E.M. v.

758 F.3d 442

E.M., as parent and natural guardian of N.M., an infant, Plaintiff–Appellant,

v.NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant–Appellee.

Docket No. 11–1427–cv.

United States Court of Appeals, Second Circuit.

Argued: Feb. 5, 2013.

Decided: July 11, 2014.

William B. Adams (Ellison S. Ward, on the brief), Quinn Emanuel Urquhart & Sullivan, LLP, New York, NY, for Plaintiff–Appellant.

Julie Steiner (Edward F.X. Hart, G. Christopher Harriss, Brian Reimels, John Buhta, on the brief), for Michael A. Cardozo, Corporation Counsel of the City of New York, New York, NY, for Defendant–Appellee.

Rebecca C. Shore, New York, NY, for amici curiae Advocates for Children of New York, Legal Services NYC Bronx, Manhattan Legal Services, New York Lawyers for the Public Interest, Queens Legal Services, and South Brooklyn Legal Services in support of Plaintiff–Appellant.

Before: KEARSE, JACOBS, and CARNEY, Circuit Judges.

SUSAN L. CARNEY, Circuit Judge:

Plaintiff E.M. is a mother with limited financial means who is raising a severely disabled child in New York City. In 2008, E.M. unilaterally withdrew her daughter, N.M., from public school and enrolled her in a private learning center, asserting that the New York City Department of Education (the “Department”) failed to provide N.M. with the free appropriate public education that is required by the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq. (“IDEA”).¹ Although E.M. has not paid—and is likely unable to pay out-of-pocket—any tuition to the private school, she brought this action against the Department seeking a court order that would direct the Department to pay the private school, retroactively, the amount of her daughter's tuition for the 2008–2009 school year.

This case raises two independent questions: first, whether E.M. has Article III standing to sue the Department under the IDEA for direct, retroactive payment of private school tuition for 2008–2009; and second, whether E.M.'s legal challenges to the Department's proffered Individualized Education Program (“IEP”) have merit.² We answer the first question in the affirmative. Although there is reason to believe that the school may not seek to enforce the obligation absent success by E.M. in her IDEA challenge to the Department's IEP, E.M. was legally obligated by the enrollment contract that she signed to pay tuition to the private school. Contrary to the state hearing officer, we conclude that this legal obligation gives E.M. standing under Article III to pursue her challenge to the IEP and seek direct retroactive tuition payment. As to the second question, we determine, based on recent Circuit precedent, that because the state administrative officer impermissibly relied on retrospective evidence extrinsic to the IEP in determining that the IEP provided the “free appropriate public education” (“FAPE”) required by the IDEA,³ the district court erred in affirming the state officer's decision. See E.M. v. New York City Dep't of Educ., No. 09 Civ. 10623(DAB), 2011 WL 1044905 (S.D.N.Y. Mar. 14, 2011). The record before us, however, does not permit us to resolve the merits of E.M.'s challenge to the IEP. We therefore remand the cause to the district court for further proceedings consistent with this opinion.

BACKGROUND

I. Factual Background ⁴A. N.M.'s Disability and Schooling

N.M. was born in March 2002. She is severely autistic. When she had passed her eighth birthday (in April 2010), she was entirely non-verbal, had a limited attention span, and was prone to self-stimulatory and injurious behaviors, including drumming her fingers on her lips, “spinning” instead of walking in a straight line, and continually poking her eyes. She exhibited potentially harmful “mouthing behaviors,” including placing objects like shaving cream and chalk in her mouth. She also faced substantial physical limitations, which required her to use (among other therapies) “fixed ankle foot orthotics” to prevent her calf muscles from shortening. Joint Appendix (“J.A.”) at 786.

N.M. began attending a private pre-school called Reach for the Stars Learning Center (“RFTS” or the “Center”) in 2005, when she was three years of age.⁵ During her time at the Center, N.M. received one-on-one (“1:1”) Applied Behavioral Analysis (“ABA”) therapy throughout the school day. ⁶ It was the view of the associate educational director of the Center, Helene Wasserman, who later testified before the state hearing officer, that N.M. was “in need of a one to one [supervision] at all times. Her behaviors seriously interfere[d] with her learning ... [and] she had a lot of self [-]injurious behaviors that needed a lot of direct care....” J.A. 575–76.

In March 2008, a New York City Department of Education Committee on Special Education (the “Committee”) was convened to create an IEP for N.M. for her kindergarten year, upcoming in September 2008.⁷ The IEP prepared by the Committee recognized that N.M. required “highly intensive” supervision, J.A. 691, but it did not provide for full-time 1:1 instruction. Instead, it called for N.M. to be placed in a special education classroom with a staffing ratio of 6:1:1 (six students for every one teacher and one paraprofessional), and directed that N.M. receive instruction on a twelve-month calendar. It also included a Behavioral Intervention Plan (“BIP”) for N.M., and it recommended, among other things, that the Department (1) provide 1:1 occupational therapy for thirty minutes twice a week; (2) provide 1:1 physical therapy for thirty minutes twice a week; and (3) provide 1:1 speech and language therapy for forty-five minutes three times a week. In other words, under the IEP proffered by the Department, N.M. was slated to receive a total of four hours and fifteen minutes of 1:1 educational services each week.

B. Re-enrollment in RFTS

E.M. evaluated the Department's recommended public classroom placement for her daughter in early summer 2008, and found it unsuitable. In her view, where there were more students than teachers in the classroom, it would be impossible for her child to receive the very close supervision that she needed, and which E.M. believed should be 1:1 during the whole school day.

On August 15, 2008, E.M. notified the Department that she would re-enroll N.M. at the Center for the 2008–2009 school year. Three days later, she formally enrolled N.M. there by signing an enrollment contract. The executed contract provides that E.M. and her husband “assume ... complete financial responsibility for the enrollment of [N.M. at RFTS] for the year 2008–2009,” and that they agree “to pay when due the Annual Tuition and Fees.” J.A. 759. The contract specifies an annual tuition of $85,000, but leaves blank the spaces provided for designating a payment schedule and the amount of a deposit that “must accompany this signed Contract to make it valid.” Id.

In an affidavit, Nancy Levy, General Co–Director of RFTS, explained that as of November 12, 2008, the Center had received no tuition payment for N.M., but that the parents and school had agreed that E.M. and her husband would contact an “advocate or attorney and seek funding” from the Department.⁸ J.A. 758. E.M. later testified that, as of May 2009, she had not paid any tuition to the Center for the 2008–2009 school year because “we don't have that money to pay the school.” J.A. 536.⁹

C. Due Process Complaint

By letter dated November 26, 2008, E.M. (through counsel) submitted to the Department a request for an impartial hearing under the IDEA. The request stated that E.M. “rejected the recommended program because she maintains that [N.M.] requires one to one teaching across all domains to master any skill.” J.A. 750.

D. December 2008 IEP

In December 2008, the Department convened a second Committee and amended the first proposed 2008–2009 IEP for N.M., taking into account new evidence submitted by Department officials who had observed N.M. at the Center and the reports on N.M.'s progress that were made by Center employees. The new evidence included a classroom observation report completed by a Department official, who observed that N.M. “pokes her eyes, bangs her head and throws herself backwards onto the floor. She is self-injurious and aggressive to others. She jumps, gallops and flaps.” J.A. 123. Although the amended IEP expanded N.M.'s access to related services, it did not alter the Committee's previous recommendation that N.M. be placed in a 6:1:1 classroom. J.A. 737. E.M. renewed her challenge to the Department's proffered IEP.

II. Procedural HistoryA. IHO Opinion

Between March and May 2009, the Department and E.M. submitted evidence to an Impartial Hearing Officer (“IHO”) charged with addressing E.M.'s allegations that, like the earlier IEP, the December 2008 IEP was substantively deficient because (among other flaws) it did not provide N.M with all-day 1:1 supervision.¹⁰

In a written opinion issued in June 2009, the IHO denied N.M.'s request for tuition reimbursement or direct payment to the Center. Declining to address the substantive question whether N.M. would have received a FAPE in the educational setting proposed by the IEP, the IHO concluded instead that, as argued by the Department, E.M. lacked standing to bring a claim for tuition reimbursement because she “has paid nothing to [RFTS] for Student's enrollment there during the 2008–2009 school year, nor does it appear that [she] is in any way obligated to do so.” J.A. 192. The IHO found that, when E.M. enrolled her daughter in RFTS, she was “clearly without the financial resources that would have permitted the incurrence of such debt,” and therefore she had not incurred any financial risk or obligation. J.A. 191, 193. The IHO further rejected E.M.'s request for an order directing the Department to pay the Center directly, reasoning that the IDEA restricts “the right and opportunity to seek recourse under its provisions solely to parties for whom [the] legislation was intended—the...