The opinion of the court was delivered by: Cedarbaum, J.
Rachel and Dan Eschenasy, plaintiffs as parents of Ann Eschenasy, move for summary judgment that Ann should have been classified as a student with an emotional disturbance as defined in Individuals with Disabilities Education Act (IDEA) and that they should receive tuition reimbursement for John Dewey Academy and the Elan School. The New York City Department of Education ("NYC DOE") and the City of New York, defendants, also move for summary judgment on the grounds that the State Review Officer correctly concluded that Ann was not emotionally disturbed and, therefore, properly denied plaintiffs' request for tuition reimbursement. Defendants also move to dismiss the City of New York for failure to state a claim against it. For the reasons that follow, plaintiffs' motion for summary judgment that Ann is a student with a disability who, by reason thereof, needs special education is granted. Plaintiffs' motion for tuition reimbursement is granted for the Elan School and denied for John Dewey Academy. Accordingly, plaintiffs' motion for summary judgment is granted in part and denied in part. Defendants' motion for summary judgment is granted in part and denied in part. The motion to dismiss the City of New York is granted.
I. Ann's Educational History
Ann Eschenasy was a nineteen-year-old girl attending the Elan School when the motions for summary judgment were filed. Her educational history, based on undisputed factual findings and testimony in the administrative hearings below, began with her enrollment in P.S. 199 for kindergarten. Ann had no reported problems in kindergarten but her parents moved her to private school the following year because class sizes were too large.
From first to eighth grade, Ann attended Park East Day School, where she began exhibiting social and academic problems. Ann developed a pattern of stealing at the age of eight. She also dressed inappropriately and engaged in sexual misconduct by touching boys. In addition, because Ann had difficulty learning to read and struggled to complete her homework, her parents arranged for extra tutoring.
Ann began high school at the Heschel Day School. During her time at Heschel, Ann exhibited serious behavioral problems. She stole, broke school rules, obtained a tattoo and body piercings, made inappropriate friends on the internet, began using drugs, and ran away from home. Furthermore, she failed a number of her classes.
Also while she was at Heschel, Ann began cutting herself and purging. Ann's pediatrician started her on Effexor, a mood stabilizing drug. Her pediatrician then referred her to Dr. Markus Kraebber, a child and adolescent psychiatrist. Dr. Kraebber diagnosed Ann with a mood disorder and cluster B (histrionic, borderline and antisocial) traits. He recommended that Ann continue to take the mood stabilizing drug and that she be placed in a structured educational environment to address her needs for positive feedback, containment and consistent limits. Ann was asked to leave Heschel after the 10th grade because of stealing. After her expulsion, Ann was caught forging $3,000 worth of checks. Shortly thereafter, she overdosed on Effexor and was hospitalized. Following hospitalization, Ann began dialectical behavioral therapy (DBT) with Susan Cappi. Ann's participation in DBT was described as poor. Ann came to multiple DBT group sessions high on marijuana and discussed securing cocaine for another group member.
Ann's next school was the Beekman School, where she spent the first semester of her eleventh grade year. At Beekman, Ann used drugs heavily and repeatedly cut classes. She was suspended several times for refusal to attend class and was finally expelled in December of 2004 because of absenteeism. Ann also ran away from home for the first time in December of 2004. For the spring semester of her eleventh grade year, Ann was sent to the Smith School. At Smith, Ann continued to use drugs and misbehave. After two months, Ann was suspended for theft and use of a classmate's credit card. Ann finished the semester at home with a tutor and was asked not to return to Smith. Ann ran away from home for the second time in March of 2005. Around this time, Ann's DBT therapist, Susan Cappi, recommended that Ann be placed in a therapeutic boarding school. In order to facilitate boarding school admissions, plaintiffs obtained a neuropsychological evaluation to assess Ann's intellectual, cognitive and emotional function. In May and June of 2005, a private evaluation was conducted by a neuropsychologist, Dr. Barron, who reported that Ann's intellectual ability was in the average range and her academic achievement was on or above the expected level. Dr. Barron also noted that Ann experienced considerable personal stress stemming from lack of self esteem and the conflict engendered by her persistent need for nurturing and affection and her impulsive, willful and obstinate behavior.
She found that Ann has a mild, but measurable anomia, a word- finding problem. She diagnosed Ann with conduct disorder, trichotillomania (pulling out hair), borderline personality features and expressive language disorder with mild amnestic features.
By letter dated June 23, 2005, Rachel Eschenasy requested an evaluation of Ann by the NYC DOE's Committee on Special Education ("CSE"). Despite their request for a CSE evaluation, plaintiffs unilaterally enrolled Ann at the John Dewey Academy ("Dewey"), a therapeutic boarding school in Great Barrington, Massachusetts, on August 17, 2005, before the CSE had convened. Ann attended Dewey for several months but was confronted by the headmaster and students about lying and breaking school rules in December of 2005. Ann then entered a wilderness crisis intervention program, anticipating that she would be allowed to return to Dewey once she completed the program. Ann was allowed to return, but was asked to leave Dewey shortly thereafter because the staff believed that Ann required a more restrictive and structured program. Plaintiffs then enrolled her in the Elan School, another boarding school recommended by the Dewey staff as a more appropriate placement for Ann. Ann was attending the Elan School when summary judgment motions were filed.
