D.C. ex rel. E.B. v.

950 F.Supp.2d 494

D.C. ex rel. E.B., Plaintiff,

v.NEW YORK CITY DEPARTMENT OF EDUCATION, et al., Defendants.

No. 12 Civ. 1394 (JGK).

United States District Court, S.D. New York.

March 26, 2013.

Caroline Jean Heller, Lauren Callan Harrison, Greenberg Traurig, LLP, New York, NY, for Plaintiff.

David Alan Rosinus, Jr., New York City Law Department, New York, NY, for Defendants.

OPINION AND ORDER

JOHN G. KOELTL, District Judge:

The plaintiff, D.C., brings this action on behalf of her son, E.B., pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400 et seq., and Section 504 of the Rehabilitation Act of 1973 (“Section 504”), 29 U.S.C. §§ 794 et seq., against the New York City Department of Education and Dennis M. Walcott in his official capacity as Chancellor of the New York City School District (collectively “the Department”). The plaintiff challenges the decision of the State Review Officer (“SRO”) denying her claim for payment of E.B.'s tuition for the Rebecca School, a private school at which D.C. unilaterally placed E.B. for the 2010–2011 school year. The SRO's decision affirmed in part the decision of an Impartial Hearing Officer (“IHO”). The plaintiff also alleges that the defendants discriminated against E.B. and violated Section 504 by not accommodating D.C.'s seafood allergy. The parties have cross-moved for summary judgment. The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and 20 U.S.C. § 1415(i)(2)(A).

For the reasons explained below, D.C.'s motion for summary judgment on the IDEA claim is granted and the defendants' motion for summary judgment is denied. All parties' motions for summary judgment on the Section 504 claim are denied.

I.

“Under the IDEA, states receiving federal funds are required to provide ‘all children with disabilities' a ‘free appropriate public education.’ ” Gagliardo v. Arlington Cent. Sch. Dist. (“Gagliardo II”), 489 F.3d 105, 107 (2d Cir.2007) (quoting 20 U.S.C. § 1412(a)(1)(A)); see also Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir.1998). A free appropriate public education (“FAPE”) must provide “special education and related services tailored to meet the unique needs of a particular child, and be ‘reasonably calculated to enable the child to receive educational benefits.’ ” Walczak, 142 F.3d at 122 (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982) (internal quotation marks and citation omitted)). Because the IDEA expresses a “strong preference for children with disabilities to be educated, ‘to the maximum extent appropriate,’ together with their non-disabled peers, special education and related services must be provided in the least restrictive setting consistent with a child's needs.” Id. (internal citation omitted); see also R.S. ex rel. A.S. v. Lakeland Cent. School Dist., No. 09 Civ. 9874, 2011 WL 1198458, at *1 (S.D.N.Y. March 30, 2011).

“To ensure that qualifying children receive a FAPE, a school district must create an individualized education program (‘IEP’) for each such child.” R.E. v. N.Y.C. Dept. of Educ., 694 F.3d 167, 175 (2d Cir.2012) (citing 20 U.S.C. § 1414(d); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195, 197 (2d Cir.2002) (describing the IEP as the “centerpiece” of the IDEA system)). The IDEA requires that an IEP be “reasonably calculated to enable the child to receive educational benefits.” Rowley, 458 U.S. at 207, 102 S.Ct. 3034. In New York, the responsibility for developing an appropriate IEP for a child is assigned to a local Committee on Special Education (“CSE”). Walczak, 142 F.3d at 123. “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)). “The CSE must examine the student's level of achievement and specific needs and determine an appropriate educational program.” Id. (citing Gagliardo II, 489 F.3d at 107–08).

Parents in New York who wish to challenge their child's IEP as insufficient under the IDEA may request an impartial due process hearing before an IHO appointed by the local board of education. Walczak, 142 F.3d at 123 (citing 20 U.S.C. § 1415(f); N.Y. Educ. Law § 4404(1)). A party may appeal the decision of the IHO to an SRO, and the SRO's decision may be challenged in either state or federal court. Id. (citing 20 U.S.C. § 1415(g), 1415(i)(2)(A) and N.Y. Educ. Law § 4404(2)); see also R.S., 2011 WL 1198458, at *1. In addition, if a school district fails to provide a FAPE to a child with disabilities, the child's parents may, at their own financial risk, remove the child from the improper placement, enroll the child in an appropriate private school, and retroactively seek reimbursement for the cost of private school from the state. See Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985).

