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S.W. v. The New York City Department of Education

United States District Court, S.D. New York

March 12, 2015

S.W. and B.S., on behalf of P.W., a minor child, Plaintiffs,
v.
THE NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant

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For S.W., on behalf of P.W., a minor child, B.S., on behalf of P.W., a minor child, Plaintiffs: Neal Howard Rosenberg, Law Office of Neal Rosenberg, New York, NY.

For The New York City Department of Education, Defendant: Charles Edward Carey, Omar Hani Tuffaha, LEAD ATTORNEYS, New York City Law Department, New York, NY.

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OPINION & ORDER

Sidney H. Stein, United States District Judge.

Plaintiffs S.W. and B.S. bring this action on behalf of their minor child P.W. pursuant to the Individuals with Disabilities Education Improvement Act, 20 U.S.C. § 1400, et seq. (" IDEA" ).[1] On July 16, 2013, Impartial Hearing Officer (" IHO" ) Craig Tessler awarded plaintiffs full reimbursement for P.W.'s tuition at the Stephen Gaynor School for the 2012--2013 school year. However, four months later, in a thorough and careful twenty-two page opinion, State Review Officer (" SRO" ) Justyn P. Bates reversed that determination and found that no reimbursement was appropriate. Plaintiffs now move for summary judgment in their favor, seeking an order reversing the SRO's decision and reinstating the IHO's award of reimbursement. Defendant, the New York City Department of Education (" DOE" or " the school district" ) cross-moves for summary judgment, seeking an order upholding the SRO's decision and dismissing the complaint. For the reasons set forth below, the parents' motion is denied and the school district's motion is granted.

I. Legal Framework

Congress enacted the IDEA " to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs ... [and] to ensure that the rights of children with disabilities and parents of such children are protected." 20 U.S.C. § 1400(d)(1)(A)-(B); see also Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239--40, 129 S.Ct. 2484, 174 L.Ed.2d 168 (2009) (discussing the purposes of the IDEA); Winkelman ex rel. Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 523, 127 S.Ct. 1994, 167 L.Ed.2d 904 (2007) (same).

Additionally, the IDEA expresses a " strong preference for educating disabled students alongside their non-disabled peers; that is, in their least restrictive environment ('LRE')." C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 831 (2d Cir. 2014) (citation and internal quotation marks omitted). States receiving federal funding under the IDEA are required to provide a free appropriate public education (" FAPE" ) to all children with disabilities. 20 U.S.C. § 1412(a)(1)(A).

To this end, the IDEA requires that the relevant local or state educational agency create an individualized education program (" IEP" ) at least annually for each disabled student. Id. § 1414(d)(2)(A). The IDEA envisions the IEP as " the centerpiece" of how a state delivers a FAPE. Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988). " That IEP must be developed in accordance with the

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procedures laid out in the IDEA, and must be 'reasonably calculated to enable the child to receive educational benefits.'" T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145 (2d Cir. 2014) (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982)).

In New York City, a Committee on Special Education (" CSE" ) develops each student's IEP. N.Y. Educ. L. § 4402(1)(b)(1). Parents are " members" of the CSE that formulates their child's IEP, id. at § 4402(1)(b)(1)(a), and the IDEA requires that they be provided an opportunity to present complaints with respect to the identification, evaluation, or placement of their child during the IEP process. 20 U.S.C. § 1415(b)(6)(A). Where parents believe that the school district has not adequately responded to their complaints, they may pursue their grievances through an " impartial due process hearing." Id. § 1415(f)(1)(A). In New York, an IHO conducts these hearings, and parties who disagree with the IHO's decision may appeal to the SRO. See N.Y. Educ. L. § 4404; 20 U.S.C. § 1415(g)(1). The SRO's decision, in turn, may be challenged in either state or federal court. 20 U.S.C. § 1415(i)(2)(A). That court shall " receive the records of the administrative proceedings," " hear additional evidence," and " grant such relief as the court determines is appropriate" based on " the preponderance of the evidence" before it. Id. § 1415(i)(2)(C).

If a state receiving federal funding for special education fails to give a disabled child a FAPE under the IDEA, the child's parents or guardians may unilaterally place the child in an appropriate private school and seek tuition reimbursement from the state. See Sch. Comm. of Burlington, Mass. v. Dep't of Educ., 471 U.S. 359, 369--70, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985) (" Burlington" ) ; Florence County Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 12, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993) (" Carter" ). Under the Burlington--Carter test for tuition reimbursement, " the parents will be entitled to reimbursement if (1) the school district's proposed placement violated the IDEA, (2) the parents' alternative private placement was appropriate, and (3) equitable considerations favor reimbursement." T.M., 752 F.3d at 152.

II. Factual Background

The following facts from the administrative record are undisputed unless otherwise noted.

