12-1610-cv
C.L. v. Scarsdale Union Free Sch. Dist.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2012
(Argued: June 19, 2013 Decided: March 11, 2014)
Docket No. 12-1610-cv
C.L., Individually, G.W., Individually,
and on behalf of C.L., a child with a disability,
Plaintiffs-Appellants,
v.
SCARSDALE UNION FREE SCHOOL DISTRICT,
Defendant-Appellee.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
Before:
STRAUB, HALL, and CHIN, Circuit Judges.
Appeal from a judgment of the United States District Court for the
Southern District of New York (Seibel, J.) granting summary judgment to school
district and dismissing claims brought by parents of a disabled child under the
Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq., and Section
504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794.
REVERSED IN PART AND AFFIRMED IN PART.
JESSE COLE CUTLER, Skyer and Associates, LLP, New
York, New York, for Plaintiffs-Appellants.
STEPHANIE MARIE ROEBUCK, Keane & Beane, P.C., White
Plains, New York, for Defendant-Appellee.
Jay Worona and Pilar Sokol, Latham, New York, for
Amicus Curiae New York State School Boards
Association, Inc.
Francisco Maria Negrón, Jr. and Naomi E. Gittins,
Alexandria, Virginia, for Amicus Curiae National
School Boards Association.
Thomas E. Perez, Assistant Attorney General for the
Civil Rights Division, Nathaniel S. Pollock and
Mark L. Gross, Attorneys, United States
Department of Justice, Washington, D.C.; Preet
Bharara, United States Attorney for the Southern
District of New York, Sarah S. Normand and Lara
K. Eshkenazi, Assistant United States Attorneys,
New York, New York; and Phillip H. Rosenfelt,
Deputy General Counsel, Francisco Lopez and
Marcus Hendrick, Attorneys, United States
Department of Education, for Amicus Curiae
United States Department of Education.
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CHIN, Circuit Judge:
In this case, C.L., a child with a disability, was denied a free
appropriate public education (a "FAPE") by the Scarsdale Union Free School
District (the "District"). His parents, plaintiffs-appellants C.L. and G.W., placed
him in a specialized private school designed to educate children with learning
disabilities and sued the District for tuition reimbursement under the Individuals
with Disabilities Education Act (the "IDEA"), 20 U.S.C. § 1400 et seq. An
Impartial Hearing Officer ("IHO") awarded tuition reimbursement to C.L.'s
parents, holding that the District denied C.L. a FAPE and that the parents'
private placement was appropriate. A State Review Officer ("SRO") reversed,
agreeing that C.L. was denied a FAPE but holding that the parents' private
placement was not appropriate, at least in part because the specialized private
school was a more restrictive environment than the public school in which C.L.
had been placed. The district court affirmed.
We reverse. We hold that the SRO's decision was insufficiently
reasoned to merit deference and we instead defer to the IHO's decision, which
was more thorough and carefully considered. The IHO detailed the programs
that the parents' placement provided to C.L. and the progress C.L. made there.
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The IHO also took into account the school's restrictiveness as one factor in his
decision. In contrast, the SRO did not examine the kind of education and
services the parents' placement provided C.L., effectively ruling that the school
was inappropriate only because it was more restrictive than the public school he
previously attended. When a public school district, however, denies a child with
a disability a FAPE, a private placement is not inappropriate merely because the
environment is more restrictive than the public school alternative. When a child
is denied a FAPE, his parents may turn to an appropriate specialized private
school designed to meet special needs, even if the school is more restrictive.
The parents also brought a claim under Section 504 of the
Rehabilitation Act of 1973 (the "Rehabilitation Act"), 29 U.S.C. § 794, alleging that
the District discriminated against C.L. on account of his disability. The district
court granted summary judgment dismissing the claim, concluding that the
parents had not presented sufficient evidence of bad faith or gross misjudgment.
We affirm the dismissal of the Rehabilitation Act claim.
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BACKGROUND
A. Legal Background
The IDEA seeks to provide to all children with disabilities "a free
appropriate public education that emphasizes special education and related
services." 20 U.S.C. § 1400(d)(1)(A); see Bd. of Educ. of Hendrick Hudson Cent. Sch.
Dist., Westchester Cnty. v. Rowley, 458 U.S. 176, 181 (1982) (interpreting
predecessor statute to IDEA, Education of the Handicapped Act). States
receiving federal funding must provide children with disabilities with a FAPE
"tailored to meet the unique needs of a particular child." Walczak v. Fla. Union
Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998) (citation omitted). A FAPE must
also reflect the IDEA's "'strong preference' for educating disabled students
alongside their non-disabled peers; that is, in their least restrictive environment."
