Opinion
No. 00 Civ. 7099 (SAS).
May 22, 2001
For Plaintiffs: Neal Howard Rosenberg, Esq. The Law Offices of Neal Howard Rosenberg 9 Murray Street, Suite 7W New York, New York 10007 (212) 732-9450
For Defendant: Laura H. Corvo Assistant Corporation of the City of New York 100 Church Street, Room 2-121 New York, New York 10007 (212) 788-0939
OPINION AND ORDER
Plaintiffs J.B. and M.B. (the "parents") bring this action on behalf of their son, E.B., pursuant to the Individuals with Disabilities in Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., and New York Education Law § 4401 et seq., against the Board of Education of the City of New York (the "Board of Education"), Richard P. Mills, as Commissioner of the New York State Education Department ("NYSED"), and Robert G. Bentley, as State Review Officer ("SRO") of the NYSED) Plaintiffs seek tuition reimbursement for the period from September 1998 through June 1999, during which time they unilaterally placed E.B. in the York Preparatory School ("York Prep"), a private school not approved by the NYSED for the provision of special education services. Specifically, the parents ask this Court to enter a judgment (1) reversing the SRO's finding that there was insufficient evidence of a general program of specialized instruction at York Prep; (2) finding that their unilateral placement was appropriate under the IDEA; (3) finding the weighing of equities favors tuition reimbursement; and (4) awarding them reimbursement in the approximate amount of $16,700.00
On November 17, 2000, defendants Richard P. Mills and Robert G. Bentley were dismissed from this action pursuant to Rule 41(a) of the Federal Rules of Civil Procedure, leaving the Board of Education as the only remaining defendant. See 11/17/00 Stipulation of Dismissal.
The parents now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. In response, the Board of Education has cross-moved seeking an order granting summary judgment in its favor. For the reasons stated below, the parents' motion is denied and the Board of Education's cross-motion is granted.
Although the parties call their submissions to the Court motions for summary judgment, "`the procedure is in substance an appeal from an administrative determination, not a summary judgment.'" Wall v. Mattituck-Cutchogue Sch. Dist., 945 F. Supp. 501, 507-08 (E.D.N.Y. 1996) (quoting Capistrano Unified Sch. Dist. v. Wartenberg, 59 F.3d 884, 892 (9th Cir. 1995)); see also Protano v. Valley Cent. Sch. Dist., No. 00 Civ. 3789, 2001 WL 209935, at *7 (S.D.N.Y. Feb. 15, 2001) (district courts' role in these cases is "quasi-appellate"). The applicable legal standard is discussed in section II, infra.
I. STATUTORY SCHEME OF THE IDEA
The IDEA "is the most recent Congressional enactment in `an ambitious federal effort to promote the education of handicapped children.'"Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998) (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 179 (1982)). The purpose of the IDEA is to
"assure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs," to ensure that the rights of children with disabilities and parents of such children are protected, and to assist states and their agencies in working toward those ends.Protano, 2001 WL 209935, at *1 (quoting 20 U.S.C. § 1400 (d)(1)(A)). Under the statute, a "free appropriate public education" must include "special education and related services" tailored to meet the unique needs of the particular child, 20 U.S.C. § 1401(8), and be "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 207. The educational needs of each disabled child and the necessary services required to meet those needs must be set forth annually in a written individualized education plan ("IEP"). See 20 U.S.C. § 1414(d)(1)(A). In the event the parents of a disabled child disagree with the proposed IEP, they may file a complaint with the state or local educational agency. See id. § 1415(b)(6). Any such complaint is resolved through an "impartial due process hearing," id. § 1415(f), at which school authorities are shouldered with the burden of supporting the proposed IEP. See M.C. ex rel. Mrs. C v. Voluntown Bd. of Ed., 226 F.3d 60, 63 (2d Cir. 2000)
Under the IDEA, each state is free to determine whether to provide a single-tier or two-tier administrative review process. See 20 U.S.C. § 1415(g). New York has opted for the two-tier approach.See N.Y. Educ. L. § 4404. Under New York law, parents challenging a proposed IEP are entitled to a due process hearing conducted by an impartial hearing officer ("IHO") appointed by the local board of education. See id. § 4404(1). If the parents are dissatisfied with the decision of the IHO they have the right to appeal the IHO's decision to the SRO. See id. § 4402(2). Once these administrative remedies have been exhausted, an aggrieved party may bring a federal action under 20 U.S.C. § 1415(i)(2). A district court has the ability to grant any relief it deems appropriate, see 20 U.S.C. § 1415 (i)(2)(B)(iii), and is required to take into account equitable considerations when fashioning such relief. See M.C., 226 F.3d at 68 (citing Town of Burlington v. Dep't of Educ. of Massachusetts, 471 U.S. 359, 374 (1985)).