A. P.W.'s Educational History Through the 2011-2012 School Year

P.W., now twelve years old, has been classified by the DOE as a student with a learning disability (Compl. ¶ 19; Ans. ¶ 19) and is thus " a child with a disability" under the IDEA. See 20 U.S.C. § 1401(3)(A)(i). P.W. has been diagnosed with a reading disorder, a disorder of written expression, a mathematics disorder and a learning disorder " not otherwise specified." (Administrative Record, School District Exhibit 7 at 16.)[2] P.W. began attending P.S. 41 in kindergarten, which he repeated. (Impartial Hearing Transcript (" Tr." ) at 385.)

A CSE developed an IEP for P.W. in September 2011 and recommended a general education classroom with Special Education Teacher Services (" SETSS" ) five periods per week for English Language Arts, three of which were to be provided in a special education classroom, and two of which were to be provided in the general

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education classroom. ( See Parents Ex. A (" 2011-2012 IEP" ) at 6.) The September 2011 IEP also recommended two thirty-minute sessions per week of occupational therapy (" OT" ) in a small group. ( Id. at 7) That IEP and program recommendation for the 2011-2012 school year are not at issue in this case. P.W.'s parents, however, remained concerned by what they viewed as his lack of academic progress and arranged for P.W. to be privately evaluated by Dr. Antoinette Lynn in November 2011. ( See Sch. Dist. Ex. 7.) P.W.'s mother met with the school psychologist and principal in February 2012 to discuss Dr. Lynn's evaluation as well as P.W.'s mother's concerns about his academic performance. (Parents Ex. C; Tr. 51-53). Among other things, she was concerned that her child was falling behind as a result of being pulled out of class for SETSS services and that his writing skills were delayed. (Parents Ex. C.)

B. Development of the 2012-2013 IEP

The committee met again in April of 2012 to formulate P.W.'s educational program for the 2012-2013 school year. The committee was composed of plaintiff B.S., who is the child's step-father; Dr. Sherri Victor, the school psychologist; Patricia Belpanno, the child's SETSS provider; Lindsay Dennis-Litinger, his general education teacher; Gloria Degele, his occupational therapist; and Kelly Shannon, P.S. 41's principal. ( See Sch. Dist. Ex. 3 (" 2012-2013 IEP" ) at 14.) The resulting IEP recommended integrated co-teaching (" ICT" ) services in a general educational classroom at a community school for all of P.W.'s academic subjects and OT for thirty minutes twice a week. ( Id. at 7-8.) The IEP also stated short and long-term goals for P.W. in the areas of writing legibility; speed and accuracy in completing reading, writing, and math assignments; solving word problems; and written composition. ( Id. at 4-6.) An ICT classroom is made up of both disabled and non-disabled students taught by a general education teacher and a special education teacher, and includes no more than twelve students with disabilities. See 8 N.Y.C.R.R. § 200.6(g); see also M.W. ex rel. S.W. v. New York City Dep't of Educ., 725 F.3d 131, 144-45 (2d Cir. 2013) (describing ICT classes).

In April 2012, the DOE issued a final notice of recommendation offering P.S. 41 as the specific school placement to implement the IEP recommendations for P.W. for the 2012-2013 school year. (Sch. Dist. Ex. 5.) P.W.'s mother visited a fourth-grade ICT class at P.S. 41 in May 2012 and expressed concerns about the size of the class (28 students) and the levels of special education support students receive. (Parents Ex. D; Tr. 393-97.) Dr. Lynn evaluated P.W. a second time in May 2012 and P.W.'s parents wrote the principal to share the results of the evaluation and inform the principal that in light of their concerns about the proposed placement, they were reserving a spot for P.W. at the Stephen Gaynor School. (Sch. Dist. Ex. 11; Parents Ex. E.) In response to S.W.'s letter, the principal met with S.W. in late July 2012 and discussed the possibility of adding SETSS to the ICT recommendation. (Sch. Dist. Ex. 12; Tr. 405-06.) S.W. wrote to the principal shortly after the meeting stating that she did not believe either ICT or ICT with SETSS would offer P.W. the level of support he required. (Parents Ex. F.)

S.W. wrote to the principal again in mid-August informing her that P.W. would begin the school year at the Stephen Gaynor School and that if after visiting the proposed ICT class in the fall, P.W.'s parents continued to believe that the placement was inappropriate for P.W., they would keep him at the Stephen Gaynor School

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and seek tuition reimbursement. (Parents Ex. H.) After visiting a fourth-grade ICT class at P.S. 41 in September 2012, S.W. reported that she believed it would not provide sufficient special education support and she finally rejected the DOE's proposed IEP and placement. (Parents Ex. I.) P.W.'s parents then requested an impartial hearing on the grounds that the DOE had failed to offer P.W. a FAPE for the 2012-2013 school year. (Sch. Dist. Ex. 1.) They also requested reimbursement for P.W.'s Stephen Gaynor tuition, transportation and related services. ( Id.)

C. Proceedings before the Impartial Hearing Officer

The impartial hearing took place before IHO Tessler on six separate dates between January and May 2013. The DOE presented two witnesses: Dr. Sherri Victor--the school psychologist--and Kelly Shannon, P.S. 41's principal. Dr. Victor testified about the psychoeducational evaluation she had conducted, the IEP meeting that occurred on April 30, 2012, ...


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