M.W. ex rel. S.W. v. N.Y.C. Dep't of Educ., 725 F.3d 131, 143 (2d Cir. 2013) (citing
Walczak, 142 F.3d at 122).
The IDEA requires states to create an individualized education
program ("IEP") for each disabled child. See 20 U.S.C. § 1412(a)(4); see also Honig
v. Doe, 484 U.S. 305, 311 (1988) (describing development of IEP as "centerpiece" of
IDEA); Frank G. v. Bd. of Educ., 459 F.3d 356, 363 (2d Cir. 2006) (describing IEP as
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"[t]he key element of the IDEA"). 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); see also 20 U.S.C. § 1414(d)(1)(A). The
IEP must be reviewed at least annually and revised in accordance with the child's
needs. 20 U.S.C. § 1414(d)(2), (3), (4).
Where the state fails to provide a FAPE to a disabled child, the
parents may enroll the child in a private school and seek reimbursement for the
cost of the private school education from the local education agency. See
20 U.S.C. § 1412(a)(10)(C)(i), (ii); Sch. Comm. of Town of Burlington, Mass. v. Dep't
of Educ., 471 U.S. 359, 370 (1985); Frank G., 459 F.3d at 363. In New York, which is
covered by the IDEA, a parent seeking such reimbursement must first pursue
that claim in a due process hearing before an IHO, N.Y. Educ. Law § 4404(1)
(McKinney 2006), and may appeal an adverse ruling to an SRO, id. § 4404(2).
Either party may then seek review of the SRO's decision in federal court.
20 U.S.C. § 1415(i)(2)(A).
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Parents may also seek relief under Section 504 of the Rehabilitation
Act, 29 U.S.C. § 794(a), where their child has been subjected to discrimination on
account of her disabilities in any program receiving federal financial assistance.
As we have noted, "[t]he purposes of the Rehabilitation Act are similar to that of
the IDEA." Muller ex rel. Muller v. Comm. on Special Educ. of E. Islip Union Free Sch.
Dist., 145 F.3d 95, 99 n.2 (2d Cir. 1998). There are, however, differences in the
two statutes, and an accommodation developed to comply with the
Rehabilitation Act is "not an adequate substitute" for an IEP under the IDEA. Id.
at 105 & n.9; accord R.B. ex rel. F.B. v. Napa Valley Unified Sch. Dist., 496 F.3d 932,
946 (9th Cir. 2007). An individual aggrieved by a violation of the Rehabilitation
Act may seek, inter alia, compensatory damages. 29 U.S.C. § 794a.
B. The Facts
The relevant facts are largely undisputed. C.L. has been diagnosed
with attention deficit hyperactivity disorder ("ADHD"), nonverbal learning
disability, and executive function weakness. He has exhibited problems with
anxiety, stuttering, fine motor development, and visual motor coordination, all of
which inhibit his ability to learn. From the 2004-05 school year to the 2007-08
school year -- kindergarten to third grade -- C.L. attended Greenacres Elementary
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School, a public school in Scarsdale, New York, operated by the District. During
the fourth year, the 2007-08 school year, C.L.'s parents requested that C.L. be
considered for an IEP under the IDEA. After the District determined that he was
not entitled to an IEP, the parents enrolled C.L. at the Eagle Hill School, a
specialized private school in Greenwich, Connecticut, for the 2008-09 school year.
1. The First Three Years at Greenacres
In October 2004, in kindergarten, C.L. began receiving speech-
language therapy sessions once a week to address his "episodic dy[sfl]uency." In
January 2005, he began receiving pre-reading instruction sessions twice a week
in Greenacres's Learning Resources Center ("LRC").1 An occupational therapy
evaluation in March 2005 noted C.L.'s "delays in fine motor development and
visual motor coordination, which [were] impacting [ ] his ability to perform
classroom tasks, such as writing and using scissors."
In March 2005, the District convened a committee pursuant to
Section 504 of the Rehabilitation Act (the "504 Committee") to consider whether
C.L. was disabled within the meaning of the statute and, if so, to recommend a
1
The LRC at Greenacres provides small-group academic support services
to students with significant delays in their academic development.
