United States District Court, S.D. New York
A.W. and T.W., individually and on behalf of their minor son, M.W., Plaintiffs,
NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant.
Deborah A. Ezbitski Law Office of Deborah A. Ezbitski
Harrison, New York Counsel for Plaintiffs
William B. Scoville, Jr. for Zachary W. Carter Corporation
Counsel, City of New York New York, New York Counsel for
OPINION & ORDER
S. BRODERICK, United States District Judge
me are the parties' cross-motions for summary judgment in
this action brought by Plaintiffs A.W. and T.W.
(collectively, the “Parents”), individually and
on behalf of their minor son, M.W. (collectively,
“Plaintiffs”), pursuant to the Individuals with
Disabilities Education Improvement Act (“IDEA”),
20 U.S.C. § 1400, et seq. Because I find that Defendant
New York City Department of Education (“DOE” or
“Defendant”) failed to offer M.W. a free and
appropriate public education, that Plaintiffs' unilateral
placement was appropriate, and that equitable considerations
weigh in Plaintiffs' favor, Plaintiffs' motion is
GRANTED and Defendant's cross-motion is DENIED.
enacted the IDEA “to ensure that all children with
disabilities have available to them a free appropriate public
education . . . designed to meet their unique needs . . .
[and] to ensure that the rights of children with disabilities
and parents of such children are protected.” 20 U.S.C.
§ 1400(d)(1)(A)-(B); see also Forest Grove Sch.
Dist. v. T.A., 557 U.S. 230, 247 (2009) (finding that a
court could award tuition reimbursement to the parents of
children not provided a free appropriate public education).
“The IDEA offers federal funds to states that develop
plans to assure ‘all children with disabilities'
[residing in the state] a ‘free appropriate public
education.'” Grim v. Rhinebeck Cent. Sch.
Dist., 346 F.3d 377, 379 (2d Cir. 2003) (quoting 20
U.S.C. § 1412(a)(1)(A)).
receiving public funds under the IDEA are required to provide
a “free appropriate public education”
(“FAPE”) to “all children with
disabilities.” 20 U.S.C. § 1412(a)(1)(A); see
Bd. of Educ. v. Rowley, 458 U.S. 176, 179 (1982).
“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, and provided in conformity with
an individualized education program, or IEP.”
Hardison v. Bd. of Educ. of the Oneonta City Sch.
Dist, 773 F.3d 372, 376 (2d Cir. 2014) (quoting
Reyes ex rel. R.P. v. N.Y.C Dep't of Educ, 760
F.3d 211, 214 (2d Cir. 2014)). An appropriate educational
program begins with an individualized education program
(“IEP”) that accurately reflects the results of
evaluations to identify the student's needs, establishes
annual goals related to those needs, and provides for the use
of appropriate special education services. 34 C.F.R. §
300.320(a)(1), (a)(4); N.Y. Comp. Codes R. & Regs. tit.
8, § 200.4(d)(2)(i), (iii), (v); see Gagliardo v.
Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir.
2007) (noting that education and related services “must
be administered according to an IEP, which school districts
must implement annually”); see also Honig v.
Doe, 484 U.S. 305, 311 (1988) (describing development of
an IEP as a “centerpiece” of the IDEA); Frank
G. v. Bd. of Educ., 459 F.3d 356, 363 (2d Cir. 2006)
(describing the IEP as “[t]he key element of the
IDEA”). School districts are required to “prepare
an IEP for disabled students annually, and those IEPs
‘must include the child's present levels of
academic achievement and functional performance, goals and
objectives for the child, and the special education and
related services to be provided to the child so that he or
she can advance toward attaining those goals and
objectives.'” Hardison, 773 F.3d at 376
(quoting Reyes, 760 F.3d at 214). The IEP must be reviewed at
least annually and revised in accordance with the child's
needs. 20 U.S.C. § 1414(d)(2)-(4).
York, there are regulations in place to implement the IDEA,
which “appear to track the IDEA closely.” Frank
G., 459 F.3d at 363 (citation omitted); see N.Y. Comp. Codes
R. & Regs. tit. 8, § 200.1, et seq. New York law
tasks the creation of IEPs to Committees on Special Education
(“CSEs”), which are comprised of, among others,
members appointed by the board of education or trustees of
the school district. See Walczak v. Fla. Union Free Sch.
Dist., 142 F.3d 119, 123 (2d Cir. 1998) (citing N.Y.
Educ. Law § 4402(1)(b)(1)). CSEs “must include the
student's parent(s), a regular or special education
teacher, a school board representative, a parent
representative, and others.” R.E. v. N.Y.C.
