D.D. ex rel. V.D. v. N.Y. City Bd. of Educ.
| Decision Date | 12 October 2006 |
| Docket Number | Docket No. 04-2542-CV. |
| Citation | 465 F.3d 503 |
| Parties | D.D., a minor, by and through his Parent and Next Friend, V.D.; A.C., a minor, by and through his Parent and Next Friend, V.S.; B.T., a minor, by and through his Parent and Next Friend, D.N., individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. NEW YORK CITY BOARD OF EDUCATION; New York City Department of Education; Joel Klein; Angelo Gimondo, Dr., Superintendent, Community School District 30; Nelly Real-Korb, Chairperson, Committee on Preschool Special Education District 30; Richard P. Mills, Commissioner of the New York State Education Department; City of New York; Joe Blaize, Chairperson, CPSE District 29; Michael A. Johnson, Superintendent, Community School District 29; Beth Marino, Chairperson, CPSE District 25 and Michelle Fratti, Superintendent, Community School District 25, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
Ilann M. Maazel (Matthew D. Brinckerhoff and Eric Hecker, on the brief) Emery Celli Brinckerhoff & Abady LLP, New York, NY, appearing for Plaintiffs-Appellants.
Grace Goodman (Michael A. Cardozo and Larry A. Sonnenshein, on the brief) Corporation Counsel of the City of New York, New York, NY, appearing for the City Defendants-Appellees.
Melanie L. Oxhorn, Assistant Solicitor General (Michael S. Belohlavek, Deputy Solicitor General, on the brief) for Eliot Spitzer, Attorney General of the State of New York, New York, NY, appearing for the State Defendant-Appellee.
Before NEWMAN, CALABRESI and HALL, Circuit Judges.
Three New York City preschool children with disabilities ("named plaintiffs" and together with plaintiff class, "Plaintiffs") filed a class action alleging, inter alia, that the New York City Department of Education ("DOE")1 and the New York State Education Department ("SED" and together with DOE, "Defendants") violated their rights under the Individuals with Disabilities Education Act ("IDEA" or "the Act"), 20 U.S.C.A. §§ 1400-1482 (West 2000 & Supp.2005). In particular, Plaintiffs alleged that Defendants failed to provide them immediately with the educational services mandated by their Individualized Education Programs ("IEPs") under the IDEA. Plaintiffs moved for a preliminary injunction ordering Defendants to implement all services required by the IEPs immediately. The United States District Court for the Eastern District of New York (Trager, J.) denied the motion. The District Court based its denial of the preliminary injunction in principal part on its determination that former § 1416(a), which required participating states to "comply substantially" with the provisions of the IDEA, 20 U.S.C.A. § 1416(a) (West 2000), amended by 20 U.S.C.A. § 1416 (West Supp.2005),2 "raise[d] some question as to whether defendants can be held to an absolute standard of timely providing services to 100% of preschool children with IEPs."
On appeal, Plaintiffs argue that in evaluating whether they were entitled to a preliminary injunction, the District Court incorrectly used a "substantial compliance" standard to assess the Defendants' obligation to meet Plaintiffs' rights. They contend the IDEA confers upon them and all disabled children the right to a "free appropriate public education," and the Act's requirement to "comply substantially" with its provisions applies only to the States' entitlement to continue receiving federal funds.
We agree that the IDEA provides Plaintiffs the right to a free appropriate public education. We also agree that the District Court erred in using the "substantial compliance" standard to determine whether Plaintiffs could prove that right was being denied. We disagree, however, with Plaintiffs' assertion that their right to a free appropriate public education entitles them to receive the required educational services immediately upon development of their IEPs or within a specific time thereafter. Instead, we hold that the right to a free appropriate public education entitles Plaintiffs to their IEP-mandated services "as soon as possible" after the IEPs have been developed. Because the District Court applied the wrong legal standard, we vacate that portion of the District Court's order denying Plaintiffs' motion for a preliminary injunction and remand it for reconsideration under the proper legal standard.
