United States District Court, S.D. New York
BOARD OF EDUCATION OF THE NORTH ROCKLAND CENTRAL SCHOOL DISTRICT, Plaintiff,
C.M., individually and on behalf of her child, P.G., Defendants.
OPINION AND ORDER
VINCENT L. BRICCETTI UNITED STATES DISTRICT JUDGE.
Board of Education of the North Rockland Central School
District (the “District”), brings this action
pursuant to the Individuals with Disabilities Education Act,
20 U.S.C. § 1400, et seq. (“IDEA”),
and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.
§ 794 (“Section 504”). The District seeks
reversal of the portion of the decision of an impartial
hearing officer (“IHO”) that found the District
had violated Section 504 and granted relief to C.M., the
parent of a child with disabilities, P.G.
(“Parent”). Parent seeks to have the IHO's
decision affirmed or, in the alternative, to have the State
Review Officer's (“SRO”) dismissal of
Parent's IDEA claims reversed.
pending are the parties' cross-motions for summary
judgment. (Docs. ##46, 55).
reasons set forth below, the District's motion is GRANTED
and Parent's motion is DENIED.
Court has subject matter jurisdiction pursuant to 28 U.S.C.
IDEA was enacted to promote the education of disabled
children. 20 U.S.C. § 1400(d)(1)(A); see Bd. of
Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley,
458 U.S. 176, 179 (1982) (interpreting predecessor statute to
IDEA). States receiving public funds are required to provide
a free appropriate public education (“FAPE”) to
children with disabilities. 20 U.S.C. § 1412(a)(1)(A).
Public school districts must provide “‘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.'” Walczak v. Fla. Union
Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998)
(quoting Bd. of Educ. of the Hendrick Hudson Cent. Sch.
Dist. v. Rowley, 458 U.S. at 207).
have an obligation under the IDEA to identify, locate, and
evaluate “[a]ll children with disabilities residing in
the State” to determine whether they require special
education and related services. 20 U.S.C. §
1412(a)(3)(A); see Handberry v. Thompson, 446 F.3d
335, 347 (2d Cir. 2006). This so-called “child
find” obligation extends to children who are
“suspected of being a child with a disability.”
34 C.F.R. § 300.111(c)(1).
IDEA requires states to create an individualized education
program (“IEP”) for each disabled student.
See 20 U.S.C. § 1412(a)(4); see also Frank
G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 363 (2d
Cir. 2006) (“The key element of the IDEA is the
development of an IEP for each handicapped child.”).
The IEP is a “comprehensive statement of the
educational needs of a handicapped child and the specially
designed instruction and related services to be employed to
meet those needs.” Sch. Comm. of Burlington v.
Dep't of Educ., 471 U.S. 359, 368 (1985).
state fails to provide a FAPE to a disabled child, the
parents may enroll the child in a private school and seek
reimbursement for the cost of the private school from the
local board of education. See 20 U.S.C. §
1412(a)(10)(C); Sch. Comm. of Burlington v. Dep't of
Educ., 471 U.S. at 369-70, 374.
York, parents seeking such reimbursement must first file a
“due process” complaint challenging the
appropriateness of the IEP. FB v. N.Y.C. Dep't of
Educ., 923 F.Supp.2d 570, 577 (S.D.N.Y. 2013). An IHO
conducts a hearing on the parents' complaint.
See N.Y. Educ. Law § 4404(1). A board of
education is required to reimburse parents for private
educational services if: (i) the board fails to establish the
student's IEP provided a FAPE; (ii) the parents establish
their unilateral placement was appropriate; and (iii)
equitable considerations favor the parents' claim.
See Florence Cty. Sch. Dist. Four v. Carter, 510
U.S. 7 (1993); M.W. ex rel. S.W. v. New York City
Dep't of Educ., 725 F.3d 131, 135 (2d Cir. 2013).
The IHO's decision may be appealed to an SRO at the New
York State Education Department. See N.Y. Educ. Law
§ 4404(2); see also 20 U.S.C. § 1415(g).
The SRO's decision may be challenged in federal court.
See 20 U.S.C. § 1415(i)(2)(A).
504 provides that “[n]o otherwise qualified individual
with a disability . . . shall, solely by reason of her or his
disability, be excluded from the participation in, be denied
the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial
assistance.” 29 U.S.C. § 794(a).
the educational context, Section 504 imposes requirements on
schools that are parallel to the IDEA requirements.”
K.H. v. N.Y. City Dep't of Educ., 2014 WL
3866430, at *3 (E.D.N.Y. Aug. 6, 2014). “However, the
two statutes provide different protections, because
‘Section 504 provides relief from discrimination,
whereas the IDEA provides relief from inappropriate
educational placement decisions, regardless of
discrimination.'” Id. (quoting Wenger
v. Canastota Cent. Sch. Dist., 979 F.Supp. 147, 152
(N.D.N.Y. 1997), aff'd, 208 F.3d 204 (2d Cir.
2000)). As a result, to establish liability under Section
504, “courts have held that a plaintiff must
demonstrate more than an incorrect evaluation or
substantively faulty IEP.” R.B. ex rel. L.B. v. Bd.
of Educ., 99 F.Supp.2d 411, 419 (S.D.N.Y. 2000). Rather,
“there must be evidence that a school district acted
with deliberate or reckless indifference to the student's
federally protected rights or with bad faith or gross
misjudgment.” Schreiber v. E. Ramapo Cent. Sch.