Under the IDEA, a district court must conduct an independent review of the administrative record, along with any additional evidence presented by the parties, and must determine by a preponderance of the evidence whether the IDEA's provisions have been met.¹Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 380–81 (2d Cir.2003); see also Gagliardo II, 489 F.3d at 112. This independent review, however, 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.” Rowley, 458 U.S. at 206, 102 S.Ct. 3034.²

In a recent opinion, the Second Circuit Court of Appeals explained that “the standard for reviewing administrative determinations ‘requires a more critical appraisal of the agency determination than clear-error review ... but ... nevertheless[ ] falls well short of complete de novo review .... [I]n the course of th[is] oversight, the persuasiveness of a particular administrative finding, or the lack thereof, is likely to tell the tale.’ ” M.H. v. N.Y.C. Dep't of Educ., 685 F.3d 217, 244 (2d Cir.2012) (quoting Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1086–87 (1st Cir.1993)). “[T]he district court's analysis will hinge on the kinds of considerations 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. But the district court's determination of the persuasiveness of an administrative finding must also be colored by an accute [sic] awareness of institutional competence and role.” Id.

The Court of Appeals has also explained that “federal courts reviewing administrative decisions must give ‘due weight’ to these proceedings, mindful that the judiciary generally ‘lack[s] the specialized knowledge and experience necessary to resolve persistent and difficult questions of educational policy.’ ” Gagliardo II, 489 F.3d at 113 (quoting Rowley, 458 U.S. at 206, 208, 102 S.Ct. 3034);see also Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 191 (2d Cir.2005). Deference to the decision in the administrative record is particularly appropriate when the administrative officers' review has been thorough and careful, and when the court's decision is based solely on the administrative record. See Walczak, 142 F.3d at 129;Frank G. v. Bd. of Educ., 459 F.3d 356, 367 (2d Cir.2006); see also R.S., 2011 WL 1198458, at *1.

II.

The following facts and procedural background are taken from the administrative record and the submissions of the parties. The facts are undisputed unless otherwise noted.

A. IEP AND PLACEMENT

D.C. is the mother of E.B., a child classified with autism and diagnosed with pervasive development disorder, mild mental retardation, and severe language disorder. (Pl.'s R. 56.1 Stmt. ¶ 1; Defs.' Resp. to Pl.'s R. 56.1 Stmt. (“Defs.' 56.1 Resp.”) ¶ 1; Ex. 1 (“IEP”) at 5.) ³ E.B. was born in 2000 and was ten years old at the time of the 2010–2011 school year. (IEP at 1.) E.B. has also been diagnosed with asthma and has severe allergies to seafood. (Pl.'s R. 56.1 Stmt. ¶¶ 1–2; Defs.' 56.1 Resp. ¶¶ 1–2.) E.B.'s seafood allergy is triggered not only by ingestion of seafood particles, but also by skin exposure, such as by touch, or aerosol exposure, such as by smell. (Ex. X at 3; see also Tr. 289–96.) ⁴ The allergy is so severe that it causes anaphylaxis, the most severe form of allergic reaction which is, by definition, life threatening. (Ex. X at 3.)

E.B. has attended the Rebecca School, a non-public school in New York City, since 2007. (Tr. 296.) The plaintiff represents that the Department paid for the Rebecca School for the 2007–2008, 2008–2009, and 2009–2010 school years. ⁵ (Tr. 27; Exs. R & S; Verified Pet.⁶ ¶ 7.)

As of April 2010, there had not been a CSE meeting and E.B. had not received an IEP for the 2010–2011 school year. ( See IEP; Ex. F.) On April 30, 2010, D.C. entered into an enrollment contract with the Rebecca School for E.B. for the 2010–2011 school year. (Ex. Q.) The plaintiff represents that D.C. entered into the enrollment contract because she was concerned that the Department would fail to place E.B. at a school for the 2010–2011 school year, as it had in years past, and E.B. would lose his spot at the Rebecca School. (Verified Ans.⁷ ¶¶ 44–45; Hr'g Tr. 8, Feb. 22, 2013.) The enrollment contract provided that D.C. would pay tuition of $92,100. (Ex. Q at 1.) The contract further provided that D.C. would have no obligation to pay tuition if she subsequently placed E.B. in a school in accordance with the as-of-yet undeveloped IEP for the 2010–2011 school year:

[D.C.] will be released from continuing responsibility for tuition payments under this contract, and Rebecca School will reimburse [D.C.] for all prior...