C.M. ex rel. H.S. v.

C.M., individually and on behalf of H.S., Plaintiffs, v. THE NEW YORK CITY DEPARTMENT OF EDUCATION,and CARMEN FARIÑA, in her official capacity as Chancellor of theNew York City Department of Education, Defendants.

15 Civ. 6275 (ER)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

February 14, 2017

OPINION AND ORDER

Ramos, D.J.:

C.M., ("Plaintiff") individually and on behalf of her child, H.S., filed suit against the New York City Department of Education (the "DOE" or "District") and Carmen Fariña, in her official capacity as the Chancellor of the DOE (together "Defendants"), under the Individuals with Disabilities Education Act ("IDEA"), Section 504 of the Rehabilitation Act of 1973, and Article 89 of New York State Education Law, seeking funding for H.S.'s tuition at the Rebecca School for the 2011-2012 school year. Before the Court are the parties' cross-motions for summary judgment.

For the reasons set forth below, Plaintiff's motion for summary judgment is DENIED and Defendants' motion for summary judgment is GRANTED.

I. STATUTORY FRAMEWORK

A. The IDEA

Congress enacted the IDEA to encourage the education of children with disabilities. E.A.M. ex rel. E.M. v. N.Y.C. Dep't of Educ., No. 11 Civ. 3730 (LAP), 2012 WL 4571794, at *1 (S.D.N.Y. Sept. 29, 2012) (citing Bd. of Educ. v. Rowley, 458 U.S. 176, 179 (1982)). The statute mandates that any state receiving federal funds must provide a free appropriate public education ("FAPE") to children with disabilities. See 20 U.S.C. § 1412(a)(1)(A); Rowley, 458 U.S. at 181. The FAPE provided by the state must include "special education and related services" tailored to meet the unique needs of the particular child, 20 U.S.C. § 1401(9), and must be "reasonably calculated to enable the child to receive educational benefits," Rowley, 458 U.S. at 207.

A public school ensures that a student with disabilities receives a FAPE by providing the student with an Individualized Education Plan ("IEP"). See Polera v. Bd. of Educ., 288 F.3d 478, 482 (2d Cir. 2002). An IEP is a written statement, collaboratively developed by the parents of the child, educators, and specialists, that "sets out the child's present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives." M.O. v. N.Y.C. Dep't of Educ., 793 F.3d 236, 239 (2d Cir. 2015) (quoting R.E. v. N.Y.C. Dep't of Educ., 694 F.3d 167, 175 (2d Cir. 2012)).

Because New York State receives federal funds under the IDEA, it must comply with the requirements of the statute. Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 123 (2d Cir. 1998). In New York, the task of developing an IEP rests with local Committees on Special Education ("CSEs"), whose members are appointed by the board of education or trustees of the school district. Id. (citing N.Y. Educ. Law § 4402(1)(b)(1); Heldman ex rel. T.H. v. Sobol, 962 F.2d 148, 152 (2d Cir. 1992)). "CSEs are comprised of members appointed by the local school district's board of education, and must include the student's parent(s), a regular or special education teacher, a school board representative, a parent representative, and others." R.E., 694 F.3d at 175 (citing N.Y. Educ. Law § 4402(1)(b)(1)(a)). "In developing a child's IEP, the CSE is required to consider four factors: '(1) academic achievement and learning characteristics,(2) social development, (3) physical development, and (4) managerial or behavioral needs.'" E.A.M. v. N.Y.C. Dep't of Educ., No. 11 Civ. 3730 (LAP), 2012 WL 4571794, at *1 (quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107-08 (2d Cir. 2007)).

To provide a FAPE, an IEP must be "reasonably calculated to enable the child to receive educational benefits," "likely to produce progress, not regression," and afford the student with an opportunity to achieve greater than mere "trivial advancement." Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192, 195 (2d Cir. 2005) (quoting Walczak, 142 F.3d at 129-30). "A school district is not, however, required to furnish 'every special service necessary to maximize each handicapped child's potential,'" id. at 195 (quoting Rowley, 458 U.S. at 207), or "everything that might be thought desirable by loving parents," Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567). Rather, the IDEA calls only for selection of a program that provides a "basic floor of opportunity." Walczak, 142 F.3d at 132 (quoting Rowley, 458 U.S. at 201); see id. at 130 ("IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP."). "[B]ecause 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.'" Id. (quoting Lunceford v. D.C. Bd. of Educ., 745 F.2d 1577, 1583 (D.C. Cir. 1984)); see also C.F. ex rel. R.F. v. N.Y.C. Dep't of Educ., 746 F.3d 68, 72 (2d Cir. 2014). Furthermore, under an IEP, "education [must] be provided in the least restrictive setting consistent with a child's needs" and the CSE must "be mindful of the IDEA's strong preference for mainstreaming, or educating children with disabilities [t]o the maximum extent appropriate alongside their non-disabled peers." M.H. v. N.Y.C. Dep't of Educ., 685 F.3d 217, 224 (2d Cir. 2012) (internal quotation marks omitted).