II. Plaintiffs' Request for a CSE
Ann's case before the DOE proceeded simultaneously with her enrollment at Dewey and Elan. Plaintiff Rachel Eschenasy first requested an evaluation by the NYC DOE's CSE on June 23, 2005. On July 18, 2005, she advised the CSE chairman that Ann was scheduled to go on vacation on July 28, 2005, but would be available for an evaluation prior to that date. Then, on August 17, 2005, without first notifying the CSE, plaintiffs unilaterally enrolled Ann at Dewey.
Rachel Eschenasy advised the CSE that Ann had been enrolled in Dewey on August 26, 2005. On September 23, 2005, she provided the CSE with consent to evaluate Ann. On this same day, a social history was conducted and plaintiffs provided the social worker with a copy of the May/June 2005 neuropsychological evaluation completed by Dr. Barron.
Between September and December of 2005, a series of letters were exchanged between plaintiffs and the DOE. The DOE initially requested that Ann be made available for an evaluation. Plaintiffs responded that she was too fragile to travel back to New York from Dewey in Massachusetts, but indicated that they would provide the CSE with reports from Ann's psychiatrist and teachers. Subsequently, the DOE sent several follow up letters requesting these reports.
On December 6, 2005, Rachel Eschenasy sent a letter to the DOE through her attorney requesting that an impartial hearing be held and that the impartial hearing officer order the CSE to convene and develop an individualized education program for Ann. The letter stated that because no CSE meeting had been scheduled for Ann, plaintiffs had no choice but to keep Ann at Dewey. The letter also requested reimbursement for costs and fees. On December 12, 2005, the regional CSE chairperson sent a letter to plaintiffs, stating that because the parents had failed to arrange for Ann to be evaluated and had failed to provide the requested documentation, Ann's case was being closed. Rachel Eschenasy responded on December 27, 2005, stating that she had sent the reports to the district three times, but was enclosing them again. On January 31, 2006, the CSE was convened for an initial review.
III. The Administrative Determinations Below
Rachel Eschenasy, a district representative, a general education teacher, a school psychologist, a special education teacher, a social worker, a parent member, an educational advocate and the founder of Dewey attended the CSE meeting. At the meeting, plaintiffs informed the CSE that Ann had transferred to Elan the day before. The DOE was unaware of the transfer and therefore no one from Elan participated. The CSE determined that Ann was not emotionally disturbed and therefore not disabled under the IDEA.
Plaintiffs filed a complaint with the DOE appealing this determination. An impartial hearing was commenced on May 11, 2006, and concluded on May 19, 2006, after four days of testimony. The impartial hearing officer ("IHO") found that Ann is "socially maladjusted" and also "seriously emotionally disturbed." According to the IHO, Ann's lying, stealing, truancy and drug abuse are symptomatic of social maladjustment. Ann's cutting and hair pulling are symptomatic of emotional disturbance. The IHO concluded that Elan, but not Dewey, was reasonably calculated to provide Ann an educational benefit and ordered that plaintiffs be reimbursed for Elan's tuition. Dewey was not reasonably calculated to provide Ann with educational benefit because the program was too loosely structured, provided too little supervision and placed high expectations on the students. By contrast, Elan was appropriate because it was non- voluntary and designed to stress a work ethic. Ann's high grades at Elan confirmed that she was deriving educational benefit from the program there.
On appeal, in a decision dated August 31, 2006, the State Review Officer ("SRO") reversed the IHO's opinion, holding that Ann was not properly classified as emotionally disturbed and therefore plaintiffs were not entitled to any tuition reimbursement. Although the SRO acknowledged that Ann exhibited inappropriate behaviors such as cutting and hair pulling, the SRO concluded that plaintiffs had "not shown that these behaviors affect [Ann's] educational performance to the extent that she needed special education."
Plaintiffs filed this federal suit to challenge the decision of the SRO.
I. The Statutory Scheme of the IDEA
Section 1415(i)(2)(C) of the IDEA provides that "the [district] court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." 20 U.S.C. § 1415(i)(2)(C). The level of deference due to the administrative determinations of the state educational agency depends on what type of determination a district court is reviewing.
The most common question to arise is whether a proposed individual education plan is appropriate. The role of the reviewing court in making this assessment is "circumscribed."
M.C. ex rel Mrs. C. v. Voluntown Bd. Of Educ., 226 F.3d 60, 66 (2d Cir. 2000). "The district courts are required to give 'due weight' to the findings of a state administrative proceeding, and the 'preponderance' review provision set forth in the IDEA 'is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review.'" Muller ex rel Muller v. Committee on Special Educ., 145 F.3d 95, 101 (2d Cir. 1998) (quoting Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206 (1982)).
However, the Second Circuit has held that deference to the state educational agency is not required when reviewing a determination that a student is an individual with or without a disability. Muller, 145 F.3d at 102. The central issue in Muller, as is true in this case, was whether the student qualified as "emotionally disturbed" as defined in the relevant state and federal regulations, such that she qualified as disabled. The Second Circuit stated that "resolution of this issue involves interpretation of the IDEA and the definition of 'emotional disturbance' under the applicable federal and New York State regulations. In this matter of statutory interpretation,. . . state administrative officials [a]re in no better position than the district court to make conclusions with respect to [the student]'s statutory eligibility based on the record." Id. The Court further explained that "application of the IDEA's statutory and regulatory definitions to the particular facts of [a student]'s medical and educational history" is a "mixed question of law and fact." Id. at ...