De Paulino v. N.Y.C. Dep't of Educ.

959 F.3d 519

Rosa Elba VENTURA DE PAULINO, Individually and as p/n/g of R.P., Plaintiff-Appellant,

v.NEW YORK CITY DEPARTMENT OF EDUCATION and New York State Education Department Defendants-Appellees,Robert Brigilio, Defendant.

Maria Navarro Carrillo, as Parent and Natural Guardian of M.G. and Individually; Jose Garzon, as Parent and Natural Guardian of M.G. and Individually, Plaintiffs-Appellees,

v.New York City Department of Education, Defendant-Appellant.

No. 19-1662-cv

August Term 2019

No. 19-1813-cv

United States Court of Appeals, Second Circuit.

Argued: January 28, 2020

Decided: May 18, 2020

Karl J. Ashanti (Peter G. Albert, on the brief), Brain Injury Rights Group, Ltd., New York, NY, for Plaintiff-Appellant in Ventura de Paulino, and Karl J. Ashanti (Peter G. Albert, on the brief), Brain Injury Rights Group, Ltd., New York, NY, for Plaintiffs-Appellees in Navarro Carrillo.

Eric Lee, Assistant Corporation Counsel (Richard Dearing and Scott Shorr, on the brief), for James E. Johnson, Corporation Counsel of the City of New York, New York, NY, for City Defendant-Appellee in Ventura de Paulino, and Eric Lee, Assistant Corporation Counsel (Richard Dearing and Scott Shorr, on the brief), for James E. Johnson, Corporation Counsel of the City of New York, New York, NY, for Defendant-Appellant in Navarro Carrillo.

Blair J. Greenwald, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, and Steven C. Wu, Deputy Solicitor General, on the brief), for Letitia James, Attorney General, State of New York, New York, NY, for State Defendant-Appellee in Ventura de Paulino.

Before: Leval, Cabranes, and Sack, Circuit Judges.

José A. Cabranes, Circuit Judge:

The plaintiffs in these tandem cases, parents of students with disabilities ("Parents"), chose to withdraw their children ("Students") from one private school and to enroll them in a new private school. Shortly after, the Parents initiated administrative proceedings to challenge the adequacy of the Students’ individualized education programs ("IEPs"), written statements developed by a local committee on special education that set out, among other things, the Students’ educational needs and the services that must be provided to meet those needs.¹ The Parents also sued the New York City Department of Education ("City") under the Individuals with Disabilities Education Act ("IDEA")² to obtain public funding for the new school’s tuition and services during the pendency of the Students’ IEP disputes.

In the first case, Ventura de Paulino v. New York City Department of Education , No. 19-1662-cv, Plaintiff-Appellant Rosa Elba Ventura de Paulino ("Ventura de Paulino") appeals from an order denying her application for a preliminary injunction and from a final judgment entered on May 31, 2019, in the United States District Court for the Southern District of New York (George B. Daniels, Judge ), dismissing her lawsuit. In the second case, Navarro Carrillo v. New York City Department of Education , No. 19-1813-cv, the City appeals from an order entered on June 13, 2019, in the United States District Court for the Southern District of New York (Colleen McMahon, Chief Judge ), granting an application by Plaintiffs-Appellees Maria Navarro Carrillo ("Navarro Carrillo")³ and Jose Garzon ("Garzon") for a preliminary injunction directing the City to pay for the new school’s tuition and educational services.⁴

Although these tandem cases come to us in different procedural postures, they present the same material facts and legal issues. The Students’ educational program that was last agreed upon by the City and the Parents in the end of the 2017-2018 school year listed the International Academy of Hope ("iHOPE"), a private school, as the Students’ educational provider. Prior to the beginning of the 2018-2019 school year, the Parents unilaterally enrolled the Students in a new private school, the International Institute for the Brain ("iBRAIN"). On appeal, the Parents contend that the City is obligated to pay for the Students’ tuition at iBRAIN because iBRAIN’s educational program is substantially similar to the program that was offered at iHOPE, which the City consented to and paid for.

The question presented in these cases is one of first impression: whether under the "stay-put" provision of the IDEA parents who unilaterally enroll their child in a new private school and challenge the child’s IEP are entitled to public funding for the new school during the pendency of the IEP dispute, on the basis that the educational program being offered at the new school is substantially similar to the program that was last agreed upon by the parents and the school district and was offered at the previous school. More fundamentally stated, we must determine whether the fact that the school district has authority to decide how the child’s agreed-upon educational program is to be provided during the pendency of an IEP dispute means that the parents also have such authority.

In the circumstances presented, we conclude, on de novo review, that parents are not entitled to such public funding because it is generally up to the school district to determine how an agreed-upon program is to be provided during the pendency of the IEP dispute. Regardless of whether iBRAIN’s educational program is substantially similar to that offered previously at iHOPE, the IDEA does not require the City to fund the Students’ program at iBRAIN during the pendency of their IEP dispute; when the Parents unilaterally enrolled the Students at iBRAIN, the Parents did so at their own financial risk.

Accordingly, in Ventura de Paulino , we AFFIRM the May 31, 2019 judgment of the District Court in favor of the defendant school system; in Navarro Carrillo , we VACATE the District Court’s June 13, 2019 order granting the application for a preliminary injunction against the school system and REMAND the cause with instructions to dismiss the complaint for failure to state a claim upon which relief can be granted.⁵

I. BACKGROUND

A. The IDEA’s Legal Framework

The IDEA authorizes the disbursement of federal funds to States⁶ that develop appropriate plans to, among other things, provide a free and appropriate public education ("FAPE") to children with disabilities.⁷ To provide a FAPE to each student with a disability, a school district must develop an IEP that is "reasonably calculated to enable the child to receive educational benefits."⁸ The IEP must identify the student’s "particular educational needs ... and the services required to meet those needs."⁹

The IDEA also requires participating States to develop an administrative review process for parents who are dissatisfied with their child’s education and wish to challenge the adequacy of the child’s IEP.¹⁰ To that effect, the State of New York "has implemented a ‘two-tier system of administrative review.’ "¹¹ In the first tier, a parent can file an administrative "due process complaint" challenging the IEP and requesting a hearing before an impartial hearing officer.¹² The party aggrieved by the hearing officer’s decision may then "proceed to the second tier, ‘an appeal before a state review officer.’ "¹³ Once the state review officer makes a final decision, the aggrieved party may seek judicial review of that decision in a state or federal trial court.¹⁴

At the crux of these cases is a provision in the IDEA known as the "pendency" or "stay-put" provision.¹⁵ It provides that, while the administrative and judicial proceedings are pending and "unless the school district and the parents agree otherwise," a child must remain, at public expense, "in his or her then-current educational placement."¹⁶ The term "educational placement" refers "only to the general type of educational program in which the child is placed"¹⁷ —i.e. , "the classes, individualized attention and additional services a child will receive."¹⁸

Parents who are dissatisfied with their child’s education can "unilaterally change their child’s placement during the pendency of review proceedings"¹⁹ and can, for example, "pay for private services, including private schooling."²⁰ They "do so," however, "at their own financial risk."²¹ They can obtain retroactive reimbursement from the school district after the IEP dispute is resolved, if they satisfy a three-part test that has come to be known as the Burlington - Carter test.²² A parent can obtain such reimbursement if: "(1) the school district’s proposed placement violated the IDEA" by, for example, denying a FAPE to the student because the IEP was inadequate; (2) "the parents’ alternative private placement was appropriate"; and (3) "equitable considerations favor reimbursement."²³

B. The Parties’ Relationship and Administrative Proceedings

Ventura de Paulino is the mother of R.P., and Navarro Carrillo and Garzon are the parents of M.G. Both Students, R.P. and M.G., are minors with disabilities stemming from acquired brain injuries, who are entitled to a FAPE under the IDEA. During the 2017-2018 academic year, the Students were unilaterally enrolled by the Parents at iHOPE, a private school. The Parents filed due process complaints alleging that the Students’ IEPs proposed by the local committee on special education for that school year was inadequate and that iHOPE’s IEP was appropriate for the Students.

In both instances—in June 2018 in the case of R.P., and in April 2018 in the case of M.G.—impartial hearing officers determined that: (1) the City had failed to provide the Students with a FAPE in violation of the IDEA; (2) the Parents’ alternative placement at iHOPE for the 2017-2018 school year was appropriate; and (3) equitable considerations favored reimbursement to the Parents. The impartial hearing officers ordered the City to reimburse the Parents for the expenses incurred at iHOPE during the 2017-2018 school year and ordered the local committee on special education to draft a new IEP that incorporates all the items of iHOPE’s IEP. The City did not appeal.

Following the...