Dist., 700 F.Supp.2d 529, 564 (S.D.N.Y. 2010) (internal
quotation marks omitted).
parties have submitted briefs, statements of material facts
pursuant to Local Civil Rule 56.1, and the record and
exhibits from the proceedings below, which reflect the
following factual background.
was born in Novosibirsk, Russia in 1995. According to his
medical records, his birth parents were alcoholics. Beginning
when he was three years old, P.G. lived in orphanages in
Russia, where he was abused, both physically and sexually.
Parent and her now deceased husband adopted P.G. in 2003,
when he was eight years old, and brought him to the United
States. In May 2003, P.G. was diagnosed with prenatal
hypotrophy (muscle weakness), perinatal encephalopathy (brain
damage of unknown origin), delay in psychological
development, and dysarthria (speech impairment). (Parent Ex.
detailed below, P.G. has a long history of behavioral issues,
in addition to developmental disabilities.
First Through Fifth Grades
was enrolled in the District on May 9, 2003, entering in the
first grade. From the first through fourth grades,
i.e., the 2003-2004 through 2006-2007 school years,
PG attended Stony Point Elementary School. Initially the
District placed him in general education classes with English
as a Second Language (“ESL”) services. The
District first referred P.G. for special education services
on October 8, 2004. Some of the District documents and
evaluations from this time and later have an incorrect birth
date for P.G., which suggested he was two years younger than
his actual age. As a result, some of the evaluations of P.G.
likely overstated his abilities. Nevertheless, evaluations
showed P.G. was functioning well below grade-level in math
and reading, had a very low IQ, and had attention deficits,
among other issues.
December 16, 2004, the District classified P.G. as a student
with an “Other Health Impairment.” (Dist. Ex.
164). He was recommended for consultant teacher services for
English language arts and math, a modified curriculum, and a
behavior intervention plan.
April 2005, the District's Committee on Special Education
(“CSE”) recommended a 15:1 student-teacher-ratio
class in the third grade for P.G. for all core subjects, in
addition to counseling once per week.
April 2006, the CSE made the same recommendations for
P.G.'s fourth grade, but added a self-contained reading
fifth grade, i.e., the 2007-2008 school year, P.G.
attended Farley Middle School, where he was placed in a
self-contained program for all core classes. This is when
“things began to unravel for P.G.” (Parent SOF
¶ 97). “He became frustrated with the other
students, the teacher and the work.” (Id.). In
addition, his “behavior issues grew worse and he would
often run away and hide in school.” (Id.
¶ 99). He was also performing “significantly below
grade level in all academic areas.” (Dist. SOF ¶
reevaluation from February 2008 showed P.G. was still
performing academically at a very low level and had
significant cognitive difficulties. Nevertheless, he remained
classified as “other health impaired, ” rather
than developmentally or learning disabled. (See
Dist. Ex. 97).
BOCES Programs - Repeated Fifth Grade and Sixth
March 10, 2008, the District held a CSE meeting for
P.G.'s sixth grade, i.e., the 2008-2009 school
year. The IEP notes P.G.'s significant needs and low
cognitive function. On June 11, 2008, P.G. was suspended from
school for hitting two students unprovoked. A June 17, 2008,
IEP recommended placement in an “8:1” (student
to teacher plus special education teacher ratio) program for
students with emotional and behavioral difficulties at a
Board of Cooperative Educational Services
(“BOCES”) in-District program at Haverstraw
Middle School (“BOCES Haverstraw”). (Dist. Ex.
97). In January 2009, the District amended P.G.'s IEP to
reflect that he was repeating the fifth grade during this
March 2009, P.G. jumped out of a second story window and
suffered injuries. He was taken to a psychiatric center for
children, where he remained for several weeks. While
hospitalized, P.G. underwent a neuropsychological exam, which
confirmed both his 1995 birth date and his severe academic
delays and language deficiencies, in addition to other
diagnoses, including “Pervasive Developmental Disorder,
Not Otherwise Specified, ” “Rule Out Post
Traumatic Stress Disorder” (“PTSD”), and
“Mild Mental Retardation.” (Dist. Ex. 75).
April 30, 2009, the CSE conducted a review of P.G.'s
placement and determined that he should continue at BOCES
Haverstraw, in an 8:1 class, with counseling services. In
addition, the CSE added a 1:1 aide. On May 18, 2009, the CSE
reconvened and added speech language services to the IEP.
started the sixth grade, i.e., the 2009-2010 school
year, at BOCES Haverstraw. On September 23, 2009, P.G. was
suspended from school for fighting. One month later, he was
arrested for breaking and entering.
academic and counseling report dated November 9, 2009, BOCES
detailed P.G.'s areas of progress and strengths, but
noted that “there has been some regression as of
late.” (Dist. Ex. 58). The report further documented
that P.G. continued to read at a third grade level, and
“has tremendous difficulty handling problematic
situations, ” including because he would
“verbally assault students and staff” when angry
or frustrated. (Id.).
November 23, 2009, the CSE recommended placement at Rockland
BOCES Hilltop School. (Parent SOF ¶ 185). According to
Parent, BOCES Hilltop is “exclusively for children with
emotional and behavioral difficulties.” (Parent
Response to Dist. SOF ¶ 180). At this time P.G. was
“nearly 15 years old, enrolled in the sixth grade, yet
working on a third grade academic level.”
(Id.). At BOCES Hilltop, P.G. maintained the 1:1
aide, was still in an 8:1 class, and was still “in
the general educational curriculum including all
assessments.” (Parent SOF ¶ 186).
3, 2010, the CSE met again and recommended that P.G. stay at
BOCES Hilltop for the seventh grade, ...