386 F.3d 158 (2nd Cir. 2004), 03-7860, Mackey ex rel. Thomas M. v. Board of Educ. For Arlington Central School Dist.

Docket Nº:03-7860.
Citation:386 F.3d 158
Party Name:Thomas MACKEY, Parent of a disabled student, Thomas M.; Barbara Mackey, Parent of a disabled student, Thomas M., Plaintiffs-Appellants, v. BOARD OF EDUCATION FOR THE ARLINGTON CENTRAL SCHOOL DISTRICT; The State Education Department, Defendants-Appellees.
Case Date:October 07, 2004
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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386 F.3d 158 (2nd Cir. 2004)

Thomas MACKEY, Parent of a disabled student, Thomas M.; Barbara Mackey, Parent of a disabled student, Thomas M., Plaintiffs-Appellants,



No. 03-7860.

United States Court of Appeals, Second Circuit

October 7, 2004

Argued: Aug. 25, 2004

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Rosealee Charpentier, Family Advocates, Inc., Kingston, NY, for Plaintiffs-Appellants.

Jeffrey J. Schiro, Kuntz, Spagnuolo, Scapoli & Schiro, P.C., Bedford Village, NY, for Appellee Board of Education for the Arlington Central School District.

Carol Fischer, Assistant Solicitor General (Ann P. Zybert, Assistant Solicitor General, and Marion R. Buchbinder, Senior Assistant Solicitor General, on the brief), for Eliot Spitzer, Attorney General of the State of New York, New York, NY, for Appellee State Education Department.

Before: MESKILL, MINER, and KATZMANN, Circuit Judges.

KATZMANN, Circuit Judge.

This case presents the question of whether the parents of a learning disabled child are entitled to equitable relief under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1490, reimbursing them for private school tuition, when the denial of reimbursement results solely from the untimely issuance of a state administrative decision. The suit arises from the complaint of plaintiffs-appellants, Thomas and Barbara Mackey (the "parents"), against defendants-appellees, the Board of Education for the Arlington Central School District (the "District") and the State Education Department (the "State"), alleging that the District is obligated to reimburse them for the cost of placing their son in private school for the 2000-2001 academic year and that they are entitled to declaratory relief relating to the State violation of various procedural safeguards mandated under the IDEA. The parents' tuition reimbursement claim is premised on two separate theories: (1) that the individualized education plan ("IEP") fashioned by the District for the 2000-2001 school year was inadequate (the "IEP inadequacy claim"); and (2) that the private school was the child's pendency placement for the 2000-2001 school year (the "pendency claim"). The district court granted the District's motion for summary judgment and the State's motion to dismiss, and entered judgment in favor of defendants. In a summary order issued simultaneously with this opinion, we affirm the district court's dismissal of the parents' IEP inadequacy claim and of their request for declaratory relief against the State. We write here to address the parents' pendency claim. We conclude that the district court erred in holding that the parents were not entitled to reimbursement on a pendency basis. We therefore reverse the judgment of the district court and remand for further proceedings consistent with this opinion.



The IDEA offers federal funds to states that demonstrate, inter alia, that

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they have developed plans to assure "all children with disabilities residing in the state" a "free appropriate public education" ("FAPE"). 20 U.S.C. § 1412(a) (1) (A) (2000); see Bd. of Educ. v. Rowley, 458 U.S. 176, 180-81, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). To meet the IDEA requirements, a school district must provide each child who has a disability with "special education and related services," 20 U.S.C. § 1401(8), that are "reasonably calculated to enable the child to receive educational benefits." Rowley, 458 U.S. at 203-04, 206-07, 102 S.Ct. 3034. "The centerpiece of the IDEA's education delivery system is the individualized education program, or IEP," Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195, 197 (2d Cir. 2002) (internal quotations marks omitted), a document in which "[t]he particular educational needs of a disabled child and the services required to meet those needs" are "set forth at least annually," Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998). New York State has "assigned responsibility for developing appropriate IEPs to local Committees on Special Education ('CSE')." Id. at 123.

