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C.L. v. Scarsdale Union Free Sch. Dist.

United States Court of Appeals, Second Circuit

March 11, 2014

C.L., Individually, G.W., Individually, and on behalf of C.L., a child with a disability, Plaintiffs-Appellants,

Argued June 19, 2013.

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ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. Appeal from a judgment of the United States District Court for the Southern District of New York (Seibel, J.) granting summary judgment to school district and dismissing claims brought by parents of a disabled child under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq., and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794.


JESSE COLE CUTLER, Skyer and Associates, LLP, New York, New York, for Plaintiffs-Appellants.

STEPHANIE MARIE ROEBUCK, Keane & Beane, P.C., White Plains, New York, for Defendant-Appellee.

Jay Worona and Pilar Sokol, Latham, New York, for Amicus Curiae New York State School Boards Association, Inc.

Francisco Maria Negrón, Jr. and Naomi E. Gittins, Alexandria, Virginia, for Amicus Curiae National School Boards Association.

Thomas E. Perez, Assistant Attorney General for the Civil Rights Division, Nathaniel S. Pollock and Mark L. Gross, Attorneys, United States Department of Justice, Washington, D.C.; Preet Bharara, United States Attorney for the Southern District of New York, Sarah S. Normand and Lara K. Eshkenazi, Assistant United States Attorneys, New York, New York; and Phillip H. Rosenfelt, Deputy General Counsel, Francisco Lopez and Marcus Hendrick, Attorneys, United States Department of Education, for Amicus Curiae United States Department of Education.

Before: STRAUB, HALL, and CHIN, Circuit Judges.


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Chin, Circuit Judge :

In this case, C.L., a child with a disability, was denied a free appropriate public education (a " FAPE" ) by the Scarsdale Union Free School District (the " District" ). His parents, plaintiffs-appellants C.L. and G.W., placed him in a specialized private school designed to educate children with learning disabilities and sued the District for tuition reimbursement under the Individuals with Disabilities Education Act (the " IDEA" ), 20 U.S.C. § 1400 et seq. An Impartial Hearing Officer (" IHO" ) awarded tuition reimbursement to C.L.'s parents, holding that the District denied C.L. a FAPE and that the parents' private placement was appropriate. A State Review Officer (" SRO" ) reversed, agreeing that C.L. was denied a FAPE but holding that the parents' private placement was not appropriate, at least in part because the specialized private school was a more restrictive environment than the public school in which C.L. had been placed. The district court affirmed.

We reverse. We hold that the SRO's decision was insufficiently reasoned to merit deference and we instead defer to the IHO's decision, which was more thorough and carefully considered. The IHO detailed the programs that the parents' placement provided to C.L. and the progress C.L. made there. The IHO also took into account the school's restrictiveness as one factor in his decision. In contrast, the SRO did not examine the kind of education and services the parents' placement provided C.L., effectively ruling that the school was inappropriate only because it was more restrictive than the public school he previously attended. When a public school district, however, denies a child with a disability a FAPE, a private placement is not inappropriate merely because the environment is more restrictive than the public school alternative. When a child is denied a FAPE, his parents may turn to an appropriate specialized private school designed to meet special needs, even if the school is more restrictive.

The parents also brought a claim under Section 504 of the Rehabilitation Act of 1973 (the " Rehabilitation Act" ), 29 U.S.C. § 794, alleging that the District discriminated against C.L. on account of his disability. The district court granted summary judgment dismissing the claim, concluding that the parents had not presented sufficient evidence of bad faith or gross misjudgment. We affirm the dismissal of the Rehabilitation Act claim.

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A. Legal Background

The IDEA seeks to provide to all children with disabilities " a free appropriate public education that emphasizes special education and related services." 20 U.S.C. § 1400(d)(1)(A); see Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley, 458 U.S. 176, 181, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) (interpreting predecessor statute to IDEA, Education of the Handicapped Act). States receiving federal funding must provide children with disabilities with a FAPE " tailored to meet the unique needs of a particular child." Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998) (citation omitted). A FAPE must also reflect the IDEA's " 'strong preference' for educating disabled students alongside their non-disabled peers; that is, in their least restrictive environment." M.W. ex rel. S.W. v. N.Y.C. Dep't of Educ., 725 F.3d 131, 143 (2d Cir. 2013) (citing Walczak, 142 F.3d at 122).