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course of action. The 504 Committee determined that C.L. was eligible for
services under the Rehabilitation Act and thus prepared a Section 504
Accommodation Plan (the "504 Plan"). The 504 Plan recommended that C.L. be
removed from class for thirty minutes once weekly for occupational therapy
sessions in a 1:1 student-to-teacher ratio setting.
The 504 Committee reconvened in October 2005 and October 2006 to
plan for the 2005-06 and 2006-07 school years, respectively. Noting C.L.'s
difficulties with writing, remembering routines, and sustaining attention, the
2005-06 504 Plan recommended: the continuation of the once weekly
speech-language therapy sessions in a 5:1 setting; an increase of the LRC sessions
to four times a week in a 6:1 setting; and an increase of the occupational therapy
sessions to twice weekly in one 1:1 setting and one 4:1 setting. The 2006-07 504
Plan observed that "[C.L.'s] reading ha[d] improved," but his "level of disfluency
ha[d] increased . . . [to] stuttering" and he had begun to exhibit anxiety in the
classroom. The 2006-07 504 Plan called for C.L. to continue largely the same
services as the previous school year, except that the twice weekly occupational
therapy sessions were now both in 1:1 settings.
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In April 2007, a private occupational therapy evaluation arranged by
C.L.'s parents placed C.L. in the twelfth percentile in visual-motor integration,
second percentile in visual perception, first percentile in motor coordination, and
sixth percentile in total motor composite. In May 2007, C.L.'s parents arranged
for private occupational therapy sessions for him and consequently informed the
District that he would no longer be receiving occupational therapy at Greenacres.
C.L.'s parents also arranged for the Soifer Center to conduct an
independent psychoeducational evaluation of C.L., which took place over the
course of six days in April and May 2007. The Soifer Center's evaluation placed
C.L.'s "intellectual functioning within the upper end of the Low Average range."
The evaluation found, however, that C.L.'s language and executive functioning
abilities were weak, and that his reading and mathematical skills were also
limited. Alarmed by this evaluation, C.L.'s parents requested that the 504
Committee reconvene.
On June 6, 2007, two days after the parents' conference with the
Soifer Center about their child, the 504 Committee amended C.L.'s 504 Plan. The
amended 504 Plan noted that "[a]lthough [C.L.] has made overall progress this
year both in class and in the LRC, his teacher corroborates the findings of the
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[Soifer Center] evaluation." The 504 Plan acknowledged that C.L. fidgeted and
often required refocusing and reteaching of new concepts when he was in a large
classroom setting, but noted that he had less trouble remaining on task in the
smaller learning environment of the LRC. The 504 Plan was amended to add "15
hours of classroom aide time [per week] . . . to assist [C.L.] with his organization
and execution of writing tasks," as well as various program and testing
modifications.
After the end of the 2006-07 school year, C.L.'s parents sought a
"second opinion" on the results of the Soifer Center evaluation and arranged for a
neurodevelopmental evaluation of C.L. by Dr. Marilyn C. Agin. After examining
C.L. in June 2007, Dr. Agin found that he had an early history of dyspraxia,
which caused him to suffer from "weaknesses in attention, organization and
sequencing; handwriting difficulties; and language processing difficulties." She
also expressed concern about C.L.'s emotional well-being and self-esteem.
Although Dr. Agin largely concurred with the recommendations of the 504 Plan
created at Greenacres, she nonetheless "strongly urged that [C.L.'s] parents
investigate a private educational setting with an expertise in teaching children
with attentional and learning issues."
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2. The Fourth Year at Greenacres
In October 2007, at the beginning of C.L.'s fourth year at Greenacres,
the 504 Committee met and made no changes to the amended 504 Plan for
2007-08. In November 2007, a month after the 504 Committee created the 2007-08
504 Plan, C.L.'s parents requested a review by the District's Committee on Special
Education ("CSE") to determine whether C.L. was entitled under the IDEA to
special education services, including the development of an IEP.2 The parents
provided the CSE with the private evaluations of C.L., and the CSE conducted its
own classroom observation, speech-language evaluation, and standardized
testing of C.L., along with a developmental history interview of the parents.
The speech-language evaluation indicated that C.L. was consistently
performing "in the average to significantly above average range." On the
Stanford Diagnostic Reading Test, C.L. scored in the 82nd, 92nd, and 43rd
percentiles in phonetic analysis, vocabulary, and comprehension respectively.
