Mr. v. N.Y. City Dep't of Educ.

• Decision Date: 01 February 2011
• Docket Number: No. 09 Civ. 5097 (PGG).,09 Civ. 5097 (PGG).
• Citation: 769 F.Supp.2d 403,268 Ed. Law Rep. 153
• Parties: MR. AND MRS. A. o/b/o D.A., Plaintiffs,v.NEW YORK CITY DEPARTMENT OF EDUCATION, and Joel Klein, in his official capacity as Chancellor of the New York City School District, Defendants.
• Court: U.S. District Court — Southern District of New York

769 F.Supp.2d 403

268 Ed. Law Rep. 153

MR. AND MRS. A. o/b/o D.A., Plaintiffs,

v.NEW YORK CITY DEPARTMENT OF EDUCATION, and Joel Klein, in his official capacity as Chancellor of the New York City School District, Defendants.

No. 09 Civ. 5097 (PGG).

United States District Court, S.D. New York.

Feb. 1, 2011.

Caroline Jean Heller, Greenberg Traurig, LLP, New York, NY, Michele Kule–Korgood, Law Offices of Michele Kule–Korgood, Forest Hills, NY, for Plaintiffs.

David Alan Rosinus, Jr., New York City Law Department, New York, NY, for Defendants.

MEMORANDUM OPINION & ORDER

PAUL G. GARDEPHE, District Judge.

This case presents the following question of first impression:

1. When a child with disabilities has been denied a free and appropriate public education; and

2. the child's parents have enrolled the child in an appropriate private school; and

3. the equities favor an award of the costs of private school tuition; but

4. the parents, due to a lack of financial resources, have not made tuition payments but are legally obligated to do so;

does this Court's authority under Section 1415(i)(2)(C)(iii) of the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1415(i)(2)(C)(iii), “to grant such relief as the court determines is appropriate,” include the power to order a school district to make a retroactive tuition payment directly to the private school? The New York City Department of Education and its Chancellor, defendants herein, contend that IDEA grants courts no such authority, arguing that the private school tuition remedy is available only to parents with the financial means to pay—in the first instance—private school tuition out-of-pocket. This Court concludes that imposing such a limitation on this remedy is inconsistent with the statutory language and with Supreme Court jurisprudence interpreting IDEA, and would be entirely antithetical to Congress's clearly expressed legislative intent and purpose in enacting IDEA.

In this action, Plaintiffs seek funding under IDEA for their son D.A.'s tuition at the Rebecca School for the 2007–08 school year. In state administrative proceedings, an impartial hearing officer (“IHO”) found that (1) Defendants had failed to provide D.A., who has autism, with a free appropriate public education (“FAPE”) for the 2007–08 school year; (2) the Rebecca School—where his parents unilaterally enrolled him—was an appropriate placement for D.A.; and (3) equitable considerations favor an award of tuition funding. (IHO Dec. 23–27) Consistent with the principles articulated by the Supreme Court in Sch. Comm. of the Town of Burlington v. Dep't of Educ., 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985) and its progeny, the IHO directed the New York City Department of Education (“DOE”) to pay D.A.'s tuition balance for the 2007–08 school year, upon submission of appropriate documentation. (IHO Dec. 27)

On DOE's appeal, a state review officer (“SRO”) affirmed the IHO's determinations as to all three prongs of the Burlington test, but “annulled” the IHO's determination as to the tuition remedy, concluding that because the parents had not been able to pay D.A.'s tuition at the Rebecca School out-of-pocket, they “are not entitled to funding of the student's tuition.” (SRO Dec. 8) Plaintiffs then filed this action seeking to overturn the SRO's determination.

The parties have cross-moved for summary judgment.¹ Plaintiffs argue that this Court should overturn the SRO's determination that the private school tuition remedy is unavailable where parents have not paid the tuition out-of-pocket. Defendants contend that the IHO and SRO erred in determining that Plaintiffs had satisfied all three elements of the Burlington test, but that the SRO's determination as to the unavailability of the private school tuition remedy should be upheld. For the reasons stated below, Plaintiffs' motion for summary judgment (Docket No. 31) will be GRANTED and Defendants' motion for summary judgment (Docket No. 27) will be DENIED.

I. STATUTORY BACKGROUND

“Congress enacted the IDEA to promote the education of children with disabilities, ‘to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs [and prepare them for further education, employment, and independent living, and] ... to ensure that the rights of children with disabilities and parents of such children are protected.’ ” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 363 (2d Cir.2006) (quoting 20 U.S.C. § 1400(d)(1)(A), (B) and citing Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 367, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985)). “Under the IDEA, ‘states receiving federal funds are required to provide “all children with disabilities” a “free appropriate public education.” ’ ” R.R. ex rel. M.R. v. Scarsdale Union Free Sch. Dist., 615 F.Supp.2d 283, 287 (S.D.N.Y.2009) (quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir.2007) (quoting IDEA, 20 U.S.C. § 1400(d)(1)(A))).

