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A.R. Ex Rel. F.P. v. New York City Department of Education

United States District Court, Second Circuit

September 23, 2013

A.R. on behalf of F.P., Plaintiff,


PAUL A. CROTTY, District Judge.

Plaintiff A.R. brings this action on behalf her daughter, F.P. ("Student"), against the New York City Department of Education (the "DOE"), seeking direct payment of the Student's private school tuition for the 2010-11 school year as a remedy for the DOE's undisputed failure to offer the Student a free appropriate public education ("FAPE") as required by the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. Since the DOE failed to offer a FAPE, the Plaintiff had a right to place the disabled child in an appropriate learning setting and to seek DOE funding for tuition for the private placement, if equitable considerations support such funding.

Plaintiff sought that funding, but the DOE's Impartial Hearing Officer ("IHO") found that Plaintiff's placement of the Student at Cooke Center for Learning and Development ("Cooke") was inappropriate. In any event, the IHO reasoned, the request for tuition had to be rejected because it was unsupported by equitable considerations. On appeal to the New York State Education Department's State Review Officer ("SRO"), the SRO reversed the IHO's finding that the Student's placement at Cooke was inappropriate, but concurred with the IHO's determination that the request for tuition was not supported by equitable considerations.

For the reasons set forth below, the Court affirms the SRO's determination that the Student's placement at Cooke was appropriate. Further, the Court reverses both the IHO and SRO on the issue of funding and finds that equitable considerations fully support ordering DOE to make a retroactive direct tuition payment for the Student's placement at Cooke. Accordingly, the Court grants Plaintiff's motion for summary judgment and denies Defendant's cross motion.


The Student turned eleven years old in October 2010. She is learning disabled and is speech and language impaired. There is no dispute that she has "a history of severe receptive/expressive and language processing issues, which negatively impacted her overall academic and social/emotional development." (Pl.'s R. 56.1 Stmt. ¶ 2.) Her "language difficulties interfered with her ability to grasp information taught in the classroom, particularly her ability to decode, which, in turn, resulted in attentional difficulties, anxiety attacks, and damage to [her] confidence and self-esteem, further impeding the learning process." ( Id. ¶ 3 (citations omitted).) Accordingly, the parties agree that the Student is a "child with a disability" as defined by the IDEA, 20 U.S.C. § 1401(3). At home, the Student speaks Spanish with her mother, the Plaintiff, whose English language skills are poor. In the 2008-09 and 2009-10 school years, the Student was enrolled at Cooke, [2] which is "a non-State approved private school in Manhattan that is designed primarily to educate students with speech/language, communication disorders, and learning disabilities." (Pl.'s R. 56.1 Stmt. ¶ 7.)

On March 12, 2010, Plaintiff signed an enrollment contract with Cooke for the 2010-11 school year. The contract provided that the tuition would be $44, 500 and that Plaintiff "acknowledge[d] that [she] [is] responsible for full payment of the tuition due under this contract." (Pl.'s Ex. M. § 2.a) The contract further provided that full payment was due on September 30, 2010, but that "the Cooke Center will permit payment of the tuition owed under this contract to be delayed beyond the due date in the event that [Plaintiff] undertake[s] to pursue [her] due process rights to seek direct or prospective' tuition funding from the [DOE] under applicable law." ( Id. § 8.b.-c.) Plaintiff agreed that in the event that she pursued funding from DOE, she would "take all necessary steps to secure such funding as promptly as possible and to cooperate fully in the process required to secure such funding." ( Id. § 9.a.[3]) The contract also stated that Plaintiff would be "released from this contract without financial penalty or continuing responsibility for tuition payments... should [she] choose to accept a school placement recommended by the [DOE], " provided that she notify Cooke of her intention to do so by October 31, 2010, and that she would be responsible for only a pro-rated tuition amount if she gave notice after that date. ( Id. § 10.b.) Finally, the contract stated that Cooke's failure to enforce its rights under the contract would not waive those rights or its ability to enforce them later. ( Id. § 11.)

After signing that contract, Plaintiff attended a meeting of the DOE's Committee on Special Education ("CSE") on May 24, 2010 to develop an Individualized Education Plan ("IEP") for the Student. While the IEP assessed the Student's performance, set forth goals for her development, and recommended a "special class with related services, " it did not recommend a particular school placement for her. (Pl.'s Ex. J.)

Later that summer, on August 24, Plaintiff's counsel sent a letter to the CSE stating that the DOE had "failed to offer [the Student] an appropriate program for the 2010-2011 school year" and that the Plaintiff intended to enroll the Student at Cooke for that school year and seek payment from DOE to cover the tuition. (Pl.'s Ex. F.) Apparently later that same day, [4] Plaintiff received a Final Notice of Recommendation ("FNR") from DOE assigning the Student to a classroom in J.H.S. 131 in the Bronx. On August 27, Plaintiff's counsel sent a letter in response to the FNR, stating that a "12:1 classroom is unlikely to provide the necessary attention and support to enable [the Student] to progress, " that Plaintiff would be "unable to observe the classroom until after the start of school on September 8, " and that pending her visit to J.H.S. 131 to make an assessment, she would enroll the Student at Cooke. (Pl.'s Ex. E.) On October 5, Plaintiff's counsel sent a letter to the CSE stating that Plaintiff had visited the recommended placement at J.H.S. 131 on October 1 and that she had decided to keep the Student enrolled at Cooke because the recommended placement was inappropriate. (Pl.'s Ex. D.)

