459 F.3d 356 (2nd Cir. 2006), 04-4981, Frank G. v. Board of Educ. of Hyde Park

Docket Nº:Docket No. 04-4981-CV.
Citation:459 F.3d 356
Party Name:FRANK G. and Dianne G., Parents of a Disabled Student, Anthony G., Plaintiffs-Appellees, v. BOARD OF EDUCATION OF HYDE PARK, Central School District, Defendant-Appellant.
Case Date:July 27, 2006
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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459 F.3d 356 (2nd Cir. 2006)

FRANK G. and Dianne G., Parents of a Disabled Student, Anthony G., Plaintiffs-Appellees,


BOARD OF EDUCATION OF HYDE PARK, Central School District, Defendant-Appellant.

Docket No. 04-4981-CV.

United States Court of Appeals, Second Circuit.

July 27, 2006

Argued: Aug. 3, 2005.

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Mark I. Reisman, P.C., Ossining, NY, for plaintiffs-appellees.

James P. Drohan, Donoghue, Thomas, Auslander & Drohan, (Daniel Petigrow, on the brief), Hopewell Junction, NY, for defendant-appellant.

Before POOLER, SOTOMAYOR, Circuit Judges, and KORMAN, District Judge.[*]

KORMAN, District Judge.

This appeal arises out of the efforts of the parents of a learning disabled child to obtain reimbursement for the private school tuition they incurred as a result of the failure of a local educational agency to provide him with a free appropriate public education. Specifically, defendant-appellant Board of Education of Hyde Park Central School District ("School District") appeals from a judgment of the United States District Court for the Southern District of New York (Brieant, J.) finding that the School District had failed to provide the learning disabled child of plaintiff-appellees Frank and Dianne G. a free appropriate public education as defined under the Individuals with Disabilities Act ("IDEA"), 20 U.S.C. § 1400 et seq. The School District argues that the district court erred in awarding plaintiff's reimbursement for tuition and attorneys' fees because, under the IDEA, Anthony's enrollment in private school was not appropriate and because the IDEA, 20 U.S.C. § 1412(a)(10)(C), permits reimbursement only where a child has previously received special education and related services. For the reasons stated below, we disagree with the School District's arguments and affirm the decision of the district court.


Frank and Diane G. are the adoptive parents of Anthony, who was born to a crack-addicted mother on May 21, 1991. Since the age of three, Anthony has been diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD"). During the 1997-98 school year, Anthony attended

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kindergarten at the Randolph School, a private school in Wappingers Falls, New York. From 1997 to 2001, Anthony completed first through fourth grade at Bishop Dunn School, a private school in Newburgh, New York. While Anthony did well at Bishop Dunn initially, as he progressed from first through fourth grade, his performance worsened in relation to the increasingly challenging academic environment and bigger class sizes he faced. In April 2000, in response to notification from Anthony's parents, the Committee on Special Education ("CSE") of the School District classified Anthony as learning disabled under the IDEA, Article 89 of the New York Education Law, and Part 200 of Title 8 of the Regulations of the Commissioner of Education.

During the spring of 2001, Anthony was evaluated by School District personnel. An occupational therapy evaluation conducted on February 1, 2001, revealed deficits in visual memory and visual sequential memory skills. The evaluator recommended that Anthony receive group occupational therapy twice a week. A Key Math Assessment administered on March 9, 2001, revealed severe deficiencies in subtraction and problem solving, and below average skills in rational numbers and in areas involving multi-step applications. During an in-class behavioral assessment, Anthony was observed engaging in a significant amount of off-task behavior.

An independent neuropsychological evaluation was conducted during the spring and early summer of 2001 by Dr. Miriam Lacher. She administered a standardized individual achievement test to Anthony, during which she observed him engaging in negative self-evaluations and experiencing difficulty formulating responses, shifting tasks, absorbing directions, and taking into account the important aspects of situations. Among her detailed recommendations, Dr. Lacher recommended that Anthony receive "individualized attention and a relatively small class," concluding that "[s]ince his current class size appears too large, consider dropping [him] down to a class of 12, with an aide to assist." Dr. Lacher also noted that Anthony's social skills would be most effectively addressed in a group setting, that his teacher should "[k]eep directions brief and simple," that he would "do best in 'old fashioned' home and school settings that stress values around control and provide routine, structure, discipline, and consistency as well as warmth." She also recommended, inter alia, that Anthony receive occupational therapy, social skills training in a group setting, and continued counseling.

On August 8, 2001, the CSE reviewed Anthony's performance from the previous year and developed an independent education plan ("IEP") for the 2001-02 school year. The CSE recommended placement in a regular education class of 26 to 30 students at the Ralph R. Smith Elementary School ("Smith School"), a public school within the School District, as well as direct consultant teacher services for math and organizational skills, a full-time individual aide, and related services of counseling, group occupational therapy, a behavior modification program, and testing modifications. The CSE also observed that Anthony was dually enrolled at Bishop Dunn for the 2001-2002 school year.

On August 10, 2001, Diane G. wrote to the School District and requested an impartial hearing to reconsider the CSE's recommendation that Anthony receive special education services at the Smith School and asked that the CSE instead provide these services at Bishop Dunn. She emphasized that the Smith School's class size of 25 students or more would not be appropriate for Anthony, a position consistent with recommendations provided by Anthony's

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teachers and therapists. This letter had the effect of initiating a hearing before an Impartial Hearing Office ("IHO"), which took place over the course of four days between November 1 and December 13, 2001. In the meantime, Anthony's parents enrolled him at the Upton Lake Christian School ("Upton Lake"), a parochial school in Clinton Corners, New York, instead of Bishop Dunn. At Upton Lake, Anthony repeated fourth grade in a regular education class of 14 students.

The School District's initial position before the IHO was that Anthony's placement at the Smith School was appropriate and that the unilateral placement at Upton Lake was not appropriate. After one of its own witnesses testified that the class size and program it offered to Anthony was not appropriate, the School District conceded that the placement offered to Anthony at the Smith School was not appropriate. This left the School District with the defense that the Upton Lake placement was equally inappropriate and that it was not required to bear the expense of educating him there.

On February 22, 2002, the IHO accepted the concession of the School District that it "has failed to offer A[nthony] a free and appropriate public education." The IHO also agreed with Anthony's parents that he "needs a small structured classroom setting with an aid to assist him." Nevertheless, the IHO agreed with the School District that Upton Lake was not an appropriate placement for Anthony and concluded that the School District was not required to reimburse plaintiffs for his tuition. Specifically, the IHO found that the placement of Anthony at Upton Lake was inappropriate because he was not making academic or social progress there. This conclusion was based on the fact that Anthony was inattentive in class, he received "needs improvement" in English, bible, history, and science; "needs improvement" in behavior; and unsatisfactory grades in reading and math on his Five Week Progress Report. In addition, Anthony's first grading period report card demonstrated that Anthony needed improvement in math, language arts, penmanship, spiritual growth, social growth, and independent work, and that he received unsatisfactory grades in reading worksheet activities, applying spelling skills to writing, and work and study habits. Nevertheless, the IHO ordered the School District to provide consultant teacher services, counseling, occupational therapy, and a one-to-one aide to Anthony at Upton Lake. The IHO's decision was based on evidence received through December 13, 2001.

Both parties filed an administrative appeal of the IHO's ruling to the State Review Officer ("SRO"). On the appeal, the School District "conceded that the regular education class placement recommended by its CSE did not appropriately address the student's needs" and it did "not challenge ... the hearing officer's finding that it failed to offer" Anthony a free appropriate public education. On March 20, 2003, the SRO affirmed both the IHO's order denying tuition reimbursement and the order requiring the School District to provide Anthony a direct consultant teacher and a one-to-one aide at Upton Lake. In concluding that Upton Lake was inappropriate, the SRO emphasized that Anthony's academic performance during the first and second quarters of 2001-2002 continued to be poor and that, while Upton Lake "appeared to address some of [Anthony's] organizational and social needs, it did not adequately address his deficits in math, written expression, and handwriting." Moreover, he also observed that Upton Lake provided Anthony "with accommodations, not specialized instruction in his main areas of need." The SRO did not

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consider evidence of Anthony's performance at Upton Lake during the third and fourth quarters of the 2001-02 academic year.

On July 18, 2003, plaintiffs filed a complaint in the Southern...

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