United States District Court, S.D. New York
J.F. and L. V. individually and on behalf of N.F., Plaintiffs,
NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant.
OPINION & ORDER
KATHERINE B. FORREST, District Judge.
Plaintiffs-appellants J.F. and L.V. filed this action, individually and on behalf of their minor child N.F., seeking tuition reimbursement for the 2010-2011 school year pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-82. In an earlier action before this Court, J.F. and L.V. sought review of a November 25, 2011 administrative decision of a New York State Review Officer ("SRO"), which reversed a September 15, 2011 decision by an Impartial Hearing Officer ("IHO") awarding N.F. tuition reimbursement. On November 27, 2012, the Court granted partial summary judgment for defendant, and remanded to the IHO to determine whether N.F.'s proposed placement classroom violated the IDEA and entitled J.F. and L.V. to tuition reimbursement. After the IHO determined that N.F.'s assignment was inappropriate and J.F. and L.V. were entitled to tuition reimbursement, defendant the New York City Department of Education ("DOE") appealed to the SRO, which again overturned the IHO's decision. J.F. and L.V. then brought the instant suit seeking reversal of the SRO's decision.
Now pending before the Court are the parties' cross-motions for summary judgment. Because the SRO's decision is well-reasoned, analytically thorough, and adequately responsive to the Court's stated reason for remand, the Court GRANTS the DOE's motion for summary judgment, and DENIES J.F. and L.V.'s motion for summary judgment.
The Court assumes familiarity with the factual and procedural background of this action and its prior related action, as well as the applicable statutory and administrative framework, as set forth in the Court's Memorandum Decision & Order dated November 27, 2012. (12-cv-2184 ECF No. 24 ("SJ Op.").) Here the Court recites only that which is necessary to understand the pending motions.
N.F., who was born in 2004, is an elementary school student classified with a speech or language impairment. His parents are J.F. and L.V. In anticipation of the 2009-2010 school year, a committee on special education ("CSE") approved N.F's placement in a non-public school. For that school year, N.F.'s parents placed him in the Aaron School, a private school not pre-approved for disability education by the State Education Department. The DOE reimbursed N.F.'s tuition for that year.
In January 2010, N.F.'s parents re-enrolled him at the Aaron School for the 2010-2011 school year, and made an $8, 000 non-refundable deposit. On June 9, 2010, a committee on special education ("CSE") met to construct an individualized education program ("IEP") for N.F. for the 2010-2011 school year. The CSE recommended that N.F. be placed in a special class in a community school with a 12:1 student to teacher ratio. The CSE minutes reflect that J.F. and L.V. expressed concern about this recommendation.
On August 10, 2010, the DOE notified J.F. and L.V. of N.F.'s specific classroom placement offer in a 12:1 special class at P.S. 198, a community school. J.F. and L.V. were concerned about this proposed placement; they made repeated efforts to learn about and visit the classroom, but did not visit until the school opened on September 13, 2010. N.F. continued to attend the Aaron School, and J.F. and L.V. continued to pay his tuition there.
On January 27, 2011, J.F. and L.V. sought tuition reimbursement from the state by filing a due process complaint before an IHO. The IHO found, inter alia, that the Aaron School was an appropriate placement for N.F. and the equities favored tuition reimbursement for the parents. On September 27, 2011, the DOE appealed the IHO's decision to an SRO, who upon an extensive review of the record reversed portions of the IHO decision, but did not reach any determination regarding the appropriateness of the assigned school (presumably because of the parents' failure to cross-appeal that issue) and therefore did not address whether J.F. and L.V. were entitled to tuition reimbursement.
