Jane Doe v. E. Lyme Bd. of Educ.

962 F.3d 649

Jane DOE, John Doe, By and Through His Parent Jane Doe, Plaintiffs-Appellants,

v.EAST LYME BOARD OF EDUCATION, Defendant-Appellee,Connecticut State Department of Education Defendant.

Docket No. 19-354

August Term 2018

United States Court of Appeals, Second Circuit.

Argued: November 14, 2018

Decided: June 18, 2020

Jane Doe, pro se, Old Lyme, CT, for Plaintiffs-Appellants.

Sheldon D. Myers, Kainen, Escalera & McHale, P.C., Hartford, CT, for Defendant-Appellee.

Before: JACOBS, POOLER, and WESLEY, Circuit Judges.

WESLEY, Circuit Judge:

Appellant Jane Doe ("Doe"), through counsel, sued the East Lyme Board of Education (the "Board") on behalf of herself and her son, John Doe ("John"), under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400 et seq. , alleging that the Board denied John a free appropriate public education ("FAPE") and violated the "stay-put" provisions of the IDEA by refusing to pay for services mandated by John's individualized education plan ("IEP").¹ The district court granted summary judgment (in part) to Doe on the stay-put claim and ordered reimbursement of certain mandated services for which Doe had paid out-of-pocket. It granted summary judgment to the Board on the other claims, reasoning that the Board had provided a FAPE during the 2009–2010 school year and Doe's placement of her son in a private school had been inappropriate. Both parties appealed. We affirmed the district court's substantive rulings but vacated the reimbursement award and remanded for the limited purpose of calculating and structuring a prospective, compensatory education award. See Doe v. E. Lyme Bd. of Educ. , 790 F.3d 440 (2d Cir. 2015) (" Doe I ").

On remand, after a three-day bench trial, the district court awarded Doe reimbursement for past expenses relating to services covered by John's IEP. It denied any reimbursement for tuition or for services Doe provided that were not mandated by the IEP. It ordered that the compensatory funds be placed in an escrow account with certain restrictions. Doe appealed pro se .² We dismissed that appeal for lack of appellate jurisdiction, but allowed Doe to appeal again once the district court entered a new judgment that included a prejudgment interest calculation. Doe v. E. Lyme Bd. of Educ. , 747 F. App'x 30, 30–31 (2d Cir. 2019) (summary order) (" Doe II ").

Following our dismissal, the district court approved a formula for calculating interest and entered a new judgment. Doe now appeals for a third time, pro se , resulting in a new appeal in the above-captioned case. We permitted the parties to file supplemental briefs.³

For the reasons stated below, we vacate and remand the judgment of the district court as to: (1) the power of the escrow agent to unilaterally decide whether John still requires certain educational services, and (2) the requirement that Doe pay for half the maintenance fee on the escrow account. We affirm the district court's order in all other aspects.

BACKGROUND

A. Facts

Doe and her son, John, resided within the District of East Lyme, Connecticut (the "District") at all relevant times. Shortly before turning three years old, John was diagnosed with autism and he requires special education services.⁴ John attended East Lyme public schools from preschool through the middle of first grade. He was then placed in Hope Academy ("Hope"), a private special education facility in Orange, Connecticut. He attended Hope Academy at the Board's expense for the rest of the 2006–2007 school year and remained there for the 2007–2008 school year.

During a June 2008 Planning and Placement Team meeting, the Board proposed an IEP where John would continue at Hope for third grade during the 2008–2009 school year. In August 2008, Doe expressed concerns about John's social development at Hope to Stephen Buck, the Board's then-Director of Special Education. Doe's concerns included John's lack of interaction with typical peers, and a report that another Hope student had harassed and hit John at school. Buck agreed to place John on a leave of absence from Hope. In September 2008, Doe enrolled John at Solomon Schechter Academy ("Solomon Schechter"), a private religious school in New London, Connecticut, at her own expense. Solomon Schechter did not provide specialized instruction to students with disabilities, nor did it employ staff certified to provide such instruction.

In December 2008, Doe and the Board agreed to an IEP placing John at Solomon Schechter (the "2008–2009" or "stay-put" IEP). Under the 2008–2009 IEP, Doe would pay Solomon Schechter's tuition costs, but the Board would provide funding for related services.⁵ These services included Orton–Gillingham reading instruction (5 hours/week), speech therapy (2.5 hours/week), and occupational/physical therapy (1.5 hours/week). In February 2009, the parties amended the 2008–2009 IEP to increase speech therapy to three hours per week.

In June 2009, the Board informed Doe that it would not pay for tuition at Solomon Schechter should she continue John's placement there. The Board proposed instead that John enroll at Niantic Center School ("Niantic"), a public school in the District with a qualified special education teacher. Doe disagreed with this placement. Nevertheless, the Board issued an IEP placing John at either Niantic or Flanders Elementary (John's home elementary school), with specified related services (the "2009–2010 IEP").

Doe faxed a letter to the Board rejecting the 2009–2010 IEP, explaining her intention to keep John at Solomon Schechter, and outlining additional services she planned to secure for John. She also communicated her expectation that such services would be provided at public expense, including, for the first time, "the cost of the placement at [Solomon Schechter.]" Doe App. 103. John continued to attend Solomon Schechter for the 2009–2010 school year.

In August 2010, Doe again provided written notice of her intention to continue John's enrollment at Solomon Schechter for the 2010–2011 school year, with specified related services, and her expectation that she would be reimbursed for her expenses, including the cost of the placement at Solomon Schechter. The Board did not provide John with an IEP for the 2010–2011 school year.⁶

B. Procedural History

On April 27, 2010,⁷ Doe filed an administrative due process complaint with the State of Connecticut under the IDEA. See 20 U.S.C. § 1415(b)(6), (f) ; Conn. Gen. Stat. § 10–76h. Doe alleged that the Board failed to provide John a FAPE and violated various requirements under both the IDEA and Connecticut law. She sought reimbursement of Solomon Schechter tuition for the 2009–2010 and 2010–2011 school years, and the costs of additional services she secured as a result of the Board's alleged violations.⁸

After an administrative hearing, the hearing officer found that (1) the Board offered John a FAPE for school years 2008–2010, (2) the Board failed to provide a FAPE during the 2010–2011 school year, (3) Solomon Schechter was an inappropriate placement due to its lack of special education services, and therefore (4) Doe was not entitled to reimbursement for Solomon Schechter tuition.⁹

1. Doe's First Appeal

Following the hearing officer's decision, Doe, through counsel, filed a complaint in the United States District Court for the District of Connecticut, alleging that the Board denied John a FAPE, that Solomon Schechter was an appropriate placement, and that the Board had violated the "stay-put" provision of the IDEA. The parties cross-moved for summary judgment. The district court (Arterton, J. ) adopted the magistrate judge's recommendations and granted the Board's motion in part. It agreed that the Board provided John a FAPE in the 2009–2010 school year and that Solomon Schechter was an inappropriate placement, but held that the Board violated the IDEA's stay-put provision by failing to provide the related services in place under the 2008–2009 IEP once Doe and the Board reached an impasse concerning John's IEP. See Doe v. E. Lyme Bd. of Educ. , Civ. No. 3:11-CV-291 (JBA), 2012 WL 4344301, at *2–8 (D. Conn. Sept. 21, 2012). Thus, the district court ordered the Board to reimburse Doe for the out-of-pocket expenses she paid for such services during litigation. Both parties appealed.

On appeal, Doe argued that the Board's stay-put violation entitled her to the full value of the related services provided for in the 2008–2009 IEP, and not just the amounts she paid out-of-pocket. She also challenged the district court's decisions that John received a FAPE and that Solomon Schechter was an inappropriate placement. As relevant here, while Doe claimed that she should be reimbursed for Solomon Schechter tuition because it was an appropriate placement, she explicitly stated that she did "not assert any stay-put right to [Solomon Schechter] tuition." Doe I , 2d Cir. 14-1261, doc. 81, (Appellant Br.) at 25.

We affirmed in part, holding that the 2009–2010 IEP was procedurally and substantively adequate, and that John received a FAPE during the 2009–2010 school year. Doe I , 790 F.3d at 449–50. We also affirmed the district court's conclusion that, notwithstanding the Board's failure to provide a FAPE in the 2010–2011 school year, Doe was not entitled to reimbursement for Solomon Schechter tuition. Id. at 450–52.¹⁰

As to the stay-put claim, we affirmed the district court's conclusion that the Board violated the IDEA's stay-put provision on an ongoing basis by failing to provide John with the "related services" specified in the 2008–2009 IEP. Id. at 452–54. We explained that the relevant educational placement for purposes of the stay-put analysis was the 2008–2009 IEP (as amended in February 2009), which required that (1) Doe pay for Solomon Schechter tuition at her own expense, and (2) the Board pay for the "related services," i.e. , the Orton–Gillingham reading instruction (5 hours/week), speech therapy (3 hours/week), and occupational/physical therapy ...