Dep't of Educ., 694 F.3d 167, 175 (2d Cir. 2012)
(citing N.Y. Educ. Law § 4402(1)(b)(1)(a)). “In
developing a particular child's IEP, a Committee on
Special Education is required to consider four factors: (1)
academic achievement and learning characteristics, (2) social
development, (3) physical development, and (4) managerial or
behavioral needs.” Frank G., 459 F.3d at 363 (quoting
Walczak, 142 F.3d at 123).
parent believes that the DOE has breached its obligations
under the IDEA “by failing to provide their disabled
child a FAPE, the parent[s] may unilaterally place their
child in a private school at their own financial risk and
seek tuition reimbursement.” M.W. ex rel. S.W. v.
N.Y.C. Dep't of Educ., 725 F.3d 131, 135 (2d Cir.
2013) (citing Florence Cnty. Sch. Dist. Four v.
Carter, 510 U.S. 7, 9-10, 16 (1993)). To seek such
tuition reimbursement, a parent must first file a due process
complaint with the DOE. The due process complaint initiates
administrative proceedings involving an impartial due process
hearing before an Impartial Hearing Officer
(“IHO”). See id.
The three-pronged Burlington/Carter test, as construed by New
York Education Law § 4404(1)(c), governs that hearing:
(1) the DOE must establish that the student's IEP [and
identified class placement, if at issue, ] actually provided
a FAPE; should the DOE fail to meet that burden, the parents
are entitled to reimbursement if (2) they establish that
their unilateral placement was appropriate and (3) the
equities favor them.
Id. (footnote omitted). The school district bears
the burden of proof on the first and third prongs of the
Burlington/Carter test. See N.Y. Educ. Law § 4404(1)(c).
“Substantive inadequacy automatically entitles the
parents to reimbursement, as long as the parents'
alternative placement was appropriate and equitable
considerations favor reimbursement.” T.M.
ex rel. A.M. v. Cornwall Cent. Sch. Dist., 752 F.3d
145, 160 (2d Cir. 2014) (internal quotation marks omitted).
parents' “unilateral private placement is only
appropriate if it provides ‘education instruction
specifically designed to meet the unique needs of a
handicapped child.'” Gagliardo, 489 F.3d
at 115 (quoting Frank G., 459 F.3d at 365). It need not
“meet the IDEA definition of a free appropriate public
education.” Frank G., 459 F.3d at 364. Rather, the
focus is on whether it is “reasonably calculated to
enable the child to receive educational benefits.”
Id. (internal quotation marks omitted). The parents
bear the burden of establishing the appropriateness of their
unilateral placement. C.L. v. Scarsdale Union Free Sch.
Dist, 744 F.3d 826, 836 (2d Cir. 2014).
third prong of the Burlington/Carter analysis requires the
court to consider equitable factors. See M.W., 725
F.3d at 135. Courts have held that reimbursement may be
reduced or denied “where parents unilaterally arrange
for private educational services without ever notifying the
school board of their dissatisfaction with their child's
IEP.” M.C ex rel. Mrs. C v. Voluntown Bd. of
Educ, 226 F.3d 60, 68 (2d Cir. 2000) (listing cases).
IHO's decision may, in turn, be appealed to a State
Review Officer (“SRO”), who is an officer of the
State's Department of Education.” M.H. ex rel.
P.H. v. New York City Dep t of Educ, 685 F.3d 217, 225
(2d Cir. 2012) (citing Grim, 346 F.3d at 379-80); see N.Y.
Educ. Law § 4404(2). Any party who wishes to challenge
the SRO's final administrative decision has the right to
seek review of it by bringing a civil action in federal
court. See M.W., 725 F.3d at 135-36; 20 U.S.C.
§ 1415(i)(2)(A). On a federal appeal, the district court
receives “the records of the administrative
proceedings” and, if requested, hears additional
evidence. 20 U.S.C. § 1415(i)(2)(C). The district court
then “grant[s] such relief as the court determines is
appropriate, ” based on the preponderance of the
Federal District Court Review of State Educational
cases, motions for summary judgment “serve as an aid to
the court within a statutory scheme whose purpose is to
ensure that children with disabilities receive the
educational benefits to which they are entitled.”
T.Y. ex rel. T.Y. v. N.Y.C Dep't of Educ., 584
F.3d 412, 418 (2d Cir. 2009). For this reason, motions for
summary judgment in IDEA cases are “an appeal from an
administrative determination” that typically
“trigger more than an inquiry into possible disputed
issues of fact.” Lillbask ex rel. Mauclaire v.
State of Conn. Dep t of Educ., 397 F.3d 77, 83 n.3 (2d
Cir. 2005). “[T]he role of the federal courts in
reviewing state educational decisions under the IDEA is
circumscribed.” Gagliardo, 489 F.3d at 112-13.
The court must give “due weight to the state
proceedings, mindful that [the court] lack[s] ‘the
specialized knowledge and experience necessary to resolve . .
. questions of educational policy.'” R.E., 694 F.3d
at 189 (quoting Gagliardo, 489 F.3d at 113).
