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S.W. v. New York City Dep't of Education

March 30, 2009


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


The plaintiff, S.W. ("S.W."), brings this action on behalf of her son M.W. 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"). S.W. appeals the decision of the State Review Officer ("SRO") denying her claim for direct payment of her son's tuition to the Bay Ridge Preparatory School ("Bay Ridge"), a private school at which she unilaterally placed M.W. for the 2005-06 school year. The SRO's decision reversed the decision of an Impartial Hearing Officer ("IHO") which granted direct tuition payment to Bay Ridge. The parties have cross-moved for summary judgment. Amicus organizations Partnership for Children's Rights, Advocates for Children of New York, Inc., and New York Legal Assistance Group have moved for leave to file a memorandum of law amicus curiae. The Court grants that motion and has considered that brief and subsequent submissions. 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 Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir. 2007) (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 ("FAPE") 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 Cent. 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 an appropriate IEP for a child is assigned to a local Committee on Special Education ("CSE"). Walczak, 142 F.3d at 123.

Parents in New York who wish to challenge their child's 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)); see also Jennifer D. v. New York City Dep't of Educ., 550 F. Supp. 2d 420, 424 (S.D.N.Y. 2008).

Under the IDEA, a district court independently reviews the administrative record, along with any additional evidence presented by the parties, and must determine by a preponderance of the evidence whether the IDEA's provisions have been met.*fn1

Grim, 346 F.3d at 380; see also Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997). This independent review, however, 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." Rowley, 458 U.S. at 206. The Court of Appeals for the Second Circuit has explained that "federal courts reviewing administrative decisions must give 'due weight' to these proceedings, mindful that the judiciary generally 'lack[s] the specialized knowledge and experience necessary to resolve persistent and difficult questions of educational policy.'" Gagliardo, 489 F.3d at 113 (quoting Rowley, 458 U.S. at 206, 208); see also Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 191 (2d Cir. 2005).

Deference to the decision in the administrative record is particularly appropriate when the administrative officers' review has been thorough and careful, and when the Court's decision is based solely on the administrative record. See Walczak, 142 F.3d at 129; Frank G. v. Bd. of Educ., 459 F.3d 356, 367 (2d Cir. 2006). Where the findings of the IHO and SRO conflict, the findings of the IHO "may be afforded diminished weight." A.C. and M.C. v. Bd. of Educ. of The Chappaqua Cent. Sch. Dist., 553 F.3d 165, 171 (2d Cir. 2009) (quoting Gagliardo, 489 F.3d at 113 n.2); Jennifer D., 550 F. Supp. 2d at 429. Accordingly, the Court "'defer[s] to the final decision of the state authorities,' even where 'the reviewing authority disagrees with the hearing officer.'" A.C., 553 F.3d at 165 (quoting Karl ex rel. Karl v. Bd. of Educ. of Geneseo Cent. Sch. Dist., 736 F.2d 873, 877 (2d Cir. 1984)).


The following facts and procedural background are taken from the administrative record.

S.W. is the parent of M.W. (Pl.'s 56.1 Statement ¶ 1; Def.'s Resp. to Pl.'s 56.1 Statement ("Def.'s 56.1 Resp.") ¶ 1.) M.W. was born in 1989 and, at the beginning of the 2005-2006 school year, was fifteen years old. (Pl.'s 56.1 Statement ¶ 1; Def.'s 56.1 Resp. ¶ 1.) He is classified as a student with a learning disability and is eligible for special education services under the IDEA. (Pl.'s 56.1 Statement ¶ 1; Def.'s 56.1 Resp. ¶ 1.) M.W. has been a special education student since kindergarten. (Aff. of S.W. ("S.W. Aff.") ¶ 2.) From kindergarten through fifth grade, M.W. attended P.S. 222, a public school. (Pl.'s 56.1 Statement ¶ 3; Def.'s 56.1 Resp. ¶ 3.) S.W. alleges that M.W. experienced learning difficulties and performed poorly in school while at P.S. 222. (Pl.'s 56.1 Statement ¶ 4.) He was held back in the first grade, although he was subsequently promoted through second, third, fourth, and fifth grade. (Pl.'s 56.1 Statement ¶ 4; Def.'s 56.1 Resp. ¶ 4.)

