M.O. and G.O., individually and on behalf of D.O., a minor, Plaintiffs-Appellants,
NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant-Appellee
Argued March 6, 2015.
Appeal from a judgment of the United States District Court for the Southern District of New York (Cedarbaum, J.), affirming a State Review Officer's determination to deny reimbursement for a unilateral private placement under the Individuals with Disabilities Education Act. We hold that the State Review Officer correctly determined that Defendant-Appellee New York City Department of Education provided a free appropriate public education. The judgment of the district court is therefore AFFIRMED. Because the decisions of the district court and State Review Officer could, however, be interpreted as requiring a child to attend physically a proposed placement school before challenging that school's ability to implement the child's individualized education plan, we further clarify that our decision in R.E. v. N.Y.C. Dep't of Educ., 694 F.3d 167 (2d Cir. 2012), imposes no such requirement.
LAWRENCE D. WEINBERG, Bloomfield, NJ, for Plaintiffs-Appellants.
MARTA SOJA ROSS, for Zachary W. Carter, Corporation Counsel of the City of New York, New York, NY, for Defendant-Appellee.
Before: CALABRESI and HALL, Circuit Judges, and RAKOFF, District Judge.[*]
This Individuals with Disabilities Education Act (" IDEA" ) case concerns a reimbursement action for a unilateral private placement in which Plaintiffs-Appellants M.O. and G.O. challenge the adequacy of the public school proposed by Defendant-Appellee New York City Department of Education (" DOE" or " the school district" ) for the placement of their child during the 2011-2012 school year.
I. Statutory and Regulatory Background
The IDEA requires states receiving federal funds to " provide 'all children with disabilities' a 'free appropriate public education' ('FAPE')." Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 376 (2d Cir. 2014) (quoting 20 U.S.C. § 1412(a)(1)(A)). " A FAPE consists of special education and related services tailored to meet the unique needs of a particular child, which are reasonably calculated to enable the child to receive educational benefits . . . ." Reyes ex rel. R.P. v. N.Y.C. Dep't of Educ., 760 F.3d 211, 214 (2d Cir. 2014) (citations and internal quotation marks omitted). " To ensure that qualifying children receive a FAPE, a school district must create an individualized education program ('IEP') for each such child." R.E. v. N.Y.C. Dep't of Educ., 694 F.3d 167, 175 (2d Cir. 2012) (citing 20 U.S.C. § 1414(d); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195, 197 (2d Cir. 2002) (describing the IEP as the " centerpiece" of the IDEA system)). " The IEP is 'a written statement that sets out the child's present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives." R.E., 694 F.3d at 175 (quoting D.D. ex rel. V.D. v. N.Y.C. Bd. of Educ., 465 F.3d 503, 507-08 (2d Cir. 2006)). The IEP " must be likely to produce progress, not regression, and must afford the student with an opportunity greater than mere trivial advancement. However, it need not furnish every special service necessary to maximize each handicapped child's potential." M.H. v. N.Y.C. Dep't of Educ., 685 F.3d 217, 224 (2d Cir. 2012) (citations, internal quotation marks, and alterations omitted).
The State of New York " has assigned responsibility for developing appropriate IEPs to local Committees on Special Education ('CSEs')." Id. (citation, internal quotation marks, and alterations omitted); N.Y. Educ. Law § 4402(1)(b)(1). " CSEs are comprised of members appointed by the local school district's board of education, and must include the student's parent(s), a regular or special education teacher, a school board representative, a parent representative, and others." R.E., 694 F.3d at 175 (citing N.Y. Educ. Law § 4402(1)(b)(1)(a)). In developing a particular child's IEP, " the CSE must  be mindful of the IDEA's strong preference for 'mainstreaming,' or educating children with disabilities '[t]o the maximum extent appropriate' alongside their non-disabled peers." Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007) (quoting 20 U.S.C. § 1412(a)(5)); see also Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 132 (2d Cir. 1998).
" Parents who . . . believe that a FAPE is not being provided to their child may unilaterally enroll the child in a private school and seek tuition reimbursement from the school district" by filing what is known as a " due process complaint." Hardison, 773 F.3d at 376 (citations and internal quotation marks omitted); N.Y. Educ. Law § 4404(1); 20 U.S.C. § 1412(a)(10)(C)(ii). The due process complaint may challenge " any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education." 20 U.S.C. § 1415(b)(6)(A). " Filing the complaint triggers an administrative procedure by which the board of education appoints an Independent Hearing Officer ('IHO') who conducts a formal hearing and fact-finding." Hardison, 773 F.3d at 376; N.Y. Educ. Law § 4404(1). The decision of an IHO may be appealed to a State Review Officer (" SRO" ), Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379-80, 74 F.App'x 137 (2d Cir. 2003) (citing N.Y. Educ. L. § 4404(2); 20 U.S.C. § 1415(g)), and an SRO's decision may be challenged by filing a civil action in state or federal court, Hardison, 773 F.3d at 376 (citing N.Y. Educ. Law § 4404(3); 20 U.S.C. § 1415(i)(2)(A)).
II. Facts and Procedural History
D.O., the son of M.O. and G.O, is a twelve-year-old child with a speech or language impairment. D.O. attended second grade at P.S. 41, in an integrated co-teaching (" ICT" ) class with one general education teacher and one special education teacher, during the 2010-2011 school year. He had transferred to P.S. 41 from a private Catholic school in September 2010. In December 2010, D.O.'s teachers at P.S. 41 contacted M.O. and G.O. to discuss concerns over D.O.'s educational progress and the need for a re-evaluation of ...