United States District Court, S.D. New York
S.B. and E.G., by his parent, S.B., Plaintiffs,
THE NEW YORK CITY DEPARTMENT OF EDUCATION, NEW YORK CITY BOARD OF EDUCATION, and CARMEN FARINA, in her individual and official capacity as Chancellor of the New York City School District, Defendants
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For Plaintiffs: Timothy Edward DeMasi, Esq., Weil, Gotshal & Manges LLP (NYC), New York, NY; Rebecca Caren Shore, Esq., Advocates for Children of New York, Inc, (NYC), New York, NY.
For Defendants: Andrew James Rauchberg, Esq., Assistant Corporation Counsel, New York City Law Department, New York, NY.
OPINION AND ORDER
Shira A. Scheindlin, United States District Judge.
Plaintiffs S.B. (" the Parent" ) and E.G. bring this action against Defendant New York City Department of Education (" DOE" ) seeking review of the September 23, 2013, administrative decision of State Review Officer Justyn P. Bates (" SRO" ), which substantially reversed the decision of Impartial Hearing Officer Mindy G. Wolman (" IHO" ) finding that E.G.'s Individualized Education Plan (" IEP)" was procedurally and substantively inadequate and that the DOE's proposed placement
did not provide a free appropriate public education (" F APE" ) under the Individuals with Disabilities Education Act (" IDEA" ). Plaintiffs challenge the SRO's decision and seek reimbursement for the cost of his enrollment in the Cooke Center for Learning and Development (" Cooke" ), a private school in which the Parent unilaterally enrolled E.G. for the 2012-2013 school year. The parties have filed cross-motions for summary judgment. For the following reasons, plaintiffs' Motion for Summary Judgment is GRANTED in part and DENIED in part and defendants' cross-motion is GRANTED in part and DENIED in part.
II. STATUTORY FRAMEWORK AND APPLICABLE LAW
Congress enacted the IDEA " to ensure that all children with disabilities have available to them a [FAPE]" and " to ensure that the rights of children with disabilities and parents of such children are protected."  States receiving federal funding under the IDEA are required to make a FAPE available to all children with disabilities residing in the state. " To ensure that qualifying children receive a FAPE, a school district must create an [IEP] for each such child."  The IEP " 'describes the specially designed instruction and services that will enable the child to meet' stated educational objectives and is reasonably calculated to give educational benefits to the child." 
New York has assigned responsibility for developing IEPs to local Committees on Special Education (" CSEs" ). The CSE is comprised of the student's parents, a regular or special education teacher, a school psychologist, a school district representative, an individual who can interpret the instructional implications of evaluation results, a school physician, and a parent of another student with a disability. The CSE " examine[s] the student's level of achievement and specific needs and determine[s] an appropriate educational program." 
The CSE does not select the specific school in which the student will be placed, and therefore the IEP does not specify a particular school. Rather, the DOE provides " general placement information in the IEP, such as the staffing ratio and related services, and then convey[s] to the parents a final notice of recommendation, or FNR[,] identifying a specific school at a later date. The parents are then able to
visit the placement before deciding whether to accept it." 
If a parent believes the IEP does not comply with the IDEA, the parent may file a due process complaint with the DOE, requesting an impartial hearing. Districts are then permitted a thirty-day " resolution period" to address any alleged deficiencies without penalty. Once the resolution period has run, a parent may continue to a due process administrative proceeding before an IHO. This decision may be appealed to an SRO. Either party then has the right to have the SRO's decision reviewed by bringing a civil action in state or federal court.
Parents who believe that their child has been denied a FAPE may unilaterally place their child in an appropriate private school and seek tuition reimbursement from the state through a due process administrative proceeding. Under the Burlington-Carter test, a school district will be required to reimburse the parents for the costs of a private program only 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." 
The first prong of the Burlington-Carter test requires a court to review both the procedural and substantive adequacy of the underlying decision. The procedural inquiry examines " 'whether the state has complied with the procedures set forth in the IDEA.'"  The substantive inquiry asks whether the IEP was " 'reasonably calculated to enable the child to receive educational benefits.'"  Procedural violations entitle the parents to reimbursement " only if they 'impeded the child's right to a FAPE,' 'significantly impeded the parents' opportunity to participate in the decision-making process,' or 'caused a deprivation of educational benefits.'"  " Multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not."  " Substantive inadequacy automatically entitles the parents to reimbursement." 
In New York, " the local school board bears the initial burden of establishing the validity of its plan at a due process hearing."  If a court determines that either a procedural or substantive inadequacy
denied the child a FAPE, the parents bear the burden of demonstrating that their alternative private placement was appropriate; that is, whether it is " 'reasonably calculated to enable the child to receive educational benefits.'"  However, parents are " not required . . . to prove that the 'private placement furnishes every special service necessary.'"  Finally, the parents must demonstrate that the equities favor reimbursement. " Important to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA." 
