R.E. v. N.Y.C. Dep't of Educ.

• Decision Date: 20 September 2012
• Docket Number: Docket Nos. 11–1266–cv, 11–1474–cv, 11–655–cv.
• Citation: 694 F.3d 167
• Parties: R.E., Individually, on behalf of J.E., M.E., Individually, on behalf of J.E., Plaintiffs–Appellees, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant–Appellant. R.K., by her parents R.K. and S.L., Plaintiff–Appellee, v. New York City Department of Education, Defendant–Appellant. E.Z.-L., by her parents R.L. and A.Z., Plaintiff–Counter–Defendant–Appellant, v. New York City Department of Education, Defendant–Counter–Claimant–Appellee.
• Court: U.S. Court of Appeals — Second Circuit

694 F.3d 167

R.E., Individually, on behalf of J.E., M.E., Individually, on behalf of J.E., Plaintiffs–Appellees,

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

R.K., by her parents R.K. and S.L., Plaintiff–Appellee,

v.New York City Department of Education, Defendant–Appellant.

E.Z.-L., by her parents R.L. and A.Z., Plaintiff–Counter–Defendant–Appellant,

v.New York City Department of Education, Defendant–Counter–Claimant–Appellee.

Docket Nos. 11–1266–cv, 11–1474–cv, 11–655–cv.

United States Court of Appeals,Second Circuit.

Argued: April 24, 2012.

Decided: Sept. 20, 2012.

Tracey Spencer Walsh, (Gary S. Mayerson, Maria C. McGinley, on the brief), Mayerson & Associates, New York, New York, for Plaintiffs–Appellees R.E., M.E. and R.K.

Alan G. Krams (Kristin M. Helmers, Lesley Berson Mbaye, Stephen J. McGrath, Kimberly Conway, Julie Steiner, on the brief) for Defendants–Appellants Corporation Counsel for the City of New York, NY and New York City Department of Education.

Gary S. Mayerson, (Tracey Spencer Walsh, Brianne N. Dotts, on the brief), Mayerson & Associates, New York, New York, for Plaintiff–Counter–Defendant–Appellant E.Z.-L.

Before: WINTER, JOHN M. WALKER, JR., and CABRANES, Circuit Judges.

JOHN M. WALKER, JR., Circuit Judge:

These cases require us to resolve several legal issues related to the rights of disabled children under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. In these three cases, parents of autistic children (collectively and in their respective pairs, “the parents”) declined school placements offered by the New York City Department of Education (“the Department”) and placed their children in private schools. The parents brought due process claims against the Department for tuition reimbursement on the grounds that the Department's public school placement offers for their children were inadequate. In each case, the parents were initially granted relief following a hearing before an impartial hearing officer (“IHO”), but subsequently were denied relief after the IHO's decision was reversed on appeal by the state review officer (“SRO”). In each case, the SRO relied in part on testimony from Department personnel about the educational program the student would have received if he or she had attended public school. The parents challenge the appropriateness of relying on such testimony, which for ease of reference we refer to in shorthand as “retrospective testimony.”

In each case, the parents sought to have the SRO's determination reversed by the appropriate United States District Court, and in two of the three cases they succeeded. In R.E., no. 11–1266–cv, the District Court for the Southern District of New York (Robert W. Sweet, Judge ) found that the Department failed to provide the student with a free and appropriate public education (“FAPE”) and granted summary judgment for the parents. In R.K., no. 11–1474–cv, the District Court for the Eastern District of New York (Kiyo A. Matsumoto, Judge ) similarly found that the Department failed to provide the student with a FAPE and granted summary judgment for the parents. In E.Z.-L., no. 11–655–cv, however, the District Court for the Southern District of New York (Sidney H. Stein, Judge ) found that the Department had provided the student with a FAPE and granted it summary judgment.

Among the legal conclusions we reach, we conclude that the use of retrospective testimony about what would have happened if a student had accepted the Department's proposed placement must be limited to testimony regarding the services described in the student's individualized educational program (“IEP”). Such testimony may not be used to materially alter a deficient written IEP by establishing that the student would have received services beyond those listed in the IEP. In light of this and other legal conclusions, we reverse the decision of the district court in R.E., and we affirm the decisions of the district courts in R.K. and E.Z.-L.

BACKGROUND

I. The Legal Framework

Before delving into the facts of these cases, it is useful to understand the legal framework of the IDEA. A state receiving federal funds under the IDEA must provide disabled children with a free and appropriate public education (“FAPE”). Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir.2005). To ensure that qualifying children receive a FAPE, a school district must create an individualized education program (“IEP”) for each such child. See20 U.S.C. § 1414(d); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195, 197 (2d Cir.2002) (describing the IEP as the “centerpiece” of the IDEA system). The IEP is “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.” D.D. ex rel. V.D. v. N.Y.C. Bd. of Educ., 465 F.3d 503, 507–08 (2d Cir.2006) (internal quotation marks omitted). The IDEA requires that an IEP be “reasonably calculated to enable the child to receive educational benefits.” Bd. of Educ. v. Rowley, 458 U.S. 176, 207, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982).

In New York, the state has assigned responsibility for developing IEPs to local Committees on Special Education (“CSEs”). N.Y. Educ. Law § 4402(1)(b)(1); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 123 (2d Cir.1998). CSEs are comprised of members appointed by the local school district's board of education, and must include the student's parent(s), a regular or special education teacher, a school board representative, a parent representative, and others. N.Y. Educ. Law § 4402(1)(b)(1)(a). The CSE must examine the student's level of achievement and specific needs and determine an appropriate educational program. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107–08 (2d Cir.2007).

If a parent believes that his child's IEP does not comply with the IDEA, the parent may file a “due process complaint” (a type of administrative challenge unrelated to the concept of constitutional due process) with the appropriate state agency. 20 U.S.C. § 1415(b)(6). In such cases, the IDEA mandates that states provide “impartial due process hearings” before impartial hearing officers (“IHOs”). Id. § 1415(f). Under New York's administrative system, the parties first pursue their claim in a hearing before an IHO. N.Y. Educ. Law § 4404(1). Either party may then appeal the case to the state review officer (“SRO”), who may affirm or modify the IHO's order. Id. § 4404(2). Either party may then bring a civil action in state or federal court to review the SRO's decision. 20 U.S.C. § 1415(i)(2)(A).

II. Facts

Like most IDEA cases, the consolidated appeals before us are fact-intensive. We therefore find it necessary to set forth in some detail the facts of the three cases.

A. R.E., No. 11–1266–cv1. Background

J.E., the son of R.E. and M.E., is an autistic child born in 1999. Since September 2002, J.E. has attended the private McCarton School (“McCarton”) located in Manhattan. May 2007, R.E. and M.E. rejected the Department's offer of a 6:1:1 (six students, one teacher, one paraprofessional aide) classroom setting in a special public school for the 2007–08 school year. After the Department conceded that the 2007–08 placement had failed to provide a FAPE, the IHO found that the parents were entitled to reimbursement, which conclusion is not challenged in this appeal. J.E. continued at McCarton during the 2007–08 school year.

At McCarton, J.E. was in a classroom with five other children and a 1:1 student-to-teacher ratio ( i.e., each student had his or her own teacher). Each week he received approximately 30 hours of applied behavioral analysis (“ABA”) therapy, which is an intensive one-on-one therapy that “involves breaking down activities into discrete tasks and rewarding a child's accomplishments.” Cnty. Sch. Bd. v. Z.P. ex rel. R.P., 399 F.3d 298, 301 (4th Cir.2005) (internal quotation marks omitted). He also received 1:1 speech and language therapy five times a week in 60–minute sessions, and 1:1 occupational therapy five times a week in 45–minute sessions.

2. The IEP

On May 21, 2008, the Department convened a CSE to develop an IEP for the 2008–09 school year. Present at this meeting were R.E., J.E.'s father; Xin Xin Guan, the Department's representative; Jane O'Connor, a special education teacher; Jeanette Betty, a parent representative; Tara Swietek, J.E.'s head teacher at McCarton; Kelly Lynn Landris, a McCarton speech and language pathologist; Nipa Bhandari, a McCarton occupational therapist; and Ivy Feldman, McCarton's director.

Because J.E. had never attended public school, the CSE relied primarily on information it received from McCarton. This information consisted of an educational progress report, which explained J.E.'s aptitude with communication, cognition, social skills, and adaptive behaviors, and recommended continuation of his current course of 1:1 therapy; a speech and language progress report, which evaluated J.E.'s language abilities and recommended a continued course of five 60–minute sessions per week; and an occupational therapy progress report, which outlined J.E.'s progress and goals and recommended that he continue with his current course of five 45–minute sessions per week and continue to participate in yoga sessions. Additionally, Carol Schaechter, a Department employee, observed J.E. for one day at McCarton. Her report related J.E.'s activities and noted some behavioral problems. It made no recommendations.

The resulting IEP offered J.E. a 12–month placement in a special class in a public school with a staffing ratio of 6:1:1. It also provided J.E. with a dedicated full-time paraprofessional aide. The IEP included speech therapy, occupational therapy, and counseling as related services. The CSE also produced a Functional Behavioral...