S.W. alleges that during M.W.'s fifth grade year, she realized that he was not learning in his special education class at P.S. 222. (S.W. Aff. ¶ 10.) According to S.W., M.W. was barely reading and writing on the second grade level. (S.W. Aff. ¶ 10.) After M.W. completed the fifth grade, S.W. rejected the DOE's proposed sixth grade placement in the special education program at P.S. 222 and unilaterally enrolled him in a special education program at Bay Ridge, a private school. (Pl.'s 56.1 Statement ¶¶ 2, 6; Def.'s 56.1 Resp. ¶¶ 2, 6.) Bay Ridge has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities. (Pl.'s 56.1 Statement ¶ 8; Def.'s 56.1 Resp. ¶ 8.) In 2001, M.W. began the sixth grade at Bay Ridge and continued to attend Bay Ridge through 2008. (Pl.'s 56.1 Statement ¶ 7; Def.'s 56.1 Resp. ¶ 7.) S.W. alleges that when she first enrolled M.W. at Bay Ridge, in 2001, she was unable to pay his tuition. (Pl.'s 56.1 Statement ¶ 9.) S.W. alleges that she signed an enrollment contract with Bay Ridge with the understanding that she would be legally responsible for M.W.'s tuition if she were not ultimately successful in obtaining an order requiring the DOE to pay it. (S.W. Aff. ¶¶ 15, 17.) She sought financial assistance from the DOE, and the DOE agreed to subsidize the cost of M.W.'s tuition for the 2001-2002 school year. (Pl.'s 56.1 Statement ¶¶ 9-10; Def.'s 56.1 Resp. ¶¶ 9-10.) For the 2002-2003, 2003-2004, and 2004-2005 school years, S.W. obtained payment from the DOE for M.W.'s tuition in a similar manner. In each of those years, the DOE classified M.W. as learning disabled and recommended that he be placed in a special education class in a public school. (Pl.'s 56.1 Statement ¶ 11; Def.'s 56.1 Resp. ¶ 11.) In each of those years, S.W. challenged the DOE's proposed placements, and the DOE agreed to pay M.W.'s tuition costs. (Pl.'s 56.1 Statement ¶¶ 12-13; Def.'s 56.1 Resp. ¶¶ 12-13; S.W. Aff. ¶¶ 19, 20.)

In the 2005-2006 school year, however, S.W. did not succeed in obtaining payment for M.W.'s tuition from the DOE. On June 2, 2005, M.W.'s CSE held its annual meeting to develop his IEP for the 2005-2006 school year. The CSE meeting was attended by S.W., another parent member, a representative from the district, a school psychologist, a school social worker, and two teachers from Bay Ridge. (Def.'s 56.1 Statement ¶ 6; Pl.'s Resp. to Def.'s 56.1 Statement ("Pl.'s 56.1 Resp.") ¶ 1.) The IEP developed at the meeting classified M.W. as learning disabled and recommended that he be placed in a special class environment with a 15:1 student to staff ratio. (Ex. 1 at 1, 7.)

According to S.W., the meeting was not satisfactory. She alleges that the Bay Ridge teachers participated in the meeting for "less than ten minutes," and that the academic goals and objectives listed in the IEP were not developed at the meeting but were prepared by the attending school psychologist after the meeting. (Pl.'s 56.1 Statement ¶ 19.) She alleges that she and the two Bay Ridge teachers allegedly told the CSE at the meeting that they believed a 15:1 ratio was not appropriate for M.W.'s needs. (Pl.'s 56.1 Statement ¶¶ 16-17.) They also allegedly challenged the accuracy of the psycho-educational evaluation that M.W. received as part of his triennial reevaluation. (Pl.'s 56.1 Statement ¶ 18.) However, there is nothing in the record to indicate that S.W. told the CSE that she would reject the proposed placement and enroll M.W. at Bay Ridge. On or about June 8, 2005, S.W. received a Final Notice of Recommendation indicating that the CSE had recommended that M.W. be placed in a 15:1 special education class at James Madison High School ("James Madison"). (Pl.'s 56.1 Statement ¶ 21; Def.'s 56.1 Resp. ¶ 21; Ex. 6.)