DOE concedes that it did not offer the Student a FAPE for the 2010-11 school year. (Def.'s R. 56.1 Stmt. ¶ 5 n.1 (citing IHO Hr'g Tr. 7).)

The following year, on August 12, 2011, Plaintiff sent the DOE a request for an impartial hearing on her claim for direct payment of the Student's 2010-11 tuition at Cooke. (Pl.'s Ex. A.) That hearing took place on November 9, 2011, and the IHO issued a decision on November 30, denying Plaintiff's claims on the grounds that she had not established that Cooke was an appropriate placement and that equitable considerations did not favor granting her relief. (IHO Dec. 14.) On January 4, 2012, Plaintiff appealed the IHO's decision to the SRO. On March 19, 2012, the SRO reversed the IHO's finding that Plaintiff's "unilateral placement of the student at Cooke" was inappropriate (SRO Dec. 7, 17) but affirmed the IHO's decision on the grounds that "equitable considerations did not support the Plaintiff's claim" (SRO Dec. 14).

On June 8, 2012, Plaintiff filed a Complaint in this Court appealing the SRO's decision. The parties' cross-motions for summary judgment were fully briefed on April 15, 2013.


I. Legal Standards for IDEA Claims

A. Statutory Framework

The IDEA mandates a FAPE for children with disabilities, see 20 U.S.C. § 1400(d)(1)(A), to be "provided in conformity with" an IEP, 20 U.S.C. § 1401(9). To ensure compliance, see 20 U.S.C. § 1415, "New York State has implemented a two-tier system of administrative review." Mackey ex rel. Thomas M. v. Bd. of Educ. for Arlington Cent. Sch. Dist., 386 F.3d 158, 160 (2d Cir. 2004). "At the first level of review, an impartial hearing officer (IHO') appointed by the local board of education conducts a due process hearing." M.M. ex rel. J.M. v. New York City Dep't of Educ., No. 09-CV-5236, 2010 WL 2985477, *2 (S.D.N.Y. July 27, 2010); see N.Y. Educ. Law § 4404(1). "Following the decision of the IHO, an aggrieved party may appeal to a state review officer (SRO')." M.M., 2010 WL 2985477, at *2. "After exhausting this two-step administrative process, any party still aggrieved may bring a civil action challenging the decision in federal or state court." R.B. v. New York City Dep't of Educ., 713 F.Supp.2d 235, 238 (S.D.N.Y. 2010) (citing 20 U.S.C. § 1415(i)(2)(A); N.Y. Educ. Law § 4404(3)).

"[W]hen a public school fails to provide a FAPE and a child's parents place the child in an appropriate private school without the school district's consent, a court may require the district to reimburse the parents for the cost of the private education." Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 232 (2009). But parents "do so at their own financial risk. If the courts ultimately determine that the IEP proposed by the school officials was appropriate, the parents [are] barred from obtaining reimbursement." Sch. Comm. of Burlington v. Dep't of Educ. of Mass., 471 U.S. 359, 374 (1985). Parents are entitled to reimbursement if they "can establish the three so-called Burlington-Carter ' factors: (1) that the educational program recommended by the IEP was inappropriate to meet the child's needs; (2) that the alternative placement selected by the parents was appropriate; and (3) that equitable factors weigh in favor of reimbursement." B.R. ex rel. K.O. v. New York City Dep't of Educ., 910 F.Supp.2d 670, 673 (S.D.N.Y. 2012); see Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 15-16 (1993); Sch. Comm. of Town of Burlington v. Dep't of Educ., 471 U.S. 359, 370, 374 (1985)).

The District Court has "broad discretion' to grant such relief as... is appropriate' under [20 U.S.C.] § 1415(i)(2)(C)(iii), " including the award of "retroactive direct payment of private school tuition." Mr. & Mrs. A. ex rel. D.A. v. New York City Dep't of Educ., 769 F.Supp.2d 403, 427 (S.D.N.Y. 2011) (citing cases); accord P.K. ex rel. S.K. v. New York City Dep't of Educ., 819 F.Supp.2d 90, 118 (E.D.N.Y. 2011) aff'd, No.11-3525, 2013 WL 2158587 (2d Cir. May 21, 2013). Thus, "[w]here... parents lack the financial resources to front' the costs of private school tuition, and in the rare instance where a private school is willing to enroll the student and take the risk that the parents will not be able to pay ...

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