II. LEGAL STANDARD
Section 1415(i)(2)(B) of the IDEA provides that the district court:
(i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate.
Because neither party has requested a hearing, this action will be resolved on the basis of the evidence in the administrative record. See Heather S. v. State of Wisconsin, 125 F.3d 1045, 1052 (7th Cir. 1997) (if neither party requests that the district court hear additional evidence "[t]he motion for summary judgment is simply the procedural vehicle for asking the judge to decide the case on the basis of the administrative record.") (internal quotations and citations omitted); Fuhrmann v. East Hanover Bd. of Educ., 993 F.2d 1031, 1035 n. 3 (3rd Cir. 1993) ("The parties have not requested that the court consider additional evidence, so the court's determination will be based on the record of the administrative proceedings."); see also Wall, 945 F. Supp. at 508;Protano, 2001 WL 209935, at *7.
While the IDEA authorizes courts to engage in independent judicial review, their role in reviewing state educational decisions under the IDEA is somewhat "circumscribed." M.C., 226 F.3d at 66 (internal quotations and citation omitted) The Second Circuit has instructed that
such decisions are subject to independent judicial review, but this is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review. To the contrary, a federal court is required to give due weight to the rulings of a local or state administrative hearing officer, mindful that the judiciary generally lacks the specialized knowledge and experience necessary to resolve persistent and difficult questions of educational policy. Judicial deference is particularly appropriate when the state hearing officers review has been thorough and careful.Id. (internal quotations, citations and alterations omitted)
III. A REVIEW OF THE ADMINISTRATIVE RECORD
The administrative record forwarded to the Court includes the decisions of the IHO and SRO, the transcript of the hearing held before the IHO on February 12, 1999 ("Tr."), and nine exhibits introduced into evidence at the hearing ("Ex.") Reference to these materials are made throughout this opinion.
A. Underlying Facts
E.B. was referred to the Committee on Special Education for the Board of Education (the "CSE") in June 1996. At that time, the CSE classified E.B. as learning disabled and recommended he receive resource room services and language therapy during the 1996-97 school year. See Tr. at 6. In July 1997, the CSE re-evaluated E.B., declassified him to speech impaired, and recommended he receive speech and language therapy twice per week. See id. at 7. E.B.'s declassification recommendation was made, in part, because of an educational evaluation conducted on February 4, 1997. See Educational Evaluation, Ex. 2 to the Administrative Record. During this evaluation, the examiner administered the Woodcock Johnson Psycho-Educational Battery Tests of Cognitive Ability. See id. E.B.'s test scores were in the average range for broad reading, calculations, science and social studies, in the high average range for applied problems, and ranged from average to superior in oral language. See id. The examiner noted that E.B. was "cooperative throughout the testing session", "worked diligently until a ceiling was reached", and "seemed to thrive on challenge[s]." Id.
The parents placed E.B. at the Stephen Gaynor School during the 1996-97 school year. During the 1997-98 school year E.B. was placed at York Prep. Neither school has been approved by the NYSED for the provision of special education services. Although E.B. was not recommended for full-time special education, the Board of Education awarded E.B.'s parents full tuition reimbursement for both years due to "procedural difficulties." See Tr. at 6; Complaint ¶ 21.