A district court must first determine the scope of the issues properly before it for review. " The party requesting the due process hearing shall not be allowed to raise issues at the due process hearing that were not raised in the notice . . . unless the other party agrees otherwise."  Thus, the scope of the inquiry of the IHO -- and therefore of the SRO and a reviewing court -- is limited to matters raised in the hearing request or agreed to by the DOE. However, the Second Circuit has clarified that " the waiver rule is not to be mechanically applied" and the " key to the due process procedures is fair notice and preventing parents from 'sandbag[ging] the school district' by raising claims after the expiration of the resolution period."  The IDEA does not require " that alleged deficiencies be detailed in any formulaic manner" and " the waiver rule limits only what may be raised at the due process hearing."  Thus, " arguments not directly raised in a Due Process Complaint [are] not foreclosed [if] (1) the Due Process Complaint 'provide[s] fair notice to the Department of' the argument at issue; (2) 'both the IHO and SRO reach the issue on the merits, giving [the federal court] a record for review'; or (3) the argument goes to 'the heart of this dispute.'" 
A school district is not required to designate a specific school in an IEP, but nevertheless may not assign a child to a school that cannot satisfy the IEP's requirements. However, in assessing whether there has been a substantive violation," [b]oth parties are limited to discussing the placement and services specified in the written plan and therefore reasonably known to the parties at the time of the placement decision."  " [A]n IEP must be evaluated prospectively as of the time it was created. Retrospective evidence that materially alters the IEP is not permissible."  Further, " [s]peculation that the school district will not adequately adhere to the IEP is not an appropriate basis for unilateral placement." 
There has been some disagreement among district courts in implementing the Second Circuit's holding in R.E. v. New York City Department of Education. Some courts have held that any evidence regarding the proposed placement should be disregarded as " retrospective."  Other courts have allowed such evidence " if the alleged defects were reasonably apparent to either the parent or the school district when the parent rejected the placement, regardless of whether [the student] ever actually enrolled . . . ."  All courts appear to agree that a challenge to a proposed placement will be successful where the evidence establishes that the placement would be unable to satisfy the IEP's requirements. It seems clear, however, that in order to determine if a proposed placement will be unable to comply with a student's IEP, evidence regarding the proposed placement must be considered -- a categorical ban on any evidence relating to the proposed placement would frustrate that inquiry and allow a school district " carte blanche" to assign a child to a school that could not fulfill the requirements of that child's IEP. Moreover, this is entirely consistent with the holding of R.E. v. New York City Department of Education, which concluded:
We reject . . . a rigid " four corners" rule prohibiting testimony that goes beyond the face of the IEP. While testimony that materially alters the written plan is not permitted, testimony may be received that explains or justifies the services listed in the IEP. . . . For example, . . . if a student is offered a staffing ratio of 6:1:1, a school district may introduce evidence explaining how this structure operates and why it is appropriate.
Thus, while the IEP must be evaluated prospectively and cannot be altered by retrospective testimony about what a school district might have done, testimony explaining how the IEP would be implemented is sufficiently prospective and may be considered by a court.
In the district court, " IDEA actions generally are resolved on summary judgment."  Summary judgment in an IDEA action " is in substance an appeal from an administrative determination, not a summary judgment motion"  and " involves more than looking into disputed issues of fact; rather, it is a pragmatic procedural mechanism for reviewing administrative decisions."  Using a preponderance of the evidence standard, the district court inquires " whether the administrative record, together with any additional evidence, establishes that there has been compliance with IDEA's processes and that the child's educational needs have been appropriately addressed." 
The district court should not substitute its own notion of sound educational policy for the determinations by school authorities. Instead, the court should give " due weight to the administrative proceedings, mindful that the judiciary generally lacks the specialized knowledge and experience necessary to resolve persistent and difficult questions of educational policy."  This standard of review " requires a more critical appraisal of the agency determination than clear-error review but nevertheless falls well short of complete de novo review." 
When the decisions of an IHO and an SRO conflict, the district court should generally defer to the SRO's decision as the " final decision of the state authorities,"  particularly when the SRO's opinion is thorough and well-reasoned. However, when
the district court appropriately concludes that the SRO's determinations are insufficiently reasoned to merit that deference, and in particular where the SRO rejects a more thorough and carefully considered decision of an IHO, it is entirely appropriate for the court, having in its turn found the SRO's conclusions unpersuasive even after appropriate deference is paid, to consider the IHO's analysis, which is also informed by greater educational expertise than that of judges.
Courts should defer to the IHO when considering an issue that the SRO did not reach.
IDEA has a well-established exhaustion requirement. Claims must be brought in an administrative proceeding before they may be brought in federal court. However, the Second Circuit held that the rules regarding waiver should not be " mechanically applied" and that the " key" to the rule is " fair notice and preventing parents from sandbagging the school district by ...