M.W. v. N.Y.C. Dep't of Educ.

• Citation: 725 F.3d 131
• Decision Date: 29 July 2013
• Docket Number: Docket No. 12–2720–cv.
• Parties: M.W., by his Parents, S.W. and E.W., Plaintiffs–Appellants, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

725 F.3d 131

M.W., by his Parents, S.W. and E.W., Plaintiffs–Appellants,

v.NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant–Appellee.

Docket No. 12–2720–cv.

United States Court of Appeals,Second Circuit.

Argued: March 13, 2013.

Decided: July 29, 2013.

Gary S. Mayerson (Tracey Spencer Walsh, Maria C. McGinley, on the brief), Mayerson & Associates, New York, NY, for Plaintiffs–Appellants.

Suzanne K. Colt, (Pamela Seider Dolgow, John Buhta, Gail Eckstein, G. Christopher Harris, on the brief), for Michael A. Cardozo, Corporation Counsel of the City of New York, New York City Law Department, New York, NY, for Defendant–Appellee.

Before: WALKER, WESLEY, DRONEY, Circuit Judges.

WESLEY, Circuit Judge:

S.W. (“Dad”) and E.W. (“Mom”) enrolled M.W., their autistic child, in a private school after concluding that the New York City Department of Education's (“DOE”) individualized education program failed to provide him with a free and appropriate public education as required by the Individuals with Disabilities Education Improvement Act (“IDEA”), 20 U.S.C. §§ 1400 et seq. Subsequently, the Parents filed a due-process complaint against the DOE seeking tuition reimbursement. After twelve hearing days, an impartial hearing officer granted them that relief. The DOE appealed to a state review officer, who reversed that decision. The Parents then filed a civil action in United States District Court for the Eastern District of New York (Weinstein, J.), which affirmed the order denying tuition reimbursement. The Parents appeal principally contending that the individualized education program's integrated co-teaching services violated the IDEA's least restrictive environment mandate by placing their child in a classroom with as many as twelve other students who also had individualized education programs. We AFFIRM.

Background

I. The Legal Framework

The IDEA requires New York state to “provide disabled children with a free and appropriate public education (‘FAPE’).” R.E. v. N.Y. City Dep't of Educ., 694 F.3d 167, 174–75 (2d Cir.2012) (citation omitted). Accordingly, the DOE, through a Committee on Special Education (“CSE”), must produce, in writing, an individualized education program (“IEP”), see20 U.S.C. § 1414(d), that “describes the specially designed instruction and services that will enable the child to meet” stated educational objectives and is reasonably calculated to give educational benefits to the child. R.E., 694 F.3d at 175 (internal quotation marks and citation omitted). Should a parent believe that the school district breached these IDEA duties by failing to provide their disabled child a FAPE, the parent may unilaterally place their child in a private school at their own financial risk and seek tuition reimbursement. See Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 9–10, 16, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993).

To begin the tuition-reimbursement process, a parent must first file a due-process complaint which triggers an administrative-review process that begins with a hearing in front of an impartial hearing officer (“IHO”). See20 U.S.C. § 1415(b)(6), (f); N.Y. Educ. L. § 4404(1). The three-pronged Burlington/Carter test, as construed by New York Education Law § 4404(1)(c), governs that hearing: (1) the DOE must establish that the student's IEP actually provided a FAPE; should the DOE fail to meet that burden, the parents are entitled to reimbursement ¹ if (2) they establish that their unilateral placement was appropriate and (3) the equities favor them. See R.E., 694 F.3d at 184–85 (citing Carter, 510 U.S. at 7, 114 S.Ct. 361;Sch. Comm. of Town of Burlington v. Dep't of Educ., 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985)). A state review officer (“SRO”) evaluates appeals from an IHO's decision, seeN.Y. Educ. Law § 4404(2), and either party may seek review of an SRO decision by bringing a civil action in federal court, see20 U.S.C. § 1415(i)(2)(A).

II. Statement of FactsA. M.W.

M.W. is an autistic boy with Pervasive Developmental Disorder, Attention Deficit Hyperactivity Disorder, certain speech and language disorders, and fine and gross motor deficits. Despite these setbacks, M.W. has an average IQ; he is bright and can learn. His autism and developmental disorders, however, present behavioral and social-emotional problems that have resulted in academic under-performance and have required speech, occupational, and physical therapies. M.W. also requires direct, hands-on supervision during the school day from a paraprofessional, who helps him stay focused when his attention strays and calm in the event of a behavioral crisis.