The named plaintiffs are three disabled New York City preschool students whose IEPs have been determined. After named plaintiffs received their IEPs, the DOE placed them on a list referred to as the "PN" list.3 The PN list is a waiting list for students who have received IEPs, but for whom educational services cannot be found immediately. A brief description of named plaintiffs' circumstances is warranted.
D.D. was born on July 27, 1998, and was a New York City resident until July of 2003. D.D. received an IEP in November of 2002 and an amended IEP on March 31, 2003, but he received none of the services required by either IEP through May of 2003.4 A.C. is a New York City resident born on December 21, 1999. He received an IEP on February 26, 2003, with a projected start date of March 10, 2003. Although A.C. eventually received speech therapy on an interim basis, he did not receive the occupational therapy, counseling, or school placements required by his IEP for at least three months.5 B.T. was born on October 7, 1999, and is also a New York City resident. He received his IEP on January 3, 2003. Although the projected start date for B.T.'s IEP was "ASAP" meaning "as soon as possible," he received none of his required services through March of 2003 and only partial services through June of 2003. B.T. was not offered a placement at a school until June 25, 2003.
The IDEA offers federal funds to states that demonstrate they have "in effect policies and procedures to ensure that . . . [a] free appropriate public education is available to all children with disabilities." 20 U.S.C. § 1412(a)(1)(A). To meet the IDEA's requirements, states "must provide each student with a disability `special education and related services' designed to serve the student's needs." Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir.2003) (). "The centerpiece of the IDEA's educational delivery system is the . . . IEP," Murphy v. Arlington Cent. Sch. Dist. Bd. of Ed., 297 F.3d 195, 197 (2d Cir.2002) (internal quotation marks omitted), a written statement that "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." Honig v. Doe, 484 U.S. 305, 311, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988); see also 20 U.S.C. § 1414(d)(1)(A) (defining "IEP").
The IDEA does not specify a time frame for implementing an IEP after it has been developed. Federal regulations require that once an IEP is adopted for a disabled child, "[e]ach public agency shall ensure that (1)[a]n IEP . . . [i]s implemented as soon as possible following the [IEP] meeting[]." 34 C.F.R. § 300.342(b)(1)(ii) (2005).6 According to New York's implementing regulations, "[t]here may be no delay in implementing a student's IEP." 8 N.Y.C.R.R. § 200.4(e)(1)(i). The board of education must:
arrange for the preschool student with a disability to receive such programs and services commencing with the July, September or January starting date for the approved program, unless such services are recommended by the committee less than 30 school days prior to, or after, such appropriate starting date selected for such preschool student, in which case, such services shall be provided no later than 30 school days from the recommendation of the committee [on preschool special education].
New York uses a private provider system to provide disabled preschool children with the programs and services required by their IEPs. As of the fall of 2003, 96 providers approved by the SED operated 420 private preschool special education programs in New York City. For services, the DOE maintains a list of more than 900 independent related service providers with whom it contracts to provide related services to disabled preschool students.
In New York City, there are students for whom services cannot be found immediately. These students are placed on the PN list. In order to supply the educational services needed by students on the PN list, the DOE disseminates a monthly report to all approved preschool providers asking whether they can provide the identified services to the children on the PN list, provide partial services, or request a child-specific allowance to exceed temporarily an approved class size in order to provide the needed services.
The Secretary of Education "is primarily responsible for the interpretation and implementation of the IDEA and has been granted regulatory and enforcement powers." See County of Westchester v. New York, 286 F.3d 150, 153 (2d Cir.2002). To that end, the IDEA includes a substantial compliance provision, authorizing the Secretary to, inter alia, withhold further payments to a state under the Act, if she determines there was a "substantial failure to comply" with the Act. 20 U.S.C.A. § 1416(e)(3) (West Supp.2005).7
On June 16, 2003, the named plaintiffs filed an Amended Class Action Complaint on behalf of "all present and future New York City preschool children with IEPs who have not or will not receive all of the services recommended in their IEPs." Amend. Compl. ¶ 23. The named plaintiffs alleged that by failing to provide immediately all services recommended in the IEPs, the Defendants "have deprived and will...
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