On the first administration of the Stanford Diagnostic Mathematics Test, C.L.
scored in the 9th and 3rd percentiles in concepts and applications and in
2
New York assigns responsibility for fulfilling the state's obligations under
the IDEA to local Committees on Special Education. N.Y. Educ. Law § 4402(1)(b)(1)(a)
(McKinney 1999); see also Walczak, 142 F.3d at 123.
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computations respectively, but the test administrator believed those scores did
not reflect C.L.'s abilities because he was not concentrating. The second
administration a few days later placed C.L. in the 38th and 84th percentiles in
concepts and applications and in computations respectively.
After reviewing the private and District evaluations of C.L., the CSE
concluded on January 8, 2008, that C.L. was not disabled under the IDEA and
that he therefore was not eligible for special education services or an IEP. The
CSE determined, however, that C.L. remained eligible for services and
accommodations under Section 504 of the Rehabilitation Act. The CSE added
that, "[s]ince [C.L.'s] reading skills have improved, committee members would
like to reduce his time in the LRC to two periods per week, to address his writing
skills." In reaching these conclusions, the CSE acknowledged, as the parents
contended, that C.L. had "become increasingly resistant to attending the LRC . . .
[and] fe[lt] stigmatized by having to leave the classroom to attend the LRC for
four periods per week."
In May 2008, the 504 Committee convened to begin planning for
C.L.'s fourth grade year. The 2008-09 504 Plan continued the services C.L. was
already receiving. As suggested by the CSE, however, C.L.'s LRC sessions were
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reduced from four to two times a week. Dissatisfied with the progress he was
making, C.L.'s parents informed the District on June 19, 2008, that they were
withdrawing C.L. from Greenacres and enrolling him at the Eagle Hill School.
3. The 2008-09 School Year at Eagle Hill
The Eagle Hill School is a private school for children with
disabilities. The school educates children with language-based learning
disabilities, approximately half of whom also have attention disorders. In
determining whether to admit C.L., Eagle Hill reviewed his educational records,
interviewed his parents, and observed him in a two-day visit during which he
was paired with a current student. Eagle Hill teachers evaluated C.L. to
determine his cognitive potential, learning style, and academic strengths and
needs, and considered whether he would benefit from the Eagle Hill program.
C.L. was admitted and assigned an advisor who met with him daily
to "coordinate[] and oversee[] [his] academic program," and to help him with
"goal setting, communication among the staff, communication between teaching
staff and specialists, [and] communication between school and home."
Eagle Hill employs a "diagnostic teaching model where teachers are
constantly, on a daily basis, assessing a child's progressed goal and making
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adjustments based on that assessment, tailoring accommodations to the child's
learning style." Class sizes at Eagle Hill are tailored to the strengths and
weaknesses of the individual students, and children with similar learning styles
are assigned to the same classes. C.L. was placed in a 3:1 ratio language arts
tutorial class for two periods daily to assist with his reading, comprehension,
writing, and study skills. For math, history, writing, literature, and modeling,
C.L. was placed in classes ranging from five to nine students in each class.
C.L.'s progress reports at Eagle Hill, issued in December 2008 and
June 2009, show that he made progress in all subject areas. C.L. also became
more active and enthusiastic over the school year, and was better able to express
his ideas and work independently.
C. Proceedings Below
1. Administrative Proceedings
On June 5, 2009, C.L.'s parents requested a due process hearing
before an IHO to seek reimbursement of the tuition that they paid to Eagle Hill.
The IHO concluded that at least by the third grade, if not before, C.L. was
receiving such "a substantial array of test modifications, classroom
accommodations, special education services and related services" that the District
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was obligated to evaluate him under the IDEA. The IHO further determined that
the District should have classified C.L. as disabled under the IDEA, which would
have entitled him to special education services and the creation of an IEP. The
IHO ruled that, by failing to provide an IEP for C.L., the District denied him a
FAPE. The IHO also concluded that the 504 Plan proposed by the District for the
2008-09 school year was not an appropriate substitute for an IEP because, among
other things, the 504 Plan recommended a general education class that was too
large. The IHO also held that the parents' private placement was appropriate
under the IDEA, highlighting the various services Eagle Hill offered C.L. and
noting the "significant progress" C.L. made during the 2008-09 school year. The
IHO then weighed the equities and found no reason to deny tuition
reimbursement.