On August 15, 2005, S.W. signed a contract to enroll M.W. at Bay Ridge for the 2005-2006 school year. (Def.'s 56.1 Statement ¶ 10; Pl.'s 56.1 Resp. ¶ 1; Ex. B.) Item 1 of the contract lists the cost of tuition, $26,350. (Ex. B.) Item 2 states, in pertinent part:

The Parent acknowledges that, in the event they have been offered a public school placement for their child, the Parent has chosen to reject said public school placement in favor of placing their child in Bay Ridge Preparatory School. Furthermore, the Parent acknowledges that, due to his/her financial status, he/she is dependent upon receiving prospective payment from the New York City Department of Education (the DOE) following an Impartial Hearing in order to make the payment of tuition . . . .

(Ex. B.) Item 4 provides:

The Parent further acknowledges that the Bay Ridge Preparatory School has assumed the risk that the Parent may not receive prospective payment from the DOE or that said payment will be delayed beyond the term of the 2005-2006 school year. In consideration of Bay Ridge Preparatory's assumption of such a risk, the Parent agrees to cooperate fully in all efforts by his/her attorney and Bay Ridge Preparatory schools personnel to secure funding from the DOE for his/her child's placement at the Bay Ridge Preparatory School. The parent understands and agrees that, in the event that the Parent does not co-operate fully in the process, Bay Ridge Preparatory School may elect, upon 30 days notice, to terminate the child's enrollment at the Bay Ridge Preparatory School. (Ex. B.) At the bottom of the contract, the signature block states: "In the case of two parents both must sign," or, "[i]n the case of divorced parents the parent responsible for payments must sign." (Ex. B.) S.W. states that it has always been her understanding that the enrollment contract held her legally responsible for paying the tuition if the DOE did not provide payment. (S.W. Aff. ¶ 17.)

On September 8, 2005, M.W. began classes in the tenth grade at Bay Ridge. (Pl.'s 56.1 Statement ¶ 25; Def.'s 56.1 Resp. ¶ 25; Ex. C.) In early October 2005, S.W. visited the CSE's proposed placement, James Madison, to visit a class and discuss the placement with a special education counselor. (Pl.'s 56.1 Statement ¶¶ 22, 26; Def.'s 56.1 Resp. ¶¶ 22, 26; Tr. 25-27.)*fn2

According to S.W., she informed her advocate in mid-October 2005 that she was rejecting the proposed placement at James Madison. (Def.'s 56.1 Statement ¶ 14; Pl.'s 56.1 Resp. ¶ 1; Tr. 54-55.) However, she did not at that time inform the CSE or the DOE of her decision to reject the proposed placement. (Def.'s 56.1 Statement ¶ 15; Pl.'s 56.1 Resp. ¶ 2; Tr. 54-56.)

In fact, S.W. did not give notice to the DOE that she had rejected the public school placement and had enrolled M.W. at Bay Ridge until the following January. By letter dated January 12, 2006, S.W.'s advocate wrote on her behalf to request an impartial hearing seeking direct tuition payment to Bay Ridge for the 2005-2006 school year. (Def.'s 56.1 Statement ¶ 16; Pl.'s 56.1 Resp. ¶ 1; Ex. I.) The letter notes that S.W. did not think that a 15:1 special education placement was appropriate for her son and that she had rejected the recommended placement at James Madison. (Ex. I.) An impartial hearing ...

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