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Amy French, A Person With A Disability, By Her Parent v. New York State Department of Education

November 3, 2011

AMY FRENCH, A PERSON WITH A DISABILITY, BY HER PARENT, GARY FRENCH, PLAINTIFF-APPELLANT,
v.
NEW YORK STATE DEPARTMENT OF EDUCATION, FAYETTEVILLE-MANLIUS BOARD OF EDUCATION; SUPERINTENDENT OF SCHOOLS, DR. PHILIP*FN1 MARTIN; AND ASSISTANT SUPERINTENDENT LISA MIORI-DINNEEN, DEFENDANTS-APPELLEES.



Appeal from a judgment of the United States District Court for the Northern District of New York (Frederick J. Scullin, Jr., Judge).

10-4298-cv

French v. New York State Department of Education

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court's Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic database (with the notation "summary order"). A party citing a summary order must serve a copy of it on any party not represented by counsel.

1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the 2 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, 3 on the 3rd day of November, two thousand eleven.

5 PRESENT: 6 7 JOSE A. CABRANES, 8 DEBRA ANN LIVINGSTON, 9 SUSAN L. CARNEY, 10 Circuit Judges.

10 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 11 DECREED that the judgment of the District Court be AFFIRMED.

12 Plaintiff-appellant Amy French ("Amy") appeals from a judgment of the District Court granting 13 summary judgment to the defendants on all of her claims. We assume the parties' familiarity with the 14 underlying facts, the procedural history, and the issues on appeal. We briefly repeat here those facts that 15 are relevant to our decision.

16 Amy is an autistic individual who has been classified by the New York State Department of 17 Education ("DoE") as a student with a disability under the Individuals with Disabilities Education Act 18 ("IDEA"), 20 U.S.C. § 1400 et seq. In mid-1995, just prior to the start of her sixth grade year, Amy 19 moved into the school district of Fayetteville-Manlius (the "District"), where she began receiving special 20 educational services pursuant to an Individualized Education Program ("IEP") developed by the 21 District's Committee on Special Education ("CSE") in consultation with her father, Gary French 22 ("French"). Amy apparently thrived under the IEP, but her progress was disrupted in May 1996 when it 23 was determined that she was no longer a resident of the District. Although Amy's education in the 24 District resumed around November 1996, after French commenced an appeal of the District's residency 25 determination, her program was apparently no longer as beneficial as it had been under the 1995 IEP, 26 and it ceased altogether at the end of that school year.

27 Amy and her father moved back into the District in September 1997, but French did not provide 28 the District with proof of residency until December of that year. Shortly after French proved his 29 residency to the District's satisfaction, the District scheduled a meeting of its CSE to begin developing a 30 new IEP for Amy. However, French refused to attend the meetings, and instead demanded Amy be 2 1 subjected to a series of comprehensive physical and psychological evaluations before he would permit 2 the CSE to develop a new IEP. For the same reason, he declined the home education that the CSE 3 determined was necessary to help Amy make a transition back to the public school environment. The 4 issue of the comprehensive evaluation was not resolved until March 1999, and French refused to permit 5 the District to implement its IEP calling for homebound education throughout that time period.*fn2 After 6 receiving approximately 50 hours of instruction under a new IEP during the 1999-2000 school year, 7 Amy's schooling ceased entirely.

8 On March 5, 1998, French filed a complaint and petition for due process review before an 9 impartial hearing officer ("IHO"). Due to a series of delays, no action was taken on the petition, and on 10 March 12, 1999, French withdrew his complaint. At a February 2, 2000 meeting with the IHO, French 11 withdrew his complaint.

12 On September 12, 2001, French filed a second complaint and petition for due process review 13 requesting compensatory education. A hearing on the petition was held before IHO Stephen Aldersley 14 on fourteen days over the course of several months, during which nine witnesses testified (three for the 15 District and six for Amy) and 440 exhibits were filed. On May 30, 2002, as an interim measure, the IHO 16 directed the District to commence homebound education as laid out in its October 1996 IEP, and 17 directed the CSE to meet and discuss Amy's educational plan with French. On January 16, 2003, the 18 IHO denied Amy's request for compensatory education, holding that, although the District had 19 committed several procedural violations, it had on the whole demonstrated a substantial willingness to 20 provide Amy with the free appropriate public education ("FAPE") required by the IDEA. The IHO's 21 decision was affirmed by a State Review Officer ("SRO") on December 18, 2003. On March 31, 2003, 22 during the pendency of the administrative review, Amy reached the age of 21, at which point she was no 23 longer eligible to receive benefits under the IDEA. Mrs. C. v. Wheaton, 916 F.2d 69, 75 (2d Cir. 1990); see 24 Honig v. Doe, 484 U.S. 305, 318 (1988) (child "no longer entitled to the protections and benefits of the 1 [IDEA]" after reaching the age at which his or her home state considers the child to have completed 2 school).

3 Having properly exhausted her state administrative remedies, see Mrs. W. v. Tirozzi, 832 F.2d 748, 4 756 (2d Cir. 1987), Amy then brought suit in the Northern District of New York against the District, the 5 DoE, and two District administrators in their individual and official capacities, pursuant to the IDEA, 6 the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 1983, the Rehabilitation Act, and 7 Articles 65 and 89 of the New York State Education Law, seeking compensatory education and money 8 damages. The defendants moved for summary judgment, which was granted on September 30, 2010 9 based on the administrative record.*fn3

10 In granting judgment for the defendants the District Court affirmed the determination of the 11 IHO and SRO that those of Amy's claims that arose before ...


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