On appeal, the SRO found error in the IHO's decision. Although the
SRO agreed that C.L. was indeed denied a FAPE, he concluded that the parents
failed to meet their burden of demonstrating that the private placement they
chose for C.L. was appropriate under the IDEA. In the SRO's view, there was
evidence in the record that C.L. "made progress" at Greenacres, and consequently
"[C.L.] did not require a special education environment such as Eagle Hill, which
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provided no opportunity for the student to interact with nondisabled peers."
The SRO then concluded: "When considering the restrictiveness of the parental
placement, under the facts of the instant case, I conclude that the parents are not
entitled to an award of tuition reimbursement based on the restrictiveness of
Eagle Hill." The SRO did not discuss any of the specific services provided at
Eagle Hill other than to observe that C.L. was not receiving occupational therapy
at Eagle Hill.
2. The District Court
C.L.'s parents filed suit in the district court seeking to have the SRO's
decision reversed. They also added a claim under Section 504 of the
Rehabilitation Act, arguing that the District had discriminated against C.L. on
account of his disabilities. The district court determined that the SRO's decision
was entitled to deference because there was evidence supporting the SRO's
conclusions that C.L. made progress at Greenacres and that he benefited from
interactions with his peers. C.L. v. Scarsdale Union Free Sch. Dist., 913 F. Supp. 2d
26, 36-39 (S.D.N.Y. 2012). The district court also found no evidence of bad faith
or deliberate indifference, as required to establish a Rehabilitation Act claim. Id.
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at 40-41. Consequently, the district court granted the District's cross-motion for
summary judgment as to both claims.
This appeal followed.
DISCUSSION
We address the IDEA and Rehabilitation Act claims in turn.
A. The IDEA Claim
1. Applicable Law
a. Standard for Tuition Reimbursement under the IDEA
Where a school district denies a disabled child a FAPE, the parents
may place the child in an appropriate private school and then seek tuition
reimbursement from the school district. See Burlington, 471 U.S. at 370; Florence
Cnty. Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 12-13 (1993). The parents
bear the burden of showing that the private placement they selected was
appropriate for the child and that the equities weigh in their favor. R.E. v.
N.Y.C. Dep't of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012), cert. denied, 133 S. Ct.
2802 (2013); M.S. ex rel. S.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d
96, 104 (2d Cir. 2000) , abrogated in part on other grounds, Schaffer v. Weast, 546 U.S.
49 (2005).
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The parents' placement of the child must be "'reasonably calculated
to enable the child to receive educational benefits,'" Frank G., 459 F.3d at 364
(quoting Rowley, 458 U.S. at 207), such that the placement is "likely to produce
progress, not regression," id. (quoting Walczak, 142 F.3d at 133). Progress may be
demonstrated by grades, test scores, regular advancement, or other objective
evidence, but no single factor is dispositive as "courts assessing the propriety of a
unilateral placement [must] consider the totality of the circumstances in
determining whether that placement reasonably serves a child's individual
needs." Id. An inquiry into the appropriateness of a private placement is thus a
search for indicators that "the placement provides 'educational instruction
specially designed to meet the unique needs of a [disabled] child, supported by
such services as are necessary to permit the child to benefit from instruction.'" Id.
at 365 (quoting Rowley, 458 U.S. at 188-89).
This case presents the issues of whether and, if so, to what extent a
parents' private placement must take into account the IDEA's "strong preference
for 'mainstreaming,' or educating children with disabilities '[t]o the maximum
extent appropriate' alongside their non-disabled peers." Grim v. Rhinebeck Cent.
Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003) (quoting 20 U.S.C. § 1412(a)(5)).
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With respect to the first issue, we have held that restrictiveness is a
factor in the parents' choice of private placement, for it remains the case that the
IDEA maintains a "strong preference" for educating disabled children in the least
restrictive environment. Walczak, 142 F.3d at 122. We have recognized that the
"IDEA's requirement that an appropriate education be in the mainstream to the
extent possible . . . remains a consideration that bears upon a parent's choice of
an alternative placement and may be considered by the hearing officer in
determining whether the placement was appropriate." M.S., 231 F.3d at 105
(citing 20 U.S.C. § 1412(5)(B)). 3 We held in M.S. that the SRO's conclusion that
the private placement was inappropriate was supportable, and thus we reversed
the district court's conclusion otherwise. Id.
With respect to the second issue, the extent to which the
restrictiveness of a private placement is a consideration in the appropriateness
inquiry, we note the following:
3
Other circuits have taken a perhaps broader approach. See, e.g., Cleveland
Heights-Univ. Heights City Sch. Dist. v. Boss ex rel. Boss, 144 F.3d 391, 400 (6th Cir. 1998)
("we hold that the failure of the [school] to satisfy the IDEA's mainstreaming
requirement does not bar the [parents] from receiving reimbursement"); Warren G. v.