The record does not indicate the nature of these difficulties.
On August 25, 1998, the CSE held its annual review of E.B.'s case in preparation for the 1998-99 school year. See 8/25/98 IEP, Ex. 6 of the Record. E.B.'s mother was in attendance. See id. At the review, the CSE considered E.B.'s 1997 education evaluation (discussed above), a classroom observation performed by the Board of Education's psychologist, Dr. Craig Czarnecki, Ph.D, a speech and language evaluation, and an interview of E.B.'s mother. See Tr. at 27.
On May 28, 1998. Dr. Czarnecki observed E.B. in his ninth grade English class at York Prep for approximately one hour. See Classroom Observation, Ex. 4 to the Administrative Record. During this period, the class was given a worksheet to help them prepare for the final exam. See id. Dr. Czarnecki noted that "Elliot frequently asked for assistance from the teacher" and "appeared to have difficulty putting the words into sentences." Id. Dr. Czarnecki also noted that E.B.'s classmates were having difficulties as well. See id.
A speech and language evaluation was conducted on July 14, 1998. See Speech and Language Evaluation, Ex. 8 to the Record. During this evaluation, E.B. was given the CELF-3 Subtest for Formulated Sentences and the Test of Adolescent and Adult Language-3. See id. The speech evaluator found E.B.'s speech and language to be within the normal range. See id. The evaluator noted that E.B. could follow multi-step directions and understand complex sentences. See id. With respect to conversational speech, E.B.
used complete sentences with age appropriate grammatical and syntactical structure. He used a varied vocabulary, had many ideas and expressed them in a complex sentence structure. He uses language meaningfully using good integration of semantic and syntactical skill.Id. Based on these results, the evaluator concluded that E.B. no longer needed speech and language services. See id.
The Board of Education also interviewed E.B.'s mother on July 14, 1998. See Social History, Ex. 1 to the Administrative Record. E.B.'s mother reported that E.B. progressed well at York Prep. See id. She stated that E.B. was able to concentrate and function independently, although he still had difficulty with language processing, reading comprehension, and vocabulary. See id. E.B.'s mother was grateful for the educational services E.B. was receiving and felt E.B. needed to continue at York Prep in order to improve. See id.
After reviewing this evidence, the CSE declassified E.B. from speech impaired to non-handicapped and recommended he be placed in a general education program with no special services. See id. Plaintiffs rejected this recommendation, enrolled E.B. at York Prep for the 1998-99 school year, and requested a due process hearing.
B. The Due Process Hearing
A hearing was held before an IHO on February 12, 1999. See Tr. at 1. The IHO heard testimony from Lynda Watts, a teacher at York Prep, as well as from Dr. Czarnecki and E.B.'s mother.
Ms. Watts testified in place of Mr. Kleinman, the Head of the Special Education Division at York Prep. See Tr. at 11-12. Although Ms. Watts holds a Masters Degree in child study and adjustment, she does not have a degree or license in special education. See id. at 11, 20. Ms. Watts does not know E.B. personally and her testimony was based solely on conversations with his teachers. See id. at 12.
Ms. Watts testified that E.B. has difficulty retrieving information, organizing and screening ideas, maintaining attention, and adjusting to new situations and challenges. See Tr. at 13. She also testified that E.B. responds poorly to difficulties in the classroom and when he gets upset he needs to be dealt with on a one to one basis in order to be calmed down. See id. at 17. In order to accommodate E.B.'s needs, York Prep placed E.B. in classes composed of a 9:1 student-teacher ratio and offered him "such things as graph organizers in writing, exercises in sequencing, classification, organization and actual formal study skills."Id. Ms. Watts also testified that during the 1998-99 school year E.B. demonstrated progress in his ability to adjust to change, find answers to questions in written text, and construct coherent essays. See id. at 22-23. In her opinion, E.B. could not be appropriately educated in a general education program. See id. at 14.