A school district administers special education services through the development of an “individualized education program” (“IEP”) for each child with disabilities. 20 U.S.C. § 1414(d). In New York, local committees on special education (“CSE”) are responsible for determining whether a child should be classified as eligible for educational services under IDEA and, if so, for developing an appropriate IEP for that child. Walczak v. Florida Union Free School Dist., 142 F.3d 119, 123 (2d Cir.1998) (citing Heldman v. Sobol, 962 F.2d 148, 152 (2d Cir.1992)). “An IEP must state”

(1) the child's present level of educational performance; (2) the annual goals for the child, including short-term instructional objectives; (3) the specific educational services to be provided to the child, and the extent to which the child will be able to participate in regular educational programs; (4) the transition services needed for a child as he or she begins to leave a school setting; (5) the projected initiation date and duration for proposed services; and (6) objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved.

Id. at 122.

Parents who believe that their school district has failed to provide their child with a FAPE—due to an inadequate IEP or otherwise—may file a complaint with the state educational agency and request an impartial due process hearing before a hearing officer. Id. (citing 20 U.S.C. § 1415(b)(1)(E)); see also N.C. ex rel. M.C. v. Bedford Cent. Sch. Dist., 473 F.Supp.2d 532, 535 (S.D.N.Y.2007), aff'd, 300 Fed.Appx. 11 (2d Cir.2008). An IHO's decision may be appealed to an SRO, “after which any party still aggrieved may sue in either state or federal court.” Id. (citing 20 U.S.C. § 1415(e)(2)).

It is well settled that parents pursuing an administrative challenge “may, at their own financial risk, enroll the child in a private school and seek retroactive reimbursement for the cost of the private school from the state.” Gagliardo, 489 F.3d at 111 (citing Burlington, 471 U.S. at 370, 105 S.Ct. 1996). Such reimbursement covers “ ‘expenses that [the school district] should have paid all along.’ ” T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 (2d Cir.2009) ( per curiam ) (quoting Burlington, 471 U.S. at 370–71, 105 S.Ct. 1996). Courts considering a reimbursement request for the cost of private special education services must consider (1) whether “the school district [has] fail[ed] to provide a FAPE”; (2) whether “the private school placement is appropriate”; and (3) whether the “equities” warrant a reimbursement award in full or in part. Forest Grove School Dist. v. T.A., ––– U.S. ––––, 129 S.Ct. 2484, 2496, 174 L.Ed.2d 168 (2009); see also Frank G., 459 F.3d at 363–64. Parents bear the burden of persuasion as to each element of a claim for reimbursement. Schaffer v. Weast, 546 U.S. 49, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005).

Here, however, the parent-plaintiffs were unable to make more than a nominal payment towards the $84,900 annual tuition at the school in which they unilaterally enrolled D.A. Accordingly, Plaintiffs do not seek reimbursement of their out-of-pocket expenses, but rather retroactive direct payment to the Rebecca School for tuition associated with the 2007–08 school year.

II. ADMINISTRATIVE PROCEEDINGS

In a letter to DOE dated May 22, 2008, D.A.'s parents requested an impartial hearing. The parents contended that the CSE had failed to provide D.A. with a FAPE in that it had not issued “an appropriate IEP and a timely placement recommendation for the 2007–08 school year.” (Parents Ex. A) Plaintiffs' counsel stated that the parents sought “[f]unding for unilateral placement at the Rebecca School for the 2007–2008 school year.” ( Id.)

The impartial hearing commenced on September 18, 2008. (Transcript of Proceedings before Impartial Hearing Officer (“Tr.”) at 4) Plaintiffs' counsel began the proceedings by stating that Plaintiffs sought “prospective funding” for D.A.'s placement at the Rebecca School. (Tr. 6) When asked whether Plaintiffs were seeking “any other remedy” in addition to “prospective payment of tuition,” Plaintiffs' counsel said “No.” ² (Tr. 12)

A. The Evidence at the Impartial Hearing

During the 2007–08 school year, D.A. was a 14–year–old New York City resident suffering from, inter alia, autism, Asperger's Syndrome, bipolar disorder, and attention deficit hyperactivity disorder. (Def. R. 56.1 Stmt. ¶¶ 1–2; Pltf. R. 56.1 Counter–Stmt. ¶¶ 1–2; Tr. 97; DOE Ex. 2 at 1) There is no dispute that D.A. is eligible for special education services. (SRO Dec. 1; Def. R. 56.1 Stmt. ¶ 4)

D.A. attended public school from kindergarten through third grade (Def. R. 56.1 Stmt. ¶ 5; Pltf. R. 56.1 Counter–Stmt. ¶ 5), and—pursuant to an IEP developed by a CSE—attended the...