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V.S. v. New York City Dep't of Educ.

United States District Court, E.D. New York

June 10, 2014

V.S., by his parent, D.S., Plaintiffs,
v.
NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant

Decided June 9, 2014

Page 296

For V.S., by his parent, D.S., Plaintiffs: Gary S. Mayerson, LEAD ATTORNEY, Jean Marie Brescia, Maria C. McGinley, Mayerson & Associates, New York, NY.

For New York City Department of Education, Defendant: John Michael Buhta, Mark Galen Toews, LEAD ATTORNEYS, New York City Law Department, New York, NY.

Page 297

ORDER

Jack B. Weinstein, Senior United States District Judge.

Table of Contents

I. Introduction

II. Facts

III. Law

A. Statutory Framework

B. Judicial Review

IV. Application of Law to Facts

A. Review of the Administrative Decisions

B. Burlington/Carter Test

1. Marathon School

2. Rebecca School

3. Consideration of the Equities

C. Prevailing Party

V. Conclusion

I. Introduction

D.S., on behalf of her son, V.S., sues the New York City Department of Education (" DOE" ) for failing to provide a free appropriate public education (" FAPE" ) under the Individuals with Disabilities Education Improvement Act (" IDEA" ) for the 2011-2012 school year. See 20 U.S.C. § 1400, et seq.

Plaintiffs seek reversal of the decision by the State Review Officer (" SRO" ), who found that the DOE offered V.S. a FAPE for the 2011-2012 school year. Both parties move for summary judgment. A hearing was conducted. See ECF No. 41 (May 28, 2014).

The parent was given notice that her autistic child would be placed in a particular school, specified by name and geographic location. See Final Notice of Recommendation, ECF No. 23. She made a good-faith effort to determine if that school was appropriate by visiting the physical school referred to in the notice she received, concluded that it was not because it dealt with much older children, filed a complaint with the DOE, and received no response.

At an administrative hearing, the DOE prevailed by defending the merits of a physically different school located at a different location on the theory that it was to this different location that the child would ultimately have been sent and that it was satisfactory for the child's needs.

The critical issue now posed is whether evidence regarding the adequacy of a particular school assignment is limited to the school for which plaintiffs received notice and thereafter reasonably determined was inadequate. The process relied upon by defendant is colorfully referred to as a " bait and switch" assignment.

Local education agencies, strained by limited physical infrastructure and significant financial constraints, must have enough flexibility to accommodate a changing student body with diverse and, at times, conflicting needs. At the same time, students with disabilities and their

Page 298

parents--if they are to adequately protect their child's access to appropriate educational opportunities--must be afforded the right to challenge a particular school assignment. Under the particular circumstances here, with no attempt to keep the parent apprised of the assigned school so that it could be visited, there was a denial of due process. Permitting the local education agency to give advance ...


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