Navarro Carrilo v. N.Y.C. Dep't of Educ.

• Decision Date: 13 June 2019
• Docket Number: No. 19 Civ. 2944 (CM),19 Civ. 2944 (CM)
• Citation: 384 F.Supp.3d 441
• Parties: Maria NAVARRO CARRILO, and Jose Garzon, as Parents and Natural Guardians of M.G., and Maria Navarro Carrilo, and Jose Garzon, Individually, Plaintiffs, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant.
• Court: U.S. District Court — Southern District of New York

384 F.Supp.3d 441

Maria NAVARRO CARRILO, and Jose Garzon, as Parents and Natural Guardians of M.G., and Maria Navarro Carrilo, and Jose Garzon, Individually, Plaintiffs,

v.NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant.

No. 19 Civ. 2944 (CM)

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

Signed June 13, 2019

Peter Glenn Albert, Karl Joseph Ashanti, Brain Injury Rights Group, New York, NY, for Plaintiffs.

Thais R. Ridgeway, New York City Law Department, New York, NY, for Defendant.

MEMORANDUM DECISION AND ORDER GRANTING PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION

Colleen McMahon, Chief Judge

Plaintiffs Maria Navarro Carrilo and Jose Garzon, the parents of M.G., an eleven-year-old girl with a serious brain injury

, seek injunctive relief pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq, against Defendant New York City Department of Education (the "DOE"). Plaintiffs seek an injunction vacating a March 5, 2019 pendency order, and ordering that the DOE fund M.G.'s pendency placement at iBrain for the remainder of the 2018–19 school year, until a final adjudication on Plaintiffs' due process complaint against the DOE claiming that iBrain is M.G.'s "appropriate placement" has been resolved.

For the reasons discussed below, the Court grants Plaintiffs' request for a preliminary injunction.

I. Overview of Relevant Principals of IDEA Jurisprudence

The IDEA assures that children with disabilities have available "a free appropriate public education which emphasizes special education and related services designed to meet their unique needs."

Bd. of Educ. of Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d 476, 481 (2d Cir. 2002) (quoting Cedar Rapids Cmty. Sch. Dist. v. Garret F. , 526 U.S. 66, 68, 119 S.Ct. 992, 143 L.Ed.2d 154 (1999) ). The statute mandates that the school district of residence of a child with a disability offer that student a "free appropriate public education" ("FAPE"). See 20 U.S.C. § 1400(d)(1)(A). A FAPE is defined as special education and related services that are provided under public expense; meet the standards of the state educational agency; include an appropriate school education in the state involved; and are in conformity with the student's "individualized education program" ("IEP"). See id. § 1401(9).

A student's IEP is developed collaboratively among parents, educators, a representative of the local education agency, and other specialists, as required; this group is the "IEP team." Id. § 1414(d)(1)(B); Schutz, 290 F.3d 476 at 481. The IEP includes a statement of the student's present levels of achievement, measurable annual goals, a method for measuring the student's progress, and a statement of the student's required special education and related services, including supplementary aids and services, among other things. See 20 U.S.C. § 1414(d)(1)(A).

A. Due Process Requirements

The IDEA recognizes that all parties may not always agree with the IEP generated by the IEP team, so "states are required to develop procedural safeguards to ‘guarantee parents both an opportunity for meaningful input into all decisions affecting their child's education and the right to seek review of any decisions they think inappropriate.’ " Schutz, 290 F.3d at 481 (quoting Honig v. Doe, 484 U.S. 305, 311–12, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988) ). A parent or agency may file a due process complaint "with respect to any matter relating to identification, evaluation or educational placement of the child, or the provision of a [FAPE]." 20 U.S.C. § 1415(b)(6)(A) ; see also 34 C.F.R. 300.507(a)(1) (2007) ("A parent or a public agency may file a due process complaint on any of the matters described in § 300.503(a)(1) and (2) (relating to the identification, evaluation or educational placement of a child with a disability, or the provision of FAPE to the child.).").

Each state has in place its own procedures to implement the review process. In New York, there are two levels of administrative tribunals. First, an Independent Hearing Officer ("IHO") hears the due process complaint and issues a finding of fact and decision. That finding and decision may then be appealed to a State Review Officer ("SRO") of the state department of education. See N.Y. Comp. Codes R. & Regs. Tit. 8, § 200.5(j)-(k) ; see also Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ. , 297 F.3d 195, 197 (2d Cir. 2002). The SRO's decision is "final and concludes the state administrative review." Schutz, 290 F.3d at 481. The parent or DOE may then seek judicial review by a state or federal court once they have exhausted these administrative remedies. See 20 U.S.C. § 1415(i) ; 34 C.F.R. § 300.516 ; N.Y. Educ. L. § 4404(3).

B. The Pendency Provision

During the pendency of due process review hearings, parents have the right to have the child "stay put" in his or her current educational placement. Section 1415(j) of the IDEA (the pendency or "stay put" provision) is as follows:

[D]uring the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of the child, or, if applying for initial admission to a public school, shall, with the consent of the parents, be placed in the public school program until all such proceedings have been completed.

29 U.S.C. § 1415(j). This right applies "regardless of whether [the] case is meritorious or not. " Mackey ex rel. Thomas M. v. Bd. of Educ. For Arlington Cent. Sch. Dist. , 386 F.3d 158, 161 (2d Cir.) (emphasis in original).

"The purpose of the pendency provision is to provide stability and consistency in the education of a student with a disability," Arlington Cent. Sch. Dist, 421 F. Supp. 2d at 696, and to "maintain the educational status quo while the parties' dispute is being resolved," Doe v. E. Lyme Bd. of Educ. , 790 F.3d 440, 452 (2d Cir. 2015) (quoting T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist. , 752 F.3d 145, 152 (2d Cir. 2014) ). Parents can secure funding for a "stay put" placement in a private facility if they have already received an administrative or judicial decision confirming that the private school was an appropriate placement for a prior school year; this is true even if a school district is arguing that a public school is indeed the appropriate placement. See Schutz, 290 F.3d at 484–85 ; New York City Dep't of Educ. v. S.S. , No. 09 CIV. 810(CM), 2010 WL 983719, at *1, *6 (S.D.N.Y. Mar. 17, 2010) ("Part of the ‘stay put’ scheme is that responsibility for private school tuition ‘stays put’ as well.").

a) "Then-Current Educational Placement"

The pendency inquiry requires identification of the student's then current educational placement. See Zvi D. by Shirley D. v. Ambach, 694 F.2d 904, 906 (2d Cir. 1982) ; "Then-current educational placement" is not defined by statute and originally, it was construed as the last agreed-upon IEP or placement. See, e.g., Arlington Cent. Sch. Dist, 421 F. Supp. 2d at 697. More recently, the Second Circuit has broadened the term to mean either: "(1) typically the placement described in the child's most recently implemented IEP; (2) the operative placement actually functioning at the time ... when the stay put provision of the IDEA was invoked; [or] (3) [the placement at the time of] the previously implemented IEP." Mackey, 386 F.3d at 163 ; see also Dervishi v. Stamford Bd. of Educ. , 653 F. App'x 55, 57 (2d Cir. 2016) (summary order) (citing Mackey 's definition of "then-current educational placement"); Doe, 790 F.3d at 452 (same).

Each of these definitions depends on the construction of the term "educational placement," which has a history of broad construction.

The seminal case is Concerned Parents & Citizens for the Continuing Ed. at Malcolm X (PS 79), et al. v. New York City Bd. of Ed. , 629 F.2d 751 (2d Cir. 1980). In Concerned Parents , the Second Circuit addressed the meaning of a change in "educational placement" when examining "whether the transfer of handicapped children in special classes at one school to substantially similar classes at other schools within the same school district constitute[d] a change in ‘[educational] placement’ sufficient to trigger [IDEA's] prior notice and hearing requirements." Id. at 753 (emphasis added). The court found that the term " ‘educational placement’ refers only to the general type of educational programming in which the child is placed," rather than to any particular location. Id. ; see also AW ex rel. Wilson v. Fairfax Cty. Sch. Bd. , 372 F.3d 674, 682 (4th Cir. 2004) ("Consideration of the structure and the goals of the IDEA as a whole, in addition to its implementing regulations, reinforces our conclusion that the touchstone of the term ‘educational placement’ is not the location to which the student is assigned but rather the environment in which educational services are provided."); Bd. of Educ. of Cmty. High Sch. Dist. No. 218, Cook Cty., Ill. v. Illinois State Bd. of Educ. , 103 F.3d 545, 549 (7th Cir. 1996) ("We accept as the outer parameters of ‘educational placement’ that it means something more than the actual school attended by the child and something less than the child's ultimate educational goals."). Ultimately, the Concerned Parents court found that the transfer of children from one school to another was not a change in the educational placement because the students remained in the "same classification, the same school district, and the same type of educational program special classes." Concerned Parents, 629 F.2d at 756.

Nearly twenty-five years later, the Second Circuit interpreted the Concerned Parents definition of "educational placement" to also apply in the context of the "stay put" provision. See T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist. , 752 F.3d 145, 171 (2d Cir. 2014) (citing Concerned Parents ). The pendency provision "does not require that a student remain in a particular site or location." G.R. ex rel....