The IDEA provides a variety of "procedural safeguards with respect to the provision of free appropriate public education" by school districts. 20 U.S.C. § 1415(a). In compliance with these requirements, New York State has implemented a "two-tier system of administrative review." Murphy, 297 F.3d at 197. The first tier entitles parents dissatisfied with a proposed IEP to have it reviewed before an impartial hearing officer ("IHO") appointed by the board of education. N.Y. Educ. Law § 4404(1) (McKinney 2001); see generally 20 U.S.C. § 1415(f). The IHO is required to render a decision "not later than 45 days after the receipt by the board of education of a request for a hearing." N.Y. Comp.Codes R. & Regs. tit. 8, § 200.5(i) (4) (2004). "[P]arties aggrieved by the outcome of the due process hearing may" proceed to the second tier, "an appeal before a state review officer ('SRO')." Murphy, 297 F.3d at 197; see N.Y. Educ. Law § 4404(2); see generally 20 U.S.C. § 1415(g). The SRO is required to reach a decision and mail it to the parties "not later than 30 days after the receipt of a request for a review." N.Y. Comp.Codes R. & Regs. tit. 8, § 200.5(j) (2) (2004). Any party still aggrieved may sue in state or federal court. See 20 U.S.C. § 1415(i) (2).

During the pendency of special education proceedings, unless the school district and the parents agree otherwise, federal and state law require that the child remain in his or her then-current educational placement. See 20 U.S.C. § 1415(j) (the "stay-put" provision); 34 C.F.R. § 300.514(a)1; N.Y. Educ. L. § 4404(4) (a). Parents should, however, keep in mind that if they "unilaterally change their child's placement during the pendency of review proceedings, without the consent of state or local officials, [they] do so at their own financial risk." Sch. Comm. v. Dep't of Ed., 471 U.S. 359, 373-74, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985). A claim for tuition reimbursement pursuant to the stay-put provision is evaluated independently from the evaluation of a claim for tuition reimbursement pursuant to the inadequacy of an IEP. "[Section 1415(j) represents] Congress' policy choice

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that all handicapped children, regardless of whether their case is meritorious or not, are to remain in their current educational placement until the dispute with regard to their placement is ultimately resolved." Susquenita Sch. Dist. v. Raelee S., 96 F.3d 78, 83 (3d Cir. 1996) (emphasis supplied, internal quotation marks omitted), cited with approval in Bd. of Educ. v. Schutz, 290 F.3d 476, 484 (2d Cir. 2002).

II. Factual and Procedural Background

In 1988, the District classified the Mackeys' son Thomas ("T.M.") as learning disabled. T.M. attended special-education and inclusion classes at the public elementary and middle school, except for a short period of time in the seventh grade. During the ninth and tenth grades (the 1997-1998 and 1998-1999 school years, respectively), T.M. enrolled in special-education classes at Arlington High School and received special instruction in vocational education and career activities, pursuant to the IEPs developed for those years.

A. The 1999-2000 School Year (not at issue in this action)

In July 1999, after expressing their view that T.M.'s 1999-2000 IEP contained serious deficiencies, the parents informed the District that they would be enrolling T.M. at Maplebrook School in Armenia, New York for the 1999-2000 school year and would seek tuition reimbursement for that placement. In October 1999, the parents requested a due process hearing to obtain tuition reimbursement from the District, the hearing took place between January and May 2000. In September 2000, the IHO found that the District had provided T.M. with a FAPE and rejected the parents' tuition reimbursement claim. On November 9, 2000, the parents appealed to the SRO. Almost a year later, on November 21, 2001, the SRO rendered a decision, finding that 1) the IHO had erred in concluding that the District provided T.M. a FAPE for 1999-2000, and 2) the parents had shown that T.M.'s special educational needs had been met at Maplebrook. The SRO ordered the District to reimburse the parents for the 1999-2000 Maplebrook tuition. The District challenged the SRO's decision in federal court and lost. The District appealed, but later withdrew the appeal and, in May 2002, reimbursed the parents for T.M.'s tuition at Maplebrook.

B. The 2000-2001 School Year (the year at issue)

Although the IHO had not yet issued a decision on the parents' tuition reimbursement claim for Maplebrook for the 1999-2000 school year, the CSE presented the parents with an IEP for the 2000-2001 school year, which the parents rejected during an August 31, 2000 meeting. At the meeting, the parents informed the District that they would be placing T.M. at Maplebrook for a second year. In October 2000, the parents asked the District for class profiles for the special-education classes recommended in the IEP. Nineteen days later, the Special Education Director responded that he "did not routinely develop class profiles" for those classes. On January 6, 2001, the parents formally requested an impartial hearing, seeking tuition reimbursement relating to T.M.'s placement at Maplebrook for the 2000-2001 school year. The hearings took place between March and May 2001. In June 2001, the IHO denied the parents' reimbursement claim, finding that T.M.'s unilateral placement at Maplebrook "was not the least restrictive environment and [was] therefore inappropriate," and that the District had provided a FAPE.

In July 2001, the parents appealed the IHO's decision. Almost a year later, on June 20, 2002, the SRO dismissed the appeal,

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finding that the high school...

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