan's parents anticipated that he might require special attention in kindergarten, attention that might not be possible in a regular public school. Hr. Tr. at 92. Indeed, Elan was already in danger of being expelled from his pre-school class mid-year due to his behavior. See id. at 98, 102. As such, in January 2005, Elan's parents applied for him to attend the West End Day School (hereinafter "West End"), a private school on the Upper West Side of Manhattan. See id.

The timing of the Bettingers' application to West End in January 2005 was designed so that Elan would have an appropriate placement for kindergarten in the fall, but also so that if he were expelled from his regular pre-school program, he could continue his 2004-2005 pre-school school year there. See id. Indeed, the Director of Admissions at West End testified that:

[W]e [at West End] never were sure whether we were going to admit him at the middle of [his pre-school] year or not because it wasn't clear whether [Elan] was going to be asked to leave his other school. But we did accept him for [the regular academic year program starting in] September.

Id. at 102.

She further explained that administrators at his pre-school school "were going to ask him to leave in mid-year. And they only reconsidered because . . . the family had a shadow for him." Id. at 98. The presence of the "shadow,"*fn4 and limiting his attendance to a half-day (as opposed to a full day) of school allowed him to stay at his regular pre-school program for the remainder of the 2004-2005 school year. Ultimately, therefore, his parents only sought admission to West End commencing in July, 2005, after his pre-school year ended. Id.

In February, 2005, Elan was formally accepted at West End for both the "Summer Learning Program," a six-week program which ran from July 1, 2005, until August 11, 2005, and the academic year program, which began in September and ran during the course of the traditional school year. Id. at 94-95. While the two programs are separate, for students with special needs, the fall placement is contingent on successful completion of the summer program.*fn5

After securing Elan's admission to West End on February 14, 2005, Elan's parents paid the school two deposits on two separate dates to secure his place in both the 2005 summer program and the 2005-2006 regular academic year term, respectively.*fn6

Tuition for the 2005 Summer Learning Program was $10,500 and tuition for the 2005-2006 academic year was $30,500.00.*fn7 In March, 2005, after Elan had already been admitted to both the summer program and the regular school year term at West End, and deposits made, a psychiatrist found that the structure of year-round school attendance would benefit Elan, and recommended that he attend a 12-month program. Pl. Ex. E at 3.

In Spring, 2005, Elan's parents requested that the Department of Education's Committee on Special Education ("CSE") develop a suitable educational plan for Elan pursuant to IDEA and New York law. Elan's parents cooperated with the CSE and an "Individualized Education Program" ("IEP") designed for him was issued on June 9, 2005. The IEP called for Elan to be placed in a 12-month, small-group, non-public school program, but did not specifically recommend a non-public school for Elan to attend.*fn8 Pursuant to their placement procedure, the CSE contacted the Central Base Support Team ("CBST") which then sought an appropriate non-public school for Elan which would be paid for entirely by public funds. On July 1, 2005, three weeks after the IEP was developed, but before the CBST had contacted them regarding a non-public school placement, Elan began his summer program at the West End Day School.

During the summer months, Elan's parents were contacted by at least two CBST-referred non-public schools.*fn9 Arg. Tr. at 5. One of those schools was the Lorge School, located in the Chelsea section of Manhattan. The Lorge School invited Elan and his parents to visit and interview at the school to determine if Lorge was an appropriate placement given his special needs. Arg. Tr. at 5, Hr. Tr. at 71. Elan's parents refused to interview at the school, and claimed that taking Elan out of his West End summer school would traumatize him.*fn10 Since there was no interview, Elan could not be admitted to the Lorge School, and, in accordance with school policy, Lorge School administrators sent a letter to the CBST informing them that the Bettingers were not interested in placing Elan at their school.*fn11

Since the parents chose not to pursue the CBST's non-public school options, no publicly-funded, special-needs schools were selected to meet the requirements of his IEP. By the fall of 2005, Elan had two options: a regular public school kindergarten, which the IEP recognized as inappropriate, and the West End Day School, which his parents had selected for him in January 2005. The parents placed him in the West End Day School's program and sought reimbursement pursuant to IDEA for the cost of this private school tuition.

In accordance with IDEA requirements, the parents requested a hearing before an impartial hearing officer to adjudicate their request for reimbursement of the cost of both West End's summer program and the regular academic year program. This request was made by letter dated August 15, 2005, four days after the summer school program ended and three weeks before the start of the 2005-2006 academic school year.*fn12 The hearing, which took place on October 28 and December 7, 2005, resulted in a denial of tuition reimbursement for the parents. The hearing officer found that:

[I]t [was] clear from the evidence that, as early as January 2005, it was the parents' intention to enroll the child in the West End Day School, and it appeared that the parents had no interest in exploring the options offered by [the Department of Education]. I conclude that the parents did not cooperate with [the Department of Education] and that their claim is not supported ...


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