United States District Court, S.D. New York
J.S. & L.S., Plaintiffs,
NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant
For J. S., L. S., On behalf of D.S., Plaintiffs: Laura Davis, Yisroel Schulman, LEAD ATTORNEYS, New York Legal Assistance Group, New York, NY.
For New York City Department Of Education, Defendant: William Beecher Scoville, Jr., LEAD ATTORNEY, Lesley Berson Mbaye, New York City Law Department, New York, NY.
OPINION & ORDER
Paul A. Engelmayer, United States District Judge.
Plaintiffs JS and LS (the " Parents" ), individually and on behalf of their minor son, DS, bring this action against the New York City Department of Education (" DOE" ), pursuant to the Individuals with Disabilities Education Improvement Act (" IDEA" ), 20 U.S.C. § 1400 et seq. and Article 89 of the New York State Education Law, N.Y. Educ. Law § 4401 et seq. The Parents seek review of a March 5, 2014 administrative decision of the State Review Officer (" SRO" ) that (1) upheld the decision of the Impartial Hearing Officer (" IHO" ) that the proposed Individualized Education Program (" IEP" ) did not deny DS a Free Appropriate Public Education (" FAPE" ), and (2) vacated the IHO's award of partial tuition to the Parents, which had been granted on the ground that the DOE had had the duty to prove, but failed to do so, that the assigned school could properly implement the IEP.
The parties have now cross-moved for summary judgment. For the following reasons, the Court agrees with the SRO and the IHO that the IEP did not deny DS a FAPE. The Court further agrees with the SRO that the DOE had no obligation to establish the appropriateness of DS's specific brick-and-mortar placement. Accordingly, the Court grants the DOE's motion for summary judgment and denies the Parents' motion for summary judgment.
A. Factual Background
DS is a 15-year-old student diagnosed with Tourette syndrome and generalized anxiety disorder. IHO Tr. 238. DS is of average intelligence. IHO Tr. 21. Despite his disabilities, as of June 2012, he was functioning at grade level in reading and one grade level behind in math. IHO Tr. 108. During the sixth and seventh grades, i.e., the 2010-2011 and 2011-2012 school years, DS attended the Lang School (" Lang" ), a private school for students who are " twice exceptional," meaning they are both " academically promising" and " have learning challenges such as ADHD, Dyslexia, [or] anxiety." IHO Tr. 329. At Lang, DS's class consisted of 10 students and two teachers, one general education teacher and one special education teacher. IHO Tr. 159, 162-63. For the 2010-2011 and 2011-2012 school years, the DOE fully funded DS's tuition at Lang. Parents Br. 2.
On May 29, 2012, the Parents signed an enrollment contract with Lang for the 2012-2013 school year, DS's eighth-grade year. Ex. F, at 4. This contract had an " escape clause" so that the Parents could withdraw if DS received an appropriate public school placement from the DOE. Id. at 2.
B. Committee on Special Education
On June 7, 2012, the DOE held a meeting of the Committee on Special Education (" CSE" ) to formulate DS's annual IEP for the 2012-2013 school year, as required by the IDEA. See 20 U.S.C. § 1414. Present at the CSE meeting were: Michelina Leone-Flick, a DOE representative and social worker; Lindsey Dakin, a DOE special education teacher; Craig Czarnecki, a DOE school psychologist; Dana Kirkwood, a special education teacher at Lang; LS, DS's mother; Adrienne Schorr, a parent representative from an education advocacy organization called Susan Luger Associates; and Zaida Cordero, a parent member. Ex. 8, at 9. At the meeting, Kirkwood and LS provided information about DS. IHO Tr. 282-83, 356. Specifically, Kirkwood explained that DS is " extremely anxious," " become[s] frustrated when he [is] faced with a challenge," and " requires a lot of one-on-one" reinforcement and motivation. IHO Tr. 283. LS " repeatedly talked about [DS's] anxiety," IHO Tr. 356, and told the CSE that DS does not do well in large groups, IHO Tr. 381. The meeting minutes taken by Leone-Flick reflect that the group discussed DS's " challenges" including anxiety, low motivation, and difficulty completing assignments with appropriate care, and his need for " coax[ing]," " motivation," " reminders," " example[s]," " remediation" and " individualized homework" in math, and other " support." Ex. 7, at 2-3.