The IDEA requires states to create an individualized education program (" IEP" ) for each disabled child. See 20 U.S.C. § 1412(a)(4); see also Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988) (describing development of IEP as " centerpiece" of IDEA); Frank G. v. Bd. of Educ., 459 F.3d 356, 363 (2d Cir. 2006) (describing IEP as " [t]he key element of the IDEA" ). The IEP is " a written statement that sets out the child's present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives." D.D. ex rel. V.D. v. N.Y.C. Bd. of Educ., 465 F.3d 503, 507-08 (2d Cir. 2006) (internal quotation marks omitted); see also 20 U.S.C. § 1414(d)(1)(A). The IEP must be reviewed at least annually and revised in accordance with the child's needs. 20 U.S.C. § 1414(d)(2), (3), (4).

Where the state fails to provide a FAPE to a disabled child, the parents may enroll the child in a private school and seek reimbursement for the cost of the private school education from the local education agency. See 20 U.S.C. § 1412(a)(10)(C)(i), (ii); Sch. Comm. of Town of Burlington, Mass. v. Dep't of Educ., 471 U.S. 359, 370, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985); Frank G., 459 F.3d at 363. In New York, which is covered by the IDEA, a parent seeking such reimbursement must first pursue that claim in a due process hearing before an IHO, N.Y. Educ. Law § 4404(1) (McKinney 2006), and may appeal an adverse ruling to an SRO, id. § 4404(2). Either party may then seek review of the SRO's decision in federal court. 20 U.S.C. § 1415(i)(2)(A).

Parents may also seek relief under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), where their child has been subjected to discrimination on account of her disabilities in any program receiving federal financial assistance. As we have noted, " [t]he purposes of the Rehabilitation Act are similar to that of the IDEA." Muller ex rel. Muller v. Comm. on Special Educ. of E. Islip Union Free Sch. Dist., 145 F.3d 95, 99 n.2 (2d Cir. 1998). There are, however, differences in the two statutes, and an accommodation developed to comply with the Rehabilitation Act is " not an adequate substitute" for an IEP under the IDEA. Id. at 105 & n.9; accord R.B. ex rel. F.B. v. Napa Valley Unified Sch. Dist., 496 F.3d 932, 946 (9th Cir. 2007). An individual aggrieved by a violation of the Rehabilitation Act may seek, inter alia, compensatory damages. 29 U.S.C. § 794a.

B. The Facts

The relevant facts are largely undisputed. C.L. has been diagnosed with attention

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deficit hyperactivity disorder (" ADHD" ), nonverbal learning disability, and executive function weakness. He has exhibited problems with anxiety, stuttering, fine motor development, and visual motor coordination, all of which inhibit his ability to learn. From the 2004-05 school year to the 2007-08 school year -- kindergarten to third grade -- C.L. attended Greenacres Elementary School, a public school in Scarsdale, New York, operated by the District. During the fourth year, the 2007-08 school year, C.L.'s parents requested that C.L. be considered for an IEP under the IDEA. After the District determined that he was not entitled to an IEP, the parents enrolled C.L. at the Eagle Hill School, a specialized private school in Greenwich, Connecticut, for the 2008-09 school year.

1. The First Three Years at Greenacres

In October 2004, in kindergarten, C.L. began receiving speech-language therapy sessions once a week to address his " episodic dy[sfl]uency." In January 2005, he began receiving pre-reading instruction sessions twice a week in Greenacres's Learning Resources Center (" LRC" ).[1] An occupational therapy evaluation in March 2005 noted C.L.'s " delays in fine motor development and visual motor coordination, which [were] impacting [ ] his ability to perform classroom tasks, such as writing and using scissors."

In March 2005, the District convened a committee pursuant to Section 504 of the Rehabilitation Act (the " 504 Committee" ) to consider whether C.L. was disabled within the meaning of the statute and, if so, to recommend a course of action. The 504 Committee determined that C.L. was eligible for services under the Rehabilitation Act and thus prepared a Section 504 Accommodation Plan (the " 504 Plan" ). The 504 Plan recommended that C.L. be removed from class for thirty minutes once weekly for occupational therapy sessions in a 1:1 student-to-teacher ratio setting.

The 504 Committee reconvened in October 2005 and October 2006 to plan for the 2005-06 and 2006-07 school years, respectively. Noting C.L.'s difficulties with writing, remembering routines, and sustaining attention, the 2005-06 504 Plan recommended: the continuation of the once weekly speech-language therapy sessions in a 5:1 setting; an increase of the LRC sessions to four times a week in a 6:1 setting; and an increase of the occupational therapy sessions to twice weekly in one 1:1 setting and one 4:1 setting. The 2006-07 504 Plan observed that " [C.L.'s] reading ha[d] improved," but his " level of disfluency ha[d] increased... [to] stuttering" and he had begun to exhibit anxiety in the classroom. The 2006-07 504 Plan ...

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