In addition to imposing the IEP requirement, the IDEA provides for due process procedures to promptly resolve disputes that arise between parents and school districts, so that children will receive appropriate special education services. 20 U.S.C. § 1415(b)(6)-(b)(7). New York State has implemented a two-tiered system of administrative review for disputes regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability . . . or the provision of a [FAPE] to such a student." Id.; 8 N.Y.C.R.R. § 200.5(i)(1). First, "[p]arents may challenge the adequacy of their child's IEP in an 'impartial due process hearing' before an [independent hearing officer ("IHO")] appointed by the local board of education." E.A.M., 2012 WL 4571794, at *2 (quoting Gagliardo, 489 F.3d at 109). Either party may then appeal the independent hearing officer's decision to the New York State Review Officer ("SRO"), an officer of New York State's Board of Education tasked with conducting an impartial review of the proceedings. Id.; 34 C.F.R. § 300.514(b)(2); 8 N.Y.C.R.R. § 279.1(d).

After the SRO has rendered its decision, either party may then appeal to either state or federal district court. N.Y. Educ. Law § 4404(3)(a). If appealed to federal district court, the court must "receive the records of the administrative proceedings" and, if requested by the parties, hear 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. Under the statute, "appropriate" relief may include reimbursement for the cost of a private school placement. E.A.M., 2012 WL 4571794, at *2.

B. Claims for Tuition Reimbursement Under the IDEA

"'Parents who . . . believe that a FAPE is not being provided to their child may unilaterally enroll the child in a private school and seek tuition reimbursement from the schooldistrict' by filing what is known as a 'due process complaint.'" M.O., 793 F.3d at 239 (quoting Hardison v. Bd. of Educ., 773 F.3d 372, 376 (2d Cir. 2014); see also N.Y. Educ. Law § 4404(1); and 20 U.S.C. § 1412(a)(10)(C)(ii)). Parents who unilaterally place their child in a private school do so "at their financial risk." Reyes ex rel. R.P. v. N.Y.C. Dep't of Educ., 760 F.3d 211, 215 (2d Cir. 2014).

"The Supreme Court has established the three-pronged Burlington/Carter test to determine eligibility for [tuition] reimbursement, which looks to (1) whether the school district's proposed plan will provide the child with a free appropriate public education; (2) whether the parents' private placement is appropriate to the child's needs; and (3) a consideration of the equities." C.F., 746 F.3d at 73 (citation and internal quotation marks omitted).¹

With specific respect to the first Burlington/Carter prong, "challenges to a school district's proposed placement school must be evaluated prospectively (i.e., at 'the time of the parents' placement decision') and cannot be based on mere speculation." M.O., 793 F.3d at 244 (quoting R.E., 694 F.3d at 195). Thus, evaluation of the IEP must be based only on information available to the parent at the time he or she was considering the IEP and the school district's proposed placement, and not on retrospective evidence that came to light after the parent chose to reject the district's placement and enroll the child in private school. See, e.g., id.; R.E., 694 F.3d at 188.

"Under New York's Education Law § 4404(1)(c), the local school board bears the initial burden of establishing the validity of its plan at a due process hearing. If the board fails to carrythis burden, the parents bear the burden of establishing the appropriateness of their private placement and that the equities favor them." R.E., 694 F.3d at 184-85 (citing Cerra, 427 F.3d at 192).² The district court retains discretion over whether to award tuition reimbursement. See 20 U.S.C. § 1412(a)(10)(C)(ii) ("[A] court or a hearing officer may require the agency to reimburse the parents for the cost of [private] enrollment.") (emphasis added).

C. Section 504 Claims

Section 504 of the Rehabilitation Act of 1973 provides that "[n]o otherwise qualified individual with a disability in the United States . . . 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...