Cumberland Cnty. Sch. Dist., 190 F.3d 80, 83-84 (3d Cir. 1999); C.B. ex rel. B.B. v. Special
Sch. Dist. No. 1, Minneapolis, Minn., 636 F.3d 981, 991 (8th Cir. 2011).
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First, parents "are not barred from reimbursement where a private
school they choose does not meet the IDEA definition of a free appropriate
public education." Frank G., 459 F.3d at 364 (citing 20 U.S.C. § 1401(9)); see also
Carter, 510 U.S. at 12-14 (observing that a number of IDEA provisions -- including
those requiring education of disabled children under public supervision and the
creation of IEPs designed by local educational agencies -- "do not make sense in
the context of a parental placement").
Second, along the same lines, "parents . . . may not be subject to the
same mainstreaming [or LRE] requirements as a school board." M.S., 231 F.3d at
105 (citing Warren G. v. Cumberland Cnty. Sch. Dist., 190 F.3d 80, 84 (3d Cir. 1999));
see also Frank G., 459 F.3d at 364. As the Fourth Circuit has pointed out, the
IDEA's LRE requirement "was aimed at preventing schools from segregating
[disabled] students from the general student body," but not necessarily "to
restrict parental options when the public schools fail to comply with the
requirements of the [IDEA]." Carter ex rel, Carter v. Florence Cnty. Sch. Dist. Four,
950 F.2d 156, 160 (4th Cir. 1991) (citing H.R. Rep. No. 94-332 (1975)), aff'd, 510
U.S. 7 (1993).
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Third, parents whose children are denied a FAPE may be and often
are forced to turn to specialized private schools that educate only disabled
children. Such private schools are necessarily restrictive as they do not educate
disabled and nondisabled children together, and may be more restrictive than
the public school from which the child was removed. Inflexibly requiring that
the parents secure a private school that is nonrestrictive, or at least as
nonrestrictive as the FAPE-denying public school, would undermine the right of
unilateral withdrawal the Supreme Court recognized in Burlington. See 471 U.S.
at 370; see also Boss, 144 F.3d at 400 (noting Congress did not intend for a parent
to choose between, on the one hand, letting child remain in FAPE-denying public
school, and, on the other hand, removing child to specialized private school
without tuition reimbursement merely because specialized private school is more
restrictive than FAPE-denying public school).
Finally, "the test for the parents' private placement is that it is
appropriate, and not that it is perfect." Warren G., 190 F.3d at 84.
Hence, while the restrictiveness of a private placement is a factor, by
no means is it dispositive. See Sumter Cnty. Sch. Dist. 17 v. Heffernan ex rel. TH,
642 F.3d 478, 488 (4th Cir. 2011) ("[W]hile a parental placement is not
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inappropriate simply because it does not meet the least-restrictive-environment
requirement, it is nonetheless proper for a court to consider the restrictiveness of
the private placement as a factor when determining the appropriateness of the
placement." (emphasis in original)). Restrictiveness may be relevant in choosing
between two or more otherwise appropriate private placement alternatives, or in
considering whether a private placement would be more restrictive than
necessary to meet the child's needs, but where the public school system denied
the child a FAPE, the restrictiveness of the private placement cannot be
measured against the restrictiveness of the public school option.
b. Standards of Review
We review de novo a district court's decision to grant summary
judgment on an IDEA claim. R.E., 694 F.3d at 184.
In considering an IDEA claim, a district court "must engage in an
independent review of the administrative record and make a determination
based on a preponderance of the evidence." Gagliardo v. Arlington Cent. Sch. Dist.,
489 F.3d 105, 112 (2d Cir. 2007) (quotation marks omitted); see also 20 U.S.C.
§ 1415(i)(2)(C)(iii); R.E., 694 F.3d at 184. The obligation to independently review
the record, however, "is by no means an invitation to the courts to substitute
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their own notions of sound educational policy for those of the school authorities
which they review." Rowley, 458 U.S. at 206. Federal courts "lack the specialized
knowledge and experience necessary to resolve persistent and difficult questions
of educational policy." Id. at 208 (quotation marks omitted). Consequently,
district courts must accord deference to state administrative agencies when
reviewing their IDEA decisions. See Gagliardo, 489 F.3d at 112-13; see also Cerra v.