The CSE also considered a number of reports on and evaluations of DS, including: a fall 2011 through winter 2012 progress report from Lang, Ex. 6; a February 2012 psycho-educational evaluation, Ex. 3; a February 2012 social history update, Ex. 5; and a March 2012 classroom observation report, Ex. 4. The psycho-educational evaluation included a report from DS's teacher at Lang, which explained that DS has an " adequate" level of attention, but he " can be somewhat anxious," " has been observed moving away from noise," and " tends to shut down when frustrated." Ex. 3, at 1. The progress report from Lang indicated that DS needs significant one-on-one support including prompts to check his work, support in organizing his ideas, and remedial sessions in math. Ex. 6, at 2-3, 5. The progress report also noted that DS sometimes can complete his work with minimal prompting and that DS's goals include working more independently. Id. at 2, 10-11.
To supplement these documents, LS brought an independent psycho-educational evaluation that had been conducted in early 2011, Ex. B; the CSE, however, declined to review or consider it, IHO Tr. 378-79. The CSE also declined to conduct a functional behavior assessment (" FBA" ) of DS in advance of the meeting and did not develop a behavior intervention plan (" BIP" ). Ex. 8, at 8.
Based on the information provided before and during the meeting, the CSE recommended that DS be placed in an Integrated Co-Teaching (" ICT" ) class for the 2012-2013 school year. Ex. 8, at 4-5, 7. An ICT class is " an academically oriented class setting that contains students that are identified as having a special education need, and have an IEP developed for them, as well as students that are . . . non-disabled." IHO Tr. 38. An ICT class has around 25 students, of whom no more than 12 can be students with an IEP. IHO Tr. 38, 113; N.Y. Comp. Codes R. & Regs. tit. 8, § 200.6(g). Each ICT class has two teachers--one general education teacher who works with all students, and one special education teacher who provides additional instruction and support for the students with IEPs. IHO Tr. 38. The goal of the ICT program is to promote " fast-paced instruction" by integrating disabled students with " higher functioning" non-disabled students who can " support students who are struggling." IHO Tr. 113-14.
Czarnecki explained that the CSE recommended an ICT placement because DS " would need more support than would just be provided in a typical general classroom environment," but " based on his skills and abilities, he should be in an academically focused setting that would appropriately challenge him and give him opportunities for working on the appropriate curriculum." IHO Tr. 38-39. Dakin confirmed that she understood DS's particular needs and that, based on her experience teaching ICT classes, the two teachers would provide those accommodations. See IHO Tr. 112-13, 116, 144, 154. In fact, she believed that DS was " a very typical candidate for an ICT class" and that other students in an ICT class " tend to need a lot of the similar strategies that [DS] benefitted from." IHO Tr. 115-16.
LS objected, during the CSE meeting, that a class with 25 students and two teachers would be " a disaster" for DS because large groups trigger his anxiety. IHO Tr. 381. She therefore requested a 12:1:1 or 12:1 placement. IHO Tr. 381. The CSE considered placing DS in a smaller class, but those classes are typically comprised of " lower functioning" students who may also have " behavioral issues." IHO Tr. 145-46. Accordingly, the CSE determined that DS's " academic progress would be limited" by the " much slower pace" in that setting, IHO Tr. 117, and rejected the 12:1:1 or 12:1 placement as " too restrictive to meet [DS's] goals," Ex. 8, at 8.
On August 15, 2012, the DOE sent the Parents notice of DS's placement, for the 2012-2013 school year, at the Henry Street School for International Studies (" H292" ). Ex. 10.
On August 29, 2012, LS sent a letter to the DOE informing the agency that she had been unable to arrange a meeting at H292 and would therefore be unilaterally enrolling DS at the Lang School and seeking tuition reimbursement from the DOE. Ex. 11. In late August, 2012, LS was able to tour H292. IHO Tr. 384-85. She visited H292 a second time in mid-September, when school was in session. IHO Tr. 388. On September 4, 2012, LS sent another letter, which informed the DOE that she had visited H292 and had met with the assistant principal, who, she asserted, was " adamant" that H292 would not be an appropriate placement for DS. Ex. M. Specifically, LS alleged, the assistant principal had told her that students in the ICT class were predominantly non-native English speakers, so their language skills would be weaker than DS's, and that the common areas in the school were very crowded and noisy due to the high number of students in the building. Id. LS's letter reiterated that the Parents would be placing DS at Lang for the 2012-2013 school year. Id. LS later testified that the assistant principal told her that the school was a " dumping ground for special ed students" and that he " would run the other way." IHO Tr. 389-90. The assistant principal who met with LS, however, denied making these comments and attested that, in fact, only 35% of the H292 student body is comprised of English as a second language (" ESL" ) students. IHO Tr. 423-26.
