R.S v. N.Y.C. Dep't of Educ.

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R.S., by and through his parents and next friends, C.S. and RO.S., and C.S. and RO.S, individually; T.W.C., by his parents and next friends, E.Y. and T.C., and E.Y. and T.C. individually; and A.W., by his parents and next friends, F.S. and N.W., and F.S. and N.W., individually, Plaintiffs and Plaintiffs-Intervenors, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant.

No. 21-cv-10596 (LJL)

United States District Court, S.D. New York

March 6, 2023

OPINION AND ORDER

LEWIS J. LIMAN, UNITED STATES DISTRICT JUDGE:

Plaintiffs^[1] and Plaintiffs-Intervenors,^[2] who bring this action pursuant to the Individuals with Disabilities Education Improvement Act (“IDEA”), 20 U.S.C. § 1401 et seq. move, pursuant to Federal Rule of Civil Procedure 56, for summary judgment. Dkt. No. 34. The New York City Department of Education (“Defendant” or “DOE”) cross-moves, pursuant to Federal Rule of Civil Procedure 56 for summary judgment. Dkt. No. 38. Plaintiffs and Plaintiffs-Intervenors also seek to add another student plaintiff-intervenor as well as his parents to the case. Dkt No. 62.

For the reasons that follow, the motions for summary judgment are denied as moot and the case is dismissed. The Court also denies Plaintiffs' and Plaintiffs-Intervenors' request to add another student plaintiff-intervenor as well as his parents to this case.

BACKGROUND

The relevant facts in this action are not in dispute.

I. Statutory and Regulatory Background

The IDEA provides for the disbursement of federal funds to states that develop plans to, among other things, provide a free and appropriate public education (“FAPE”) to children with disabilities. See Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 525 (2d Cir. 2020). “The mechanism established by the IDEA to guarantee a FAPE to disabled children is the IEP” or “individualized education program.” Thomason v. Porter, 2023 WL 1966207, at *5 (S.D.N.Y. Feb. 13, 2023). The provision of a FAPE to a student with a disability requires the school district to develop an IEP “reasonably calculated to enable the child to receive educational benefits.” T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151 (2d Cir. 2014) (quoting Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley, 458 U.S. 176, 207 (1982)). In New York, local Committees on Special Education (“CSE”), the members of which are appointed by school boards or the trustees of school districts, are assigned the responsibility for developing appropriate IEPs. See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir. 2007). “The IEP, the result of collaborations between parents, educators, and representatives of the school district, ‘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.'” Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195, 197 (2d Cir. 2002) (quoting Honig v. Doe, 484 U.S. 305, 311 (1988)).

“Concerned that parental input into the creation of the IEP would not be sufficient to safeguard a child's right to a free and appropriate education, Congress also included within the IDEA procedural safeguards that enable parents and students to challenge the local educational agency's decisions.” Id. New York has instituted a two-tier administrative review procedure. Id. (citing N.Y. Educ. Law § 4404). First, parents may obtain review of the IEP by filing a due process complaint which is heard by an impartial hearing officer (“IHO”). N.Y. Educ. Law § 4404(1). Second, parties aggrieved by the decision of the IHO may appeal to the state review officer (“SRO”). Id. § 4404(2). “The SRO's decision is final[] and concludes the state administrative review.” Melendez v. New York City Dep't of Educ., 420 F.Supp.3d 107, 113 (S.D.N.Y. 2019) (quoting Bd. of Educ. of Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d 476, 481 (2d Cir. 2002)). “Upon issuance of a final administrative decision, however, a dissatisfied party has the right to bring a civil action in either federal or state court pursuant to the IDEA.” Schutz, 290 F.3d at 481.

A parent aggrieved by the choice of school reflected in the IEP may unilaterally change their child's placement, without the consent of state or local school officials and “if ultimately successful in the review proceedings, they are permitted to seek retroactive recovery of past tuition expenses.” Id. But a parent does so at his or her own risk. Id. If the SRO, and court upon review, conclude that the IEP has provided the student a FAPE, the parent will bear the cost of the unilateral placement.