Pawling Cent. Sch. Dist., 427 F.3d 186, 191 (2d Cir. 2005) ("In reviewing the
administrative proceedings, it is critical to recall that IDEA's statutory scheme
requires substantial deference to state administrative bodies on matters of
educational policy."). The deference owed, however, is not absolute as it "will
hinge on the kinds of considerations that normally determine whether any
particular judgment is persuasive, for example whether the decision being
reviewed is well-reasoned, and whether it was based on substantially greater
familiarity with the evidence and the witnesses than the reviewing court." M.H.
v. N.Y.C. Dep't of Educ., 685 F.3d 217, 244 (2d Cir. 2012).
Finally, as a general matter, "[w]hen an IHO and SRO reach
conflicting conclusions, we defer to the final decision of the state authorities, that
is, the SRO's decision." R.E., 694 F.3d at 189 (internal quotations marks and
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alterations omitted). Where the SRO's decision, however, is "insufficiently
reasoned to merit that deference" and the IHO's decision is "more thorough and
carefully considered," the reviewing court may consider and defer to the IHO's
decision. Id. at 189 (alteration omitted) (quoting M.H., 685 F.3d at 246); accord
C.F. ex rel. R.F. v. N.Y.C. Dep't of Educ., No. 11-5003-cv, 2014 WL 814884, at *5 (2d
Cir. Mar. 4, 2014).
2. Application
Both the IHO and SRO found that C.L. was denied a FAPE because
he should have been classified as a student with a disability who was eligible for
special education services under the IDEA. The District does not challenge these
findings. Hence, the questions presented are (a) whether C.L.'s placement at
Eagle Hill was appropriate, and, if so, (b) whether the equities weigh in favor of
C.L. and his parents. We address both questions in turn.
a. The Appropriateness of the Placement at Eagle Hill
We conclude that the SRO's decision that the placement at Eagle Hill
was not appropriate is not entitled to the deference ordinarily accorded to state
administrative IDEA decisions. The SRO's decision was not sufficiently reasoned
or carefully considered because the SRO did not consider or comment on any of
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the specific services provided to C.L. at Eagle Hill or the progress that the record
shows he made at the school. Instead, we defer to the IHO's decision, which was
more thorough and carefully considered. The IHO discussed in detail Eagle
Hill's services and C.L.'s progress there.
The SRO did not discuss the particulars of the Eagle Hill program or
whether its services were appropriate for C.L.'s needs, other than to note that
Eagle Hill did not provide occupational therapy services. C.L. was receiving
those services privately anyway, and his parents were not required in any event
to prove that the "private placement furnishes every special service necessary."
Frank G., 459 F.3d at 365.
In contrast, the IHO examined the specifics of the education C.L.
received at Eagle Hill. The IHO initially noted Dr. Agin's private
neurodevelopmental evaluation of C.L., which recommended that he be placed
in a private school that specializes in educating learning-disabled children. The
IHO then considered Eagle Hill's curriculum, describing it as "researched based
and individualized for each student," explaining that "[a] diagnostic model is
used in which a student's progress is assessed on a daily basis and adjustments
made as needed." The IHO also discussed how, before Eagle Hill admitted C.L.,
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"his educational records were reviewed, parents were interviewed and a two day
visit to the school by the student took place," after which the teachers who
instructed C.L. participated with an admissions team in determining C.L.'s
appropriateness for Eagle Hill. The IHO found "that such a process is likely to
result in an appropriate placement."
The IHO also delved into the specifics of C.L.'s classes, recounting
how "C.L. received a tutorial class two periods per day with three students
instructed by a special education teacher specifically aimed at remediating the
student's weaknesses in written expression and study skills, areas of significant
need for C.L." That tutorial class, the IHO found "was a particularly appropriate
program for C.L." The IHO also discussed C.L.'s small class sizes at Eagle Hill:
five to eight students for math and history, nine for literature, and seven for
writing. For that writing class, the IHO explained that "modeling and other
special strategies were used for instruction" because it was an "area of substantial
deficit for C.L."
Moreover, the IHO related how "[i]n addition to small class
instruction using individualized teaching strategies and a daily tutorial period in
areas of significant difficulty, Eagle Hill provided C.L. with an advisor who met
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with the student daily, observed him in class, and participated in weekly staff
meetings regarding the student." None of this was so much as mentioned by the
SRO. The SRO could not diligently consider whether Eagle Hill was appropriate
without assessing what the school had to offer.
The SRO likewise did not examine C.L.'s progress at Eagle Hill, as
reflected in progress reports, standardized test results, and year-end letters to his
parents. The IHO, by comparison, found that "C.L. plainly made significant
progress at Eagle Hill during the 2008/09 school year." Citing C.L.'s progress
reports and the testimony of Eagle Hill's Director of Admissions, the IHO
explained: "He became enthusiastic about attending school, more confident as a
learner, [and] better able to express himself and work independently." The IHO
also noted that C.L.'s parent believed Eagle Hill had made C.L. "more
independent and confident with less anxiety and better able to make friends."
Again, none of this was mentioned by the SRO.
By not taking into consideration Eagle Hill's services or C.L.'s
progress, the SRO improperly gave dispositive weight to the restrictiveness of
Eagle Hill in reaching the conclusion that it was inappropriate for C.L. The SRO
determined that, because C.L. was making progress in Greenacres's
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nonrestrictive general education classrooms with supports and services, Eagle
Hill's restrictive program was not the least restrictive environment in which C.L.
could obtain an appropriate education.4 In effect, the SRO ruled Eagle Hill
inappropriate merely because it was more restrictive than Greenacres. This was
error, for the reasons we discussed above. C.L.'s parents were not precluded
from selecting Eagle Hill merely because it was more restrictive than Greenacres.
In contrast to the SRO, the IHO considered the restrictiveness of Eagle Hill
without giving it dispositive weight, concluding that "C.L.'s need for a small
class, special education program with specific programs and strategies to address
C.L.'s significant needs far outweighs [the] benefit from interaction with non-
disabled peers."
4
To be sure, there was substantial evidence in the record to support the
SRO's conclusion that C.L. made progress at Greenacres, including favorable test results
and report cards. But overall, the results were decidedly mixed, and C.L. continued to
have difficulties while at Greenacres. The private evaluations, for example, showed
significant academic and learning deficiencies. Moreover, the progress that C.L. made
at Greenacres was undoubtedly the result of the "increasing amounts of special
education services, programs, and accommodations" that he was receiving, including
"an aide for most of the day" and "substantial 1:1 assistance from the regular education
teacher."
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On these bases, the IHO ruled that "Eagle Hill is an appropriate, if
not an ideal placement for C.L." We are persuaded by the IHO's reasoning, and
we thus defer to the IHO's conclusion that Eagle Hill was appropriate for C.L.
b. The Equities
We also defer to the IHO's ruling with respect to the weighing of the
equities, an issue that the SRO did not reach after finding the placement at Eagle
Hill inappropriate. Important to the equitable consideration is whether the
parents obstructed or were uncooperative in the school district's efforts to meet
its obligations under the IDEA. See Warren G., 190 F.3d at 85-86. As the IHO
noted, the parents cooperated with the District in its efforts to meet its
obligations under the IDEA. See id. Hence, their pursuit of a private placement
was not a basis for denying their tuition reimbursement, even assuming, as the
District contended before the IHO, that the parents never intended to keep C.L.
in public school for the 2008-09 school year. The fact is that the parents also
requested that the District evaluate C.L. under the IDEA and develop an IEP for
him. When the District determined -- incorrectly -- that C.L. was not entitled to
special services under the IDEA, it was appropriate for the parents to turn to a
private placement.
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The question remains whether to reverse or remand for further
development of the record. Here, where the SRO's analysis was not sufficiently
reasoned but the IHO's detailed findings and conclusions were thorough and
carefully considered, we defer to the IHO and reverse for the reimbursement of
tuition as awarded by the IHO.
B. The Rehabilitation Act Claim
We turn to C.L.'s Rehabilitation Act claim. Section 504 provides:
No otherwise qualified individual with a
disability in the United States, . . . shall, solely by
reason of her or his disability, be excluded from
the participation in, be denied the benefits of, or
be subjected to discrimination under any
program or activity receiving Federal financial
assistance.
29 U.S.C. § 794 (a). A prima facie violation of Section 504 requires proof from the
plaintiff that "(1) he is a '[disabled] person' under the Rehabilitation Act; (2) he is
'otherwise qualified' for the program; (3) he is excluded from benefits solely
because of his [disability]; and (4) the program or special service receives federal
funding." Mrs. C. v. Wheaton, 916 F.2d 69, 74 (2d Cir. 1990). Courts in this Circuit
have recognized that a Section 504 claim may be predