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Jennifer D. v. New York City Dep't of Education

March 31, 2008


The opinion of the court was delivered by: John G. Koeltl, District Judge


The plaintiff, Jennifer D., brings this action on behalf of her son Travis D. ("Travis") pursuant to the Individuals with Disabilities in Education Act ("IDEA"), 20 U.S.C. §§ 1400 et seq., against the New York City Department of Education (the "DOE"). The plaintiff is appealing from an order of the State Review Officer ("SRO"), that declined to award her tuition reimbursement for her unilateral placement of Travis in the Legacy Program at Xaverian High School (the "Legacy Program") for the 2006-07 school year. The SRO's decision reversed the decision of an Impartial Hearing Officer ("IHO") who had granted reimbursement to the plaintiff. The parties have cross-moved for summary judgment. The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and 20 U.S.C. § 1415(i)(2)(A).


Under the IDEA, "states receiving federal funds are required to provide 'all children with disabilities' a 'free appropriate public education.'" Gagliardo v. Arlington Centr. Sch. Dist., 489 F.3d 105, 107 (2d Cir. 2007) [hereinafter Gagliardo II] (quoting 20 U.S.C. § 1412(a)(1)(A)); see also Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998). A free appropriate public education must provide "special education and related services tailored to meet the unique needs of a particular child, and be 'reasonably calculated to enable the child to receive educational benefits.'" Walczak, 142 F.3d at 122 (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982) (internal quotation marks and citation omitted)). Because the IDEA expresses a "strong preference for children with disabilities to be educated, 'to the maximum extent appropriate,' together with their non-disabled peers, special education and related services must be provided in the least restrictive setting consistent with a child's needs." Id. (internal citation omitted); see also Grim v. Rhinebeck Central Sch. Dist., 346 F.3d 377, 379 (2d. Cir. 2003).

These services are administered through a written individualized education program ("IEP"), which must be updated at least annually. Walczak, 142 F.3d at 122; see also 20 U.S.C. § 1414(d). In New York, the responsibility for developing appropriate IEPs has been assigned to local Committees on Special Education ('CSE'). Id. at 123. "In developing a particular child's IEP, a CSE is required to consider four factors: (1) academic achievement and learning characteristics, (2) social development, (3) physical development, and (4) managerial or behavioral needs." Gagliardo II, 489 F.3d at 107-08 (2d Cir. 2007) (citing N.Y. Comp. Codes R. & Regs. [hereinafter "N.Y.C.C.R.R."] tit. 8, § 200.1(ww)(3)(i)).

Parents in New York who wish to challenge the IEP as insufficient under the IDEA may request an impartial due process hearing before an IHO appointed by the local board of education. Id. (citing 20 U.S.C. § 1415(f) and N.Y. Educ. Law § 4404(1)).

A party may appeal the decision of the IHO to an SRO, and the SRO's decision may be challenged in either state or federal court. Id. (citing 20 U.S.C. § 1415(g), 1415(i)(2)(A) and N.Y. Educ. Law 4404(2)).


The administrative record and the additional evidence submitted by the plaintiff reveal the following factual and procedural background.*fn1

Travis D. ("Travis") has been classified as a student with a disability in need of special education services since he was in first grade. Travis was born three months premature and was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) at about four years of age.*fn2 He was later evaluated by the DOE and was reportedly found to have developmental delays.

Prior to the school year in question, Travis attended community schools, a special education school, and a state-approved non-public school. He was also home schooled for one semester. The record reflects that Travis experienced behavioral difficulties at all of these placements. For his sixth grade year Travis was placed in a special class in a community school, Hudde Junior High School, where he came in first in the science fair and his self-esteem improved. Travis attended a different community school, Roy H. Mann Junior High School ("IS 78"), for seventh and eighth grades, after the plaintiff asked the CSE to move Travis to a school where he could participate in gym and other school activities and not be educated in the basement. Travis was placed in a 12:1:1 class with twelve students, one teacher, and one paraprofessional.

Travis reportedly struggled academically and socially during his first year at IS 78.

In 2005-06, Travis was in eighth grade and was again placed in a special education class with a 12:1:1 staffing ratio at IS 78. At the time he was classified as "Emotionally Disturbed" and was provided speech therapy and counseling. He displayed poor behavior at the beginning of his eighth grade school year at IS 78. His special education teacher, Russell Markus, documented numerous behavioral incidents from September 9, 2005 through December 1, 2005, including disrupting class, the use of foul and other inappropriate language, and other inappropriate behavior. (Def.'s Ex. 10.)*fn3 In November 2005, Travis was assigned a 1:1 behavior paraprofessional.