At issue in this case is a provision in the IDEA known as the “pendency” or “stay-put” provision. See 20 U.S.C. § 1415(j). That provision requires that “during the pendency of any proceedings conducted pursuant to this section . . . the child shall remain in the then-current educational placement of the child ....” Id. The purpose of the provision is “to maintain the educational status quo while the parties' dispute is being resolved” and the stay-put order acts as an automatic preliminary injunction during the pendency of the proceedings. T.M. ex rel. A.M., 752 F.3d at 152; see D.C. v. Oliver, 991 F.Supp.2d 209, 212 (D.D.C. 2013). Thus, regardless whether the “then-current placement” for the student is the school designated in the IEP, the student is permitted to remain in that school-to “stay put”-and to have her education funded, until the conclusion of the due process hearing or another pendency-setting event. The “stay-put” provision “requires a school district to continue funding whatever educational placement was last agreed upon for the child until the relevant administrative and judicial proceedings are complete.” Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 (2d Cir. 2015).

The parties agree that there are at least three pendency-setting events that may occur that would effectuate a change to an individual student's pendency program for purposes of the stay-put provision: (1) an agreement between the parents and the school district, such as a settlement agreement that specifies a pendency placement; (2) an unappealed IHO or SRO decision on the merits determining the FAPE for a student; and (3) a determination by a court on review of an SRO's decision determining the FAPE for a student. Dkt. No. 62 at 2 n.2; Dkt. No. 64 at 1-2. Upon the occasion of any of those events, the student's pendency placement will be that reflected in the settlement agreement, the unappealed IHO or SRO decision on the merits, or the court determination. The dispute in this case concerns whether there is an additional pendency-setting event that would effectuate a change in an individual student's pendency program on a going forward basis: that is, an unappealed Order of Pendency entered by an IHO in a due process proceeding. Dkt. No. 35 at 2.

II. Plaintiffs and Plaintiffs-Intervenors

In its current posture, this case involves pendency claims of three New York students who are covered under the IDEA: R.S., T.W.C., and A.W. Dkt. Nos. 24, 57. Each brings the action by and through their parents. Dkt. Nos. 24, 57. The Court discusses each student's placement in detail.

A. R.S.

As of the date of the Second Amended Complaint (“SAC”), R.S. was a sixteen-year old student with a disability receiving special education services from the DOE. Dkt. No. 24 ¶¶ 3, 20. Pursuant to an IEP dated April 25, 2017, R.S. attended the Community School from fourth to seventh grade. Id. ¶ 4; Dkt. No. 24-1 at 2. The Community School has an Upper School that starts in eighth grade; the Community School did not offer R.S. a placement in that Upper School for eighth grade. Dkt. No. 24 ¶ 35. Accordingly, without a pendency placement, R.S.'s parents unilaterally placed R.S. at the Winston Preparatory School (“Winston”) for the 2018-2019 (or eighth-grade) school year. Id. ¶¶ 4, 36; Dkt. No. 24-1. DOE subsequently funded tuition for that placement pursuant to a settlement agreement between the parties. Dkt. No. 24 ¶ 36. R.S.'s parents re-enrolled R.S. in Winston for the 2019-2020 school year and filed a due process complaint to obtain an appropriate placement, requesting that during the pendency of the due process hearing, DOE fund Winston. Id. ¶ 37. The IHO held a hearing on pendency on September 20, 2019. Id. The IHO issued an interim order a few days later holding that Winston was R.S.'s pendency placement. Id. On September 24, 2019, the IHO issued an interim order on pendency, rejecting DOE's position that the program at Winston was not consistent with the last agreed upon program and finding that R.S.'s placement at Winston should be maintained because there was “no placement offer currently in effect” and R.S. had attended Winston for the prior two school years. Dkt. No. 24-1 (citing Gabel ex rel. LG v. Board of Educ of Hyde Park, 368 F.Supp.2d 313 (S.D.N.Y. 2005)). The order was not appealed, and the hearing was resolved by a settlement agreement according to which the DOE funded Winston for the 20192020 school year. Dkt. No. 24 ¶ 37.

For tenth grade (2020-2021), R.S.'s parents again enrolled R.S. in Winston and filed a due process complaint to obtain an appropriate placement and requested that, during the pendency of the due process hearing, DOE fund Winston. Id. ¶ 38. On December 19, 2020, IHO Ned Kassman issued an interim pendency order finding pendency to be at Winston and directing DOE to fund the pendency placement from the date of the due process complaint through the resolution of the due process complaint. Dkt. No. 24-2 at 20. IHO Kassman found that the 2017 IEP did not identify a ...