Dr. Czarnecki's testimony supplemented his classroom observation. He testified that E.B. was involved in all classroom activities and although he had some difficulty using words in sentences, "his participation was commensurate with that of his peers . . . ." Tr. at 26. Dr. Czarnecki also stated that E.B.'s English teacher indicated that E.B. was doing fine and was one of the better students in class. See id. at 31. E.B.'s mother testified that E.B. loses focus in large groups and needs small group instruction. See id. at 35. She further testified that E.B.'s ability to focus has improved during his enrollment at York Prep. See id. at 37.
C. The IHO's Decision
The IHO found the CSE's proposed IEP and recommendations to be "null and void" due to the CSE's failure to follow the procedures required by the IDEA and New York law. See IHO Decision at 6. Specifically, the IHO determined that the CSE (1) failed to include a general education teacher on the August 1998 review team as required by 20 U.S.C. § 1414(d)(1)(B)(ii); (2) failed to determine whether it needed to conduct additional evaluations prior to declassification,See 20 U.S.C. § 1414 (c)(1); and (3) failed to consider whether E.B. was in need of declassification support services, See 8 N.Y.C.R.R. 200.4(d)(1)(iii). Because of these defects, the IHO remanded the matter back to the CSE "so that it may reconvene to consider whether [E.B.] is a student in need of continued special education services and to follow the procedures mandated by federal and state laws." IHO Decision at 7. Nonetheless, the IHO held that E.B.'s parents were not entitled to tuition reimbursement because the record did not support a finding that E.B. had a disability. See id. Plaintiffs appealed this decision to the SRO.
It is unclear if this was ever done.
D. The SRO's Decision
In a decision dated May 17, 2000, the SRO concluded that after determining the CSE's recommended IEP to be "procedurally flawed", the IHO should not have gone on to conclude that E.B. did not have a disability. The SRO therefore found the IEP invalid and determined that for purposes of this proceeding E.B. was speech impaired at the beginning of the 1998-99 school year. See SRO Decision at 3. However, because the SRO could find "no objective evidence" of any special education needs warranting E.B.'s placement at York Prep, he affirmed the IHO's denial of tuition. Id. at 4.
On September 20, 2000, the parents filed this action seeking a review of the SRO's decision.
III. DISCUSSION
A. Tuition Reimbursement
Under the IDEA, a party may seek reimbursement requiring the education provider to "belatedly pay expenses that it should have borne in the first instance had it developed a proper IEP." Burlinqton, 471 U.S. at 370-71. Whether the parents of a disabled child are entitled to reimbursement for the costs of placing their child in a private school depends on (1) whether the challenged IEP was adequate to provide the child with a free appropriate public education; and (2) whether the private educational services obtained by the parents were appropriate to the child's needs.See M.C., 226 F.3d at 66 (citing Burlington, 471 U.S. at 370); Walczak, 142 F.3d at 129; see also Florence County Sch. Dist. v. Carter, 510 U.S. 7, 14 (1993) (finding that a parent may obtain reimbursement for a unilateral placement in a private school not approved by the State of New York for the provision of special education services). "Only if a court determines that the challenged IEP is inadequate should it proceed to the second question." M.C., 226 F.3d at 66. Reimbursement is then appropriate only if the parents can show that the private placement was itself proper under the IDEA. See id.
1. The Appropriateness of the IEP
When determining whether an IEP is adequate to provide a child with a free appropriate public education a court must consider: "(1) whether the School Board complied with the procedural requirements of IDEA, and (2) whether the IEP was `reasonably calculated' to confer `educational benefits.'" M.S. ex rel. S.S. v. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96, 102 (2d Cir. 2000) (quoting Rowley, 458 U.S. at 206-07). The Board of Education shoulders the burden of proof with respect to both of these issues. See Walczak, 142 F.3d at 122.
"The initial procedural inquiry is no mere formality." Id. at 129. The Supreme Court has stated that "adequate compliance with the procedures prescribed [by IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP." Rowley, 458 U.S. at 206. Because the CSE's recommendation to declassify E.B. was procedurally flawed, the SRO concluded that the IEP was invalid and E.B. should not have been declassified. See SRO Decision at 3. The Board of Education does not contest this finding. See Defendant's Memorandum of Law in Opposition to Plaintiffs' Motion for Summary Judgment and in Support of Its Cross-Motion for Summary Judgment at 9-10. Accordingly, the only issue that must be addressed is whether E.B.'s placement at York Prep was appropriate under the IDEA.
2. The Appropriateness of the Private Placement
"[To] determine the appropriateness of parental placement, courts must [determine] whether the private placement `is reasonably calculated to enable the child to receive educational benefits.'" Briere v. Fair Haven Grade Sch. Dist., 948 F. Supp. 1242, 1257 (D. Vt. 1996) (quoting Rowley, 458 U.S. at 207). The parents shoulder the burden of proving the appropriateness of E.B.'s placement at York Prep. See M.S., 231 F.3d at 102, 104.
The parents argue that the preponderance of the evidence "clearly indicate[s] that [they] met their burden of proving that E.B.'s program [at York Prep] was appropriate to meet his special education needs and [was] proper under the IDEA." Plaintiffs' Memorandum of Law in Support of Their Motion for Summary Judgment ("Pl. Mem.") at 12. The parents point to Ms. Watt's testimony and assert that "[i]t was arbitrary and capricious for the [SRO] to put more weight on [the] [B]oard of [E]ducation's insubstantial evidence" than on her findings. Pl. Mem. at 13. I disagree.
The objective evidence before the SRO is insufficient to establish that E.B. had any special education needs warranting his placement at York Prep. E.B. has never been recommended for full-time special education services. When originally referred to the CSE in 1996, he was recommended for resource room services and speech and language therapy. In July 1997, he was declassified from learning disabled to speech impaired and recommended only for speech and language therapy. The speech and language evaluation conducted in July 1998 indicated that E.B. was no longer in need of these services. The results of the educational evaluation conducted in February 1997 show E.B.'s cognitive ability and academic achievement to be in the average to superior range. Although this evaluation was conducted more than a year prior to the 1998 review, the record is devoid of evidence demonstrating any deficiencies in E.B.'s cognitive ability or academic achievement. Dr. Czarnecki further testified that E.B.'s performance in English class during the observation was "commensurate with that of his peers." Tr. at 26.
Even if it was determined that E.B. was in need of special services, the record does not indicate that E.B. was receiving instruction from special educators while at York Prep. Ms. Watts testified that E.B.'s remediation included placement in small classes and "such things as graph organizers in writing, exercises in sequencing, classification, organization and actual formal study skills." See Tr. at 13. While placement in small classes would provide E.B., or any other child, with an education superior to that available in public school, it is well established that the IDEA does not guarantee the best possible education or require that parents be compensated for optimal private placements.See Rowley, 458 U.S. at 197 ("Whatever Congress meant by an "appropriate' education, it is clear that it did not mean a potential-maximizing education."); M.C., 226 F.3d at 62 (same); Protano, 2001 WL 209935, at *9 (same). The purpose of the IDEA is "more to open the door of public education to handicapped children on appropriate terms than to guarantee any particular level of education once inside." Rowley, 458 U.S. at 192;accord Lunceford v. Dist. of Columbia Bd. of Educ., 745 F.2d 1577, 1583 (D.C. Cir. 1984) (Ginsburg, J.) (because public "resources are not infinite," federal law "does not secure the best education money can buy; it calls upon government, more modestly, to provide an appropriate education for each [disabled] child")
Although it is undisputed that the declassification of E.B. was procedurally flawed, the parents shoulder the burden of proving that the placement at York Prep was needed to provide E.B. with an appropriate education. See M.S., 231 F.3d at 104. The SRO determined that the objective evidence in the record did not support such a finding. Upon a review of the record, I conclude that this finding should not be disturbed.
III. CONCLUSION
For the reasons stated above, the parents' motion for summary judgment is denied and the Board of Education's cross-motion is granted. The Clerk of the Court is directed to close this case.
SO ORDERED: