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Z.H. v. New York City Department of Education

United States District Court, S.D. New York

May 28, 2015

Z.H., individually and on behalf of Z.H., a child with a disability, Plaintiff,


P. KEVIN CASTEL, District Judge.

Plaintiff Z.H. (the "Parent") brings this action on behalf of her daughter Z.H. (the "Student") against the New York City Department of Education (the "Department") under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq. ("IDEA").

The Parent contends the Student, who has been diagnosed with autism, is being denied access to a Free and Appropriate Public Education ("FAPE"). The State Review Officer ("SRO"), in reversing the findings of an Impartial Hearing Officer ("IHO"), concluded that the Department could not lawfully be ordered to place the student in a yet-to-be-identified, nonapproved, private school. The SRO concluded that, although a parent may place a student who has been denied a FAPE in a non-approved school and then seek tuition reimbursement, New York law does not allow for an order directing a school district to place a child in a school that has not been approved by the Commissioner of Education.

Both sides have moved for summary judgment pursuant to Rule 56, Fed.R.Civ.P. (Docket # 10, 15.) The Court affords significant deference to the decision of the SRO, which reflected a close understanding of the state's educational policies and federal authorities governing IDEA. The Court agrees that, although a school district may be required to reimburse tuition for a non-approved school as a remedy for the failure to provide a FAPE, it may not be compelled to contract with a non-approved school in order to provide a FAPE. As explained, there is a principled distinction between the steps that a school district must take to provide a FAPE and the remedy afforded to a parent in the event that a school district denies a student a FAPE. The Department's motion for summary judgment is therefore granted, and the Parent's motion is denied.


The relevant facts in this action are undisputed. The Parent resides in Kings County, New York. (Pl. 56.1 ¶ 1; Def. 56.1 Resp. ¶ 1.) The Student is a child with a disability as defined by IDEA, 20 U.S.C. § 1401(3)(A). (Pl. 56.1 ¶ 2; Def. 56.1 Resp. ¶ 2.) The Parent meets the statutory definition of a parent under IDEA, 20 U.S.C. § 1401(23). (Pl. 56.1 ¶ 3; Def. 56.1 Resp. ¶ 3.)

The Student was born in 2001, and the Department classifies her as a student with autism. (Pl. 56.1 ¶ 4; Def. 56.1 Resp. ¶ 4; Sterne Dec. ¶ 13.) Prior to that designation, she was classified as emotionally disturbed. (Sterne Dec. ¶ 70.) The Student also has a disorder called Ehlers-Danlos Syndrome, which causes hyper-mobility in her joints and makes them vulnerable to dislocation. (Sterne Dec. ¶ 20-21.)

The Student has had numerous behavioral problems in the classroom. She has fled from schools, and on one occasion, had an altercation on a school bus that resulted in a police officer handcuffing her arm, resulting in injury. (Sterne Dec. ¶¶ 35, 39.) Because the Student has Ehlers-Danlos Syndrome, she cannot be restrained without risking her health. (Sterne Dec. ¶¶ 39, 44, 47.) She has a history of volatile conduct at school, including "severe tantrums and refusals to cooperate, " "aggressive, destructive behaviors, explosive meltdowns, elopement, and school refusals." (Sterne Dec. ¶¶ 25, 48.) She once leaped out of a first-floor window, has jumped from a school bus, and has destroyed a bulletin board and books. (Sterne Dec. ¶ 64.) During one flight from school, she was found walking on a frozen pond. (Sterne Dec. ¶ 71.) The Student has been suspended multiple times. (Sterne Dec. ¶ 25.)

In January 2013, the Parent concluded that the Student's behavior was not improving and that she was not being challenged academically, so the Parent withdrew the Student from the Orchard School in Yonkers, which she had been attending from third through sixth grades. (Sterne Dec. ¶¶ 22-23.) In April 2013, the Department provided the Student with in-home instruction services, but the Student exhibited negative behaviors, which her home instructor struggled to manage. (Sterne Dec. ¶¶ 27-28.)

At the beginning of the 2013-14 school year, the Student did not have a school placement. (Sterne Dec. ¶ 29.) She began attending the Walt Whitman School ("Whitman") in November 2013, but fled the premises on her third day of attendance, and did not return until January. (Sterne Dec. ¶¶ 30-38.) The day after her return, the Student had the school bus altercation that resulted in her handcuffing. (Sterne Dec. ¶ 39.) At around the same time, Whitman called the Parent and told her that the Student had been accepted for placement in a private school, Woodward, but the Parent rejected the placement. (Sterne Dec. ¶¶ 40-43.)

In a letter dated August 7, 2013, and an amended letter dated September 19, 2013, the Parent requested an impartial due process hearing, as provided for by IDEA and New York law. (Pl. 56.1 ¶ 5; Def. 56.1 Resp. ¶ 5; Sterne Dec. ¶ 8.) The Parent claimed that the District had denied the student a FAPE. (Sterne Dec. ¶ 10.) She claimed that the Student had been improperly classified; that the Department did not perform necessary evaluations in the 2011-12 and 2012-13 school years; that the Student's educational placement was inappropriate; and that the District denied the Parent meaningful participation in the development of an Individualized Education Program ("IEP").[1] (See Admin. Record, Parents' Ex. Q.) The Parent sought a variety of relief, including annulment of the Student's IEP and an order directing the Committee on Special Education to build a new program for Student. (Sterne Dec. ¶ 10.)

Michael Lazan, Esq. presided as IHO over a due process hearing initiated at the Parent's request. (Pl. 56.1 ¶ 6; Def. 56.1 Resp. ¶ 6; Sterne Dec. ¶ 9.) On December 4, 2013 and January 29 and 30, 2014, the IHO heard testimony from eight witnesses, including school principals and administrators, psychologists and the Parent. (Pl. 56.1 ¶¶ 7-8; Def. 56.1 Resp. ¶ 7-8; Sterne Dec. ¶ 11.) The IHO issued a written decision on April 24, 2014 (the "IHO Decision"), and corrected decisions on April 30 and May 12, 2014. (Pl. 56. ¶ 9; Def. 56.1 Resp. ¶ 9.)

Lying at the heart of the present action is the IHO's order that the Student should be referred to the Central Based Support Team ("CBST"), "which will consider all options for the Student's placement, including non-approved' non-public schools."[2] (IHO Dec. at 9.) The IHO Decision observed that existing placements had been inappropriate for the Student, and that the Student "is ultimately very difficult to instruct and very difficult to place." (IHO Dec. at 8.) It stated that courts have "wide discretion" to ensure that students receive a FAPE, and "agree[d] with the parent that any school search should include non-public schools that are not state-approved...." (IHO Dec. at 7.)

The Department appealed the IHO Decision to the SRO, arguing that the IHO did not have the authority to order the Department to consider placing the Student in a non-approved, non-public school. (Pl. 56.1 ¶ 10; Def. 56.1 Resp. ¶ 10.) On June 30, 2014, the SRO, Justyn P. Bates, issued a 10-page written decision, reported as Appeal No. 14-077 (the "SRO Decision"), which reversed the portion of the IHO Decision concerning the Student's placement, concluding that the IHO did not have authority to direct the Department to identify a non-approved, nonpublic school as a potential placement. (SRO Dec. at 6-10.) The SRO Decision noted that under New York law, school districts were authorized to contract only with non-public schools that had been approved by the Commissioner of Education. (SRO Dec. at 7, citing N.Y. Educ. L. § 4402(b)(1), (2); Antkowiak v. Ambach, 838 F.2d 635, 640-41 (2d Cir. 1988).) The SRO Decision also observed that although a parent may unilaterally place a student in a non-approved, non-public school, and then seek reimbursement or direct funding from the District, there is no legal basis to direct the District to prospectively identify a non-approved placement. (SRO Dec. at 8-9.)

Only July 11, 2014, the Parent commenced this action on behalf of the Student. (Docket # 1.) The Complaint seeks to vacate the SRO Opinion and to reinstate the ...

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