After the Parents rejected the IEP for the 2009–2010 school year, M.W. attended Luria, a Montessori school, where he had the support of his full-time paraprofessional in a classroom designed for typically developing students. On January 30, 2010, Mom sent an email to Luria indicating a desire to re-enroll M.W. for the 2010–2011 school year before the CSE developed the contested IEP subject to this appeal. Shortly thereafter, Mom submitted an application to Luria which included a tuition contract and down payment to hold M.W.'s spot.

Luria teachers do not use formal assessments to track progress and rely on “a lot [of] note-taking and observation” to track the child's progress. See Tr. 937. Though M.W. progressed socially during the 2009–2010 school year, he continued to have “a lot of behavioral issues that [we]re getting in the way of his progress” through the 2010–2011 school year. Id. at 921. When these behavioral issues disrupted the class, his paraprofessional removed him from the classroom to work with him outside, sometimes on the floor.²Id. at 945–50.

B. M.W.'s Individualized Education Program

On June 10, 2010, the CSE convened to develop M.W.'s 2010–2011 IEP. The following individuals constituted the CSE: (1) Mom; (2) Sara Malasky, M.W.'s general education teacher, who participated via telephone; (3) Chanie Graus, a school psychologist who acted as a school-district representative; (4) a special education teacher; and (5) a parent representative. M.W. was seven years old, and the IEP was for his second-grade year, 2010–2011.

The IEP described M.W. as a seven-year-old autistic child of average intelligence with Pervasive Developmental Disorder. Despite his disorders, the IEP recognized that M.W. had “made progress ... in the area of peer interactions” and, during the previous year at Luria, M.W. had made friends and was “able to participate in a continuous flow of back and forth interactions” with his peers. Sealed App'x 1847. The IEP, however, also noted that M.W. had significant self-regulation difficulties, became frustrated easily, and struggled to calm himself down in the event of a behavioral crisis. Id.

The IEP recommended placement in a general education environment with integrated co-teaching (“ICT”) services with a 12:1 staffing ratio, five days a week, for a ten-month school year.³ The IEP also provided M.W. with a fulltime behavioral management paraprofessional to give him one-on-one help self-regulating in times of behavioral crisis, and these other related services:

Sealed App'x 1860.

Finally, the IEP concluded that M.W.'s “behavior seriously interfere[d] with instruction and require[d] additional adult support.” Id. 1847. Based on those conclusions, the IEP required a behavioral intervention plan (“BIP”), which was incorporated in the IEP. Id. at 1860. The BIP identified “emotional meltdowns,” “poor self-regulation,” and “poor attention” as the behavioral difficulties that impaired M.W.'s academic progress and recommended a reward system, praise and encouragement, and positive modeling as strategies to modify those behaviors. Id. at 1862. The goal was to teach M.W. to become more attentive and focused and to better control himself when frustrated. Id. To implement those strategies, M.W.'s teacher, paraprofessional, and the Parents were to collaborate. The BIP did not quantify data relating to the frequency of M.W.'s “meltdowns” because Luria did not provide a functional behavior assessment (“FBA”), and the DOE did not request or develop one.

On July 1, 2010, the DOE sent a letter to M.W.'s Parents that classified M.W. as an autistic student and recommended an ICT classroom ⁴ at P.S. 197, the Ocean School, with the related services that the IEP recommended. Mom visited the school, decided to keep M.W. at Luria, and immediately began the administrative-reviewprocess seeking reimbursement for the 2010–2011 school year.

C. Administrative Review

On July 8, 2010, the Parents filed their demand for due process and requested a hearing. The Parents subsequently amended their demands on September 29, 2010. On May 2, 2011, the Parents submitted their closing brief after 12 hearing days that took place over the entire school year. In relevant parts, the Parents argued that the IEP would have denied M.W. a FAPE because the IEP Team created a BIP without the benefit of an FBA and the IEP failed to provide parent counseling and training as a related service. The Parents also argued that the P.S. 197 placement was defective because the recommended 10–month program exposed M.W. to regression risks. Finally, the Parents argued that the IEP assigned M.W. to an overly restrictive environment.

The IHO expressly agreed with the Parents regarding the BIP, the omission of parental counseling, and the inadequacy of a 10–month program. Though the IHO mentioned the least restrictive environment requirement in passing, she made no explicit findings as to whether a general education environment with ICT services would be too restrictive.⁵See Sealed App'x 2155. The IHO found Luria to be an appropriate placement and that the equities favored the Parents. Accordingly, the IHO ordered that the Parents be reimbursed, and the DOE sought review by a SRO. The SRO reversed the IHO's determinations and denied tuition reimbursement. Relying heavily on the SRO's analysis, the...