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A.W. v. New York City Department of Education

United States District Court, S.D. New York

February 21, 2018

A.W. and T.W., individually and on behalf of their minor son, M.W., Plaintiffs,

          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 Defendant

          OPINION & ORDER

          VERNON S. BRODERICK, United States District Judge

         Before 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.

         I. Legal Standard

         A. Statutory Framework

         Congress 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)).

         States 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).

         In New 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).

         If a 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).

         The 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).

         The 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).

         “An 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 evidence. Id.

         B. Federal District Court Review of State Educational Decisions

         In IDEA 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 112).

         “Courts 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.

         Where 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.

         II. Factual Background

         The 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. 25.)[1]

         A. M.W. and the 2012 IEP

         M.W. has been classified by the DOE as a child with a disability pursuant to the IDEA. (Jt. St. ¶ 1.)[2] 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. 2.)[3] 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.)[4] 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.)

         On 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, [5] 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.)

         The 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.)

         M.W.'s 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.[6] (Jt. St. ΒΆ 9; IEP 12.) In addition to the ICT, the IEP also recommended two sessions per week of occupational therapy to be ...

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