Second Circuit rules that parents were not entitled to private school tuition reimbursement under IDEA based on the parents’ assertion the school district was unlikely to implement the student’s IEP at the school he was assigned to by the school district
M.O. v. New York City Dep’t of Educ., No. 14-1473 (2d Cir. Jul. 15, 2015)
Abstract: A U.S. Court of Appeals for the Second Circuit three-judge panel has ruled that parents of a special education student were not entitled to tuition reimbursement under the Individuals with Disabilities Education Act (IDEA) for unilateral placement of the student in a private school based on the parents’ assertion that the school district was unlikely to implement the student’s individualized educational plan (IEP) at the school he was assigned to by the school district. The panel held that while R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167 (2d Cir. 2012), allows a parent to challenge a school district’s placement based on that schools ability to provide the services mandated in the IEP, a parent cannot succeed by speculating that the school district will not implement the IEP.
Facts/Issues: The parents of a special education student filed a reimbursement action for a unilateral private placement under the IDEA, challenging the adequacy of the public school proposed by the school district for the placement of their child. In September 2011, the parents initiated their reimbursement action for the student’s unilateral placement in the Lowell School by filing a due process complaint and request for a hearing before an independent hearing officer (IHO). The due process complaint alleged that the student’s IEP was substantively inadequate. The due process complaint also challenged the adequacy of the district’s proposed placement schools.
The IHO determined that the student was not denied a FAPE and that the parents were therefore not entitled to a reimbursement for their unilateral placement of the student in the Lowell School for the 2011-2012 school year. The IHO rejected the parents’ challenges to the substantive and procedural adequacy of the IEP and found that the school district had demonstrated the appropriateness of its recommendation that the student repeat the second grade in a 12:1:1 special placement classroom in a community school. The IHO, however, did not separately address the parents’ challenges to the adequacy of the district’s proposed placement schools.
The parents appealed the decision to a State Review Officer ( SRO). The SRO affirmed the IHO’s decision and dismissed the parents’ complaint. The SRO observed that, under the second Circuit’s decision in R.E., the sufficiency of the district’s offered program is to be determined on the basis of the IEP itself and that the parents rejected the IEP and enrolled the student at the Lowell School prior to the time that the school district became obligated to implement the student’s IEP. The SRO, therefore, found that “the district did not have an obligation, under these factual circumstances, to present evidence that it provided special education services in conformity with the student’s IEP.” Even having assumed that the student had attended P.S. 159, the SRO found that there was no evidence in the record to suggest that the district would have deviated from D.O.’s IEP in a material or substantial way.
The parents filed an action challenging the SRO’s decision in federal district court. The district court rejected the parents’ argument that the DOE was required to present evidence to the IHO on P.S. 159’s ability to implement D.O.’s IEP. It reasoned that “[i]t would be inconsistent with R.E. to require the [the school district] to proffer evidence regarding the actual classroom [the student] would have attended, where it had become clear that [the student] would attend private school and not be educated under the IEP.”
Ruling/Rationale: The Second Circuit panel affirmed the lower court. After noting it would give the SRO’s decision due deference, but not “simply rubber stamp” it, the panel addressed the school district’s assertion that “under [the Second Circuit’s] decision in R.E., a child must physically attend a proposed placement school before challenging that school’s ability to implement their IEP.” It acknowledged that a number of district courts within the Second Circuit “… R.E. broadly enough to exclude all prospective challenges to a child’s proposed placement.”
However, the panel said, “Because R.E. does not foreclose all prospective challenges to a child’s proposed placement school, we find it necessary to clarify the proper reach of our holding in R.E.” It agreed with the school district that it would be “speculative to conclude that a school with the capacity to implement a given student’s IEP will simply fail to adhere to that plan’s mandates.” At the same time, the panel pointed out that it would “not be speculative to find that an IEP cannot be implemented at a proposed school that lacks the services required by the IEP.”
Nevertheless, the panel determined that “the due process complaint’s challenges to P.S. 1596 were not of the type permitted by R.E., [i.e.,] prospective challenges to P.S. 159’s capacity to provide the services mandated by the IEP.” Instead, it found the challenges were substantive attacks on the student’s IEP that were couched as challenges to the adequacy of the school the district placed the student at. As a result, the panel concluded the challenges “do not relate to P.S. 159’s capacity to implement the IEP; they relate to the appropriateness of the IEP’s substantive recommendations.”
The panel stated: “Because the substantive adequacy of the IEP must be determined by reference to the written IEP itself, the school district did not have the burden to produce evidence demonstrating P.S. 159’s adequacy in response to these arguments.” It, likewise, found that the parents’ other challenge, based on the mother’s visit to P.S. 159 and testimony that the placement was inappropriate, was related to the substantive adequacy of the student’s IEP, which must be assessed by reference to the written plan itself, and did not trigger a duty on the part of the school district to provide evidence regarding P.S. 159’s adequacy.
The panel stressed that while the “SRO and district court appear to have concluded that the school district was not required to produce evidence on the adequacy of P.S. 159, based on an erroneous determination that R.E. requires a child physically to attend a proposed placement school before challenging that school’s ability to implement the child’s IEP,” it was free to “affirm the judgment on any basis that is supported by the record.” Rejecting the district court’s and SRO’s rationale for holding that the parents were not entitled to tuition reimbursement under IDEA, the panel, instead, based its affirmance of the decision to deny reimbursement on the ground that “the due process complaint’s challenges to P.S. 159 were in fact substantive attacks on D.O.’s IEP rather than prospective challenges to P.S. 159’s capacity to provide the services mandated by D.O.’s IEP.”
M.O. v. New York City Dep’t of Educ., No. 14-1473 (2d Cir. Jul. 15, 2015)
[Editor’s Note: In October 2012, Legal Clips summarized the Second Circuit’s panel decision in R.E. holding that in determining whether an individual education program (IEP) has provided a disabled student with a free appropriate public education (FAPE) as required by the Individuals with Disabilities Education Act (IDEA), the adequacy of an IEP may only be evaluated prospectively as of the time the IEP is drafted, and, thus, “retrospective testimony that the school district would have provided additional services beyond those listed in the IEP may not be considered” in a due process hearing. However, the panel rejected the rigid “four corners” rule that would prevent a court from considering evidence that explains in detail the written terms of the IEP.]