C. Due Process Complaint and Impartial Hearing
On April 22, 2013, DS's Parents, through an advocate at Susan Luger Associates, filed a due process complaint. They challenged the CSE's recommendation on the grounds that: (1) the Parents had been denied a meaningful opportunity to participate; (2) goals had not been developed at the meeting; (3) the CSE had denied DS transportation accommodations; (4) the CSE had failed to conduct an FBA; (5) the CSE had not been duly constituted; (6) the CSE had failed to perform adequate and appropriate evaluations; (7) the CSE had predetermined its recommendation and failed to discuss other programs; (8) the ICT program does not offer adequate or appropriate instruction, support, and supervision; and (9) the proposed placement school, H292, cannot implement the IEP. Ex. A.
An impartial hearing began on June 6, 2013 and concluded on September 13, 2013. IHO Tr. 1,417. At that hearing, the IHO, Sharyn Finkelstein, heard testimony from: Czarnecki, the DOE school psychologist who participated in the CSE; Dakin, the DOE special education teacher who participated in the CSE; Joanne Chiu, a special education teacher at the Lang School; Samara Blei, the head psychologist at Lang; Kirkwood, a special education teacher at Lang who participated in the CSE; Micaela Bracamonte, the head of Lang; Schorr, a parent advocate who attended the CSE meeting; LS, DS's mother; and Edgar Lin, the former assistant principal at H292.
Based on this testimony and the exhibits entered into evidence by both parties, the IHO found that the ICT class had been an appropriate recommendation. IHO Dec. 12. However, she held that the DOE " did not put on any witnesses with respect to the recommended school" and therefore failed to satisfy its burden " to establish that the recommended placement could implement the IEP." Id. at 13. The IHO further held that the Lang School was an appropriate unilateral placement for DS. Id. at 15. Weighing the equities, the IHO awarded DS's Parents partial tuition ($25,000) rather than full tuition ($49,500) because, she found, LS " had made up her mind prior to the CSE meeting that [DS] would be attending the Lang School and that she would be requesting an impartial hearing for tuition," and so LS did not go into the CSE meeting " with an open mind." Id. at 16.
D. SRO Appeal
The DOE appealed the IHO's decision that it had not provided DS with a FAPE, and the Parents cross-appealed the IHO's decision to award only partial tuition. The DOE argued that the IEP, as written, was adequate, and that, inasmuch as DS had never attended the assigned school, the DOE had not been required to defend that specific brick-and-mortar placement. The DOE asserted that challenges to an assigned school are " speculative and inappropriate when the student had never attended the recommended placement." The Parents, for their part, argued that the IHO, in resolving whether the ICT was an appropriate recommendation, improperly disregarded testimony from the Parents' witnesses and incorrectly analyzed the CSE's procedural defects. Further, the Parents argued that they were entitled to an award of full tuition because they fully cooperated with the DOE.
The SRO, Justyn Bates, affirmed the IHO's decision in part and reversed in part. He upheld the IHO's finding that the ICT program had been an appropriate recommendation on the grounds that: (1) the lack of a general education teacher at the CSE meeting was a procedural violation but did not deny DS a FAPE; (2) the CSE had considered sufficient evaluative information; (3) although the annual goals were written out after the meeting, the substance of those goals had been discussed during the meeting; (4) the CSE had not been required to conduct an FBA because the record did not indicate that DS exhibited behaviors that interfered with his learning or that of other students; and (5) the ICT program recommendation had been reasonably calculated to enable DS to receive educational benefits. SRO Dec. 9-23. As to the specific placement, the SRO held that the validity of a recommendation is to be judged " on the face of the IEP," not on speculative evidence about how the IEP might have been implemented, and that it " would be inequitable to allow the Parents ...