“Keeping in mind this ‘circumscribed' role,
the district court ‘engage[s] in an independent review
of the administrative record and make[s] a determination
based on a preponderance of the evidence.'”
M.B. ex rel. L.C. v. Minisink Valley Cent. Sch.
Dist., 523 F. App'x 76, 77-78 (2d Cir. 2013)
(summary order) (quoting Gagliardo, 489 F.3d at
generally ‘defer to the final decision of the state
authorities, even where the reviewing authority disagrees
with the hearing officer.'” M.H., 685 F.3d at 241
(quoting A.C. ex rel. M.C. v. Bd. of Educ. of the
Chappaqua Cent. Sch. Dist., 553 F.3d 165, 171 (2d Cir.
2009)). Such deference is not absolute: the deference owed to
an SRO's decision hinges on the quality of that opinion.
Reviewing courts must look to the factors that
“normally determine whether any particular judgment is
persuasive, for example, whether the decision being reviewed
is well-reasoned, and whether it was based on substantially
greater familiarity with the evidence and the witnesses than
the reviewing court.” Id. at 244.
the IHO and SRO disagree, the general rule is that
“courts must defer to the reasoned conclusions of the
SRO as the final state administrative determination.”
Id. at 246.
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, rather than to rely exclusively on its own less
informed educational judgment.
Id. Therefore, “a court must defer to the
SRO's decision on matters requiring educational expertise
unless it concludes that the decision was inadequately
reasoned, in which case a better-reasoned IHO opinion may be
considered instead.” RE., 694 F.3d at 189.
following facts and procedural history are taken from the
parties' submissions and the administrative record, which
was filed under seal. (Doc. 15, the “Record”.)
Defendant also filed M.W.'s 2009 IESP under seal. (Doc.
M.W. and the 2012 IEP
has been classified by the DOE as a child with a disability
pursuant to the IDEA. (Jt. St. ¶ 1.) Plaintiffs A.W.
and T.W. are M.W.'s father and mother, respectively.
(Id.) M.W. has been diagnosed with attention deficit
hyperactivity disorder (“ADHD”), for which he has
been taking medication since fourth grade. (IEP 2; Ex.
M.W. attended a parochial school for the first through fifth
grades, and during those years he was placed in a general
education classroom. (Jt. St. ¶ 2.) M.W. was first found
to be eligible for special education services in the third
grade, and he has had an IEP each year since. (Tr.
318:4-15.) In 2010, when M.W. was in the sixth grade,
the Parents unilaterally placed M.W. at the Aaron School
(“Aaron”). (Jt. St. ¶ 2.) Since that
time-for the sixth through the eighth grades-M.W. has
attended Aaron. (Id.) M.W. was thirteen years old
and in the eighth grade during the 2012-2013 school year.
(Id. ¶ 3.)
April 16, 2012, the DOE's CSE held a meeting to develop
an IEP for M.W. for the 2012-2013 school year (the “IEP
Meeting”). (Id. ¶ 4.) The participants in
the IEP Meeting were T.W.; Rose Fochetta, a school
psychologist for the DOE; Feng Ye, a special education
teacher with the DOE and Fochetta's “partner at
work”; Matthieu Moss,  a teacher from Aaron who had
taught M.W. in various subjects during the 2010-2011 and
2011-2012 school years; and Carmen Garcia, a parent member of
the CSE. (Id.; Tr. 69:8-18.) During the meeting, the
CSE reviewed a February 9, 2012 psychoeducational evaluation;
a February 8, 2012 classroom observation conducted by
Fochetta; and reports for terms 1 and 2 of the 2011-2012
school year from Aaron detailing M.W.'s performance. (Jt.
St. ¶ 5.)
psychoeducational evaluation indicated that despite being in
the eighth grade, M.W.'s letter-word decoding skills were
at an early fifth-grade level and that his skills appeared to
deteriorate with more complicated words. (Ex. 4, at 2.) His
language comprehension was below a fourth grade level.
(Id.) He had increasing difficulty understanding the
central meaning of verbal narratives that he had to read.
(Id.) As narratives became more complicated and
difficult, M.W. had more difficulty with actual word reading.
(Id.) He had weaknesses in spelling and attention.
(Id. at 2-3.) The psychoeducational evaluation also
indicated that M.W.'s scores on the WISC-IV, commonly
known as an “I.Q. test, ” were in the average
range and that his scores in academic achievement, as
measured by the Woodcock-Johnson test, were in the average to
low-average range. (Id. at 2-4; Jt. St. ¶ 6.)
IEP for the 2012-2013 school year classified M.W. as having a
learning disability. (Jt. St. ¶ 8; IEP 1.) The CSE
recommended that M.W. be placed in an integrated co-teaching
(“ICT”) class with related
services. (Jt. St. ¶ 9; IEP 12.) In addition to
the ICT, the IEP also recommended two sessions per week of
occupational therapy to be ...