On March 23, 2012, J.F. and L.V. brought an action before this Court, individually and on behalf of N.F., pursuant to the Individuals with Disabilities Education Act ("IDEA"), seeking review of the SRO's decision to deny N.F. tuition reimbursement. (12-cv-2184 ECF No. 1.) In a Memorandum Decision & Order dated November 27, 2012, this Court upheld the 2011 SRO decision and granted partial summary judgment for the DOE on all issues regarding the sufficiency of N.F.'s 2010-2011 IEP. (SJ Op. at 20-21.) However, the Court declined to grant summary judgment regarding the adequacy of N.F.'s school placement, because neither the IHO nor the SRO had previously addressed this issue. (SJ Op. at 20.) The Court remanded the case to the IHO to make an initial finding whether N.F.'s proposed placement classroom violated the IDEA and entitled plaintiffs to tuition reimbursement. (SJ Op. at 20-21.)
On remand, the IHO determined that based on the record of the initial hearing, N.F.'s assignment to a 12:1 classroom in P.S. 198 was not suitable, and therefore N.F. was denied a FAPE during the 2010-2011 school year, entitling N.F.'s parents to a tuition reimbursement of $45, 675. (Hearing Officer's Findings of Fact and Decision in Case No. 131959 dated October 24, 2013, ECF No. 21 vol. 1). The DOE appealed the IHO's decision to the SRO, which determined that the offered placement at P.S. 198 was appropriate and that there was no evidence indicating that P.S. 198 would have been incapable of implementing N.F.'s 2010-2011 IEP. (Decision No. 13-220 of the State Review Officer dated Jan. 24, 2014, ECF No. 21 vol. 1 ("SRO Op.").)
The SRO began by summarizing each of the arguments advanced by both parties in their submissions, and by reciting in detail the applicable legal standards, which took into account recent Second Circuit and New York federal district court case law. (See SRO Op. at 5-10.) The SRO then explained how under Second Circuit case law, "if it becomes clear that the student will not be educated under the proposed IEP, there can be no denial of a [free appropriate public education ("FAPE")] due to the failure to implement the IEP." (SRO Op. at 9 (citing R.E. v. N.Y.C. Dep't of Educ., 694 F.3d 167, 186-88 (2d Cir. 2012).) Thus, under Second Circuit law, "where a parent enrolls the child in a private placement before the time that the district would have been obligated to implement the IEP placement, the validity of proposed placement is to be judged on the face of the IEP, rather than from evidence introduced later concerning how the IEP might have been, or allegedly would have been, implemented." (SRO Op. at 9-10 (quoting A.M. v. N.Y.C. Dep't of Educ., 2013 WL 4056216, at *13 (S.D.N.Y. Aug. 9, 2013).) In N.F.'s case, his parents had argued that the district would have failed to implement the June 2010 IEP at the public school site, and accordingly they were attacking the implementation of the IEP in a speculative, retrospective manner, rather than attacking the face of the IEP. (See SRO Op. at 9-10.) N.F.'s parents thus could not prevail on their claims. (SRO Op. at 10.)
Finally, the SRO assessed the appropriateness of P.S. 198, assuming arguendo that N.F. had attended it, and determined that there was insufficient evidence in the record to conclude that the district would have deviated from the student's IEP in a material or substantial way that would have resulted in a failure to offer the student a FAPE-that is, that the student's management needs would have been appropriately addressed in the proposed classroom had he attended the assigned public school site. (See SRO Op. at 11-15.) In doing so, the SRO engaged in an extensive review of the record, which incorporated two dozen unique evidentiary citations. (See SRO Op. at 12-13.) Ultimately, the SRO concluded that N.F.'s parents were not entitled to tuition reimbursement. (See SRO Op. at 15.)
N.F.'s parents, J.F. and L.V., filed the complaint in this action on May 23, 2014, seeking review and reversal of the SRO's decision. (ECF No. 2.) The DOE filed an answer on July 16, 2014 (ECF No. 7), and filed the administrative record before the SRO under seal on July 17, 2014 (ECF No. 21). Plaintiffs filed a motion for summary judgment on August 27, 2014. (ECF No. 13.) The DOE filed its opposition and cross-moved for summary judgment on August 17, 2014. (ECF No. 18.) Plaintiffs opposed the DOE's cross-motion on October 31, 2014. (ECF ...