United States District Court, S.D. New York
M.B., individually and on behalf of her minor child, M., Plaintiff,
THE NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant.
MEMORANDUM OPINION AND ORDER
Taylor Swain United States District Judge
M.B., the mother of M., a child with cerebral palsy, brought
this case individually and on behalf of M. under the
Individuals with Disabilities Education Act, 20 U.S.C.
§§ 1400 et seq. (the “IDEA”),
as an appeal from an administrative determination finding
that Defendant, the New York City Department of Education
(the “DOE”), had provided M. with a free and
appropriate public education (a “FAPE”) as
required by the IDEA. This Court has jurisdiction of this
action pursuant to 28 U.S.C. § 1331 and 20 U.S.C. §
sought placement of M. in a State-approved specialized school
and, when M. was not placed in that school, filed a due
process complaint with the DOE. Following an administrative
hearing, an Impartial Hearing Officer (“IHO”)
found that the DOE had denied M. a FAPE and ordered that M.
be placed in a specialized school. The DOE petitioned for
further review by a State Review Officer (“SRO”)
of the New York State Education Department's Office of
State Review, and the SRO reversed the IHO's decision,
finding that the DOE did provide M. with a FAPE and denying
Plaintiff's requested placement. Plaintiff subsequently
brought this case seeking review and reversal of the
parties have cross-moved for summary judgment. (See
docket entries no. 46 & 49.) Plaintiff seeks a
declaration that the DOE denied M. a FAPE, and an order
requiring the DOE to place M. in a State-approved specialized
school, the Henry Viscardi School. Defendant seeks affirmance
of the SRO's decision and dismissal of the Complaint. The
Court has reviewed thoroughly all of the parties'
submissions, including the administrative record, and has
considered the parties' presentations at oral argument
and in supplemental briefing thereafter. For the reasons set
forth below, Plaintiff's motion is denied,
Defendant's motion is granted, and the decision of the
SRO is affirmed.
IDEA's Statutory Framework
IDEA requires all states receiving federal funds “to
provide ‘all children with disabilities' a
‘free appropriate public education.'”
Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d
105, 107 (2d Cir. 2007) (quoting IDEA, 20 U.S.C. §
1400(d)(1)(A)). The parties do not dispute that M., who has
been diagnosed with cerebral palsy, is a child with a
disability. The IDEA requires that, for each child with a
disability, like M., the appropriate state or local
educational agency must develop an “individualized
education program” (“IEP”). 20 U.S.C.
§ 1414(d). In New York, IEPs are developed by local
“Committees on Special Education”
(“CSEs”) in conjunction with the parents of the
disabled student. N.Y. Educ. L. § 4402(1)(b)(1).
have a right under the IDEA to present a complaint regarding
the identification, evaluation, or placement of their child
through the IEP process. 20 U.S.C. § 1415(b)(6)(A).
Parents who disagree with the IEP developed by the CSE have a
right under the IDEA to an “impartial due process
hearing” before an IHO. Id. §
1415(f)(1)(A); N.Y. Educ. L. § 4404(1)(a). The decision
of the IHO may be appealed by either party to an SRO, who
conducts an independent review of the factual findings and
decision of the IHO. 20 U.S.C. § 1415(g); N.Y. Educ. L.
§ 4404(2). Either party may then challenge the SRO's
decision in a federal district court, which is empowered by
the IDEA to “receive the records of the administrative
proceedings, ” to “hear additional evidence,
” and to “grant such relief as the court
determines is appropriate” based on “the
preponderance of the evidence” presented. 20 U.S.C.
§ 1415(i)(2)(C); see also N.Y. Educ. L. §
following summary of facts relevant to the instant motion
practice is drawn primarily from the administrative record.
M. is a
student with cerebral palsy who was born in 2005. (IHO Ex.
11, at 1, 2.) M. faces both physical and cognitive challenges
in school. She navigates her school using a walker and a
wheelchair. (IHO Ex. 11, at 2; Ex. 14, at 1.) In the school
year before the one at issue in this case (the 2012-13 school
year), M. was in second grade, and had been placed in an
integrated co-teaching (“ICT”) class.
32-33, 82, 149-50.) An ICT class includes children with
disabilities as well as typically developing children and is
co-taught by a general education teacher and a special
education teacher. (Id.)
2, 2013, M.'s CSE met to develop an IEP for the 2013-14
school year. (IHO Ex. 10, at 1, 13-14.) The May CSE
recommended that M. continue in an ICT classroom for her
general education, and that M. have the services of a
full-time, 1:1 paraprofessional as well as additional
physical and speech therapy sessions and counseling. (SRO
Dec., at 3.)
letter dated May 2, 2013, M.'s parents requested an
updated evaluation and requested that the CSE “consider
another placement” for M. (IHO Ex. 13.) M.'s
parents provided their consent for the DOE to evaluate M.,
and an evaluation was conducted over three dates in May 2013.
(IHO Ex. 14 & 15.)
20, 2013, the CSE reconvened to consider the results of the
May evaluation. (SRO Dec. at 3.) The June CSE modified
M.'s IEP, recommending a “12:1:1 classroom”
(that is, twelve students to one teacher and one
paraprofessional), and specified that M.'s 1:1
paraprofessional should assist with mobility needs. (IHO Ex.
11, at 8-9.) The June CSE also modified aspects of M.'s
IEP relating to supplementary services and programs that M.
would receive. (See generally and compare IHO Ex. 11
(June IEP) with IHO Ex. 10 (May IEP).) The June CSE
noted parental concerns about M.'s ability to navigate
the school building with her walker, and the parents'
concern that M. required a “full time special education
school.” (IHO Ex. 11 at 2-3.)
parents submitted a due process complaint dated July 10,
2013, to the DOE, alleging, based on the June IEP, that the
DOE failed to offer M. a FAPE for the 2013-14 school year.
(IHO Ex. 1, at 1.) The due process complaint asserted
generally that the June IEP “contains multiple
procedural and substantive errors, ” and specifically
asserted that: (1) “the CSE did not follow proper
procedures in convening the meeting, ” (2) “the
CSE was invalidly composed, ” (3) “the goals and
objectives [in the IEP] do not appropriately address this
student's special education needs, ” (4) “the
[CSE] team did not review appropriate documentation in making
its recommendation, ” and (5) “the IEP . . .
fails to reflect the reports that the parents provided to the
school.” (IHO Ex. 1, at 1-2.) The due process complaint
alleged that the parents informed the CSE that M. had been
accepted at the Henry Viscardi School, but that the district
psychologist “refused to consider this as an
option.” (IHO Ex. 1, ...