On or about December 1, 2005, just a few weeks after the assignment of the paraprofessional, Mr. Markus submitted a Type 3 Recommendation, which is a referral to the School Based Support Team to reevaluate Travis's IEP.*fn4 The Type 3 Recommendation stated that Travis's behavior had deteriorated to the point where it was interfering with instruction and that Travis lacked respect for authority. (Def.'s Ex. 9.) On Travis's first quarter report card, his conduct was rated as needing improvement in English, Social Studies, and Math, and as unsatisfactory in Science (Pl.'s Ex. F.). The comments indicated that Travis did not show self-control, did not stay on task, and included a request for a parent-teacher conference. (Hr'g Tr. 111.)

Travis's behavior improved notably during the second quarter of the school year following the assignment of the paraprofessional.*fn5 In particular, Mr. Markus noted a lessening in impulsivity and outbursts. This improvement in behavior is reflected in Travis's second quarter report card, issued in February 2006, where his conduct was rated as satisfactory in English, Social Studies, and Science, and needing improvement in Math. (Pl.'s Ex. F). Furthermore, while the comments section of the report card indicates that Travis remained "[f]ar below standards" academically in English and Math, other comments reflect that he was "[p]repared for class" in English and was "[a]pproaching standards" with satisfactory effort in Social Studies. (Id.) Travis's improved conduct is also reflected in letters submitted by the plaintiff from Mr. Markus, Edward Isaacs, the school psychologist at IS 78, and Aladino Lopez, the paraprofessional assigned to Travis in November 2005. (Pl.'s Ex. G). Mr. Markus reported "a definite improvement in behavior" and the paraprofessional reported that Travis's "behavior is improving dramatically." (Id.)

In connection with the reevaluation of Travis's IEP, Mr. Isaacs performed a social history and psychoeducational evaluation on January 12, 2006. (Def.'s Exs. 7, 8.) The resulting report described Travis as highly impulsive, socially immature, and extremely disruptive in class, and noted that he had difficulty obeying school rules and authority figures. (Def.'s Ex. 7 at 1, Ex. 8 at 1-4.) Mr. Isaac's found Travis to be generally delayed academically, and noted that Travis did very little class work or homework, and that his cognitive skills were in the Low Average Range (Def.'s Ex. 8 at 2, 4.)

The CSE convened on January 31, 2006 to review Travis's IEP. The CSE team was duly constituted and was attended by the plaintiff, a representative of the school district, a general education teacher, a special education teacher, a school psychologist, a parent member, and a counselor. At that meeting, a new IEP was developed for Travis (the "IEP"). (Def.'s Ex. 6.) The IEP changed Travis's classification from "Emotionally Disturbed" to "Other Health Impairment," and recommended that Travis be placed in a 12:1:1 special class in a specialized school attended only by disabled students (a "District 75 school"). (Id. at 2.) It also included related service recommendations for once weekly individual counseling, once weekly group counseling, twice weekly group speech language therapy, and an individual behavior management paraprofessional for 100 minutes per day. (Id. at 10.) The IEP indicated that Travis's individual speech therapy and 1:1 paraprofessional were to be terminated. (Id. at 2.) The IEP noted that Travis's academics were generally delayed, that his behavior seriously interfered with classroom instruction and required additional adult support, and recommended a small class environment to address his social, emotional, and behavioral problems. (Id. at 3-4.) The IEP also included annual goals and short-term objectives, including that Travis would control his impulsivity and develop self control. (Id. at 6.)

In the winter of 2005, Travis expressed interest in attending Xaverian, which he had learned about from teammates on his ice hockey team. (Hr'g Tr. 46.) After learning that Xaverian had a special education program, the plaintiff met with Dr. Carol Trasborg, Xaverian's Director of Admissions for Special Education, about the Ryken Education Center at Xaverian (the "Ryken Center"). The Ryken Center is a 12:1:1 program designed for students with multiple special education needs as a result of, among other things, speech impairments, Asberger's Syndrome, processing issues, or learning disabilities.

Dr. Trasborg said that she would consider admitting Travis to the Ryken Center if his grades and conduct improved. In February of 2006, the plaintiff met with Dorene Willis, a secretary for the Region 6 CSE whose work includes assisting with nonpublic school referrals, about her desire to place Travis in Ryken. Ms. Willis consulted with her superiors about the plaintiff's financial situation and subsequently the district issued a "Nickerson letter" to the plaintiff to cover the funding of a private school.*fn6 (Def.'s Ex. 3.) Ms. Willis also contacted the Ryken Center to confirm its interest in accepting Travis. There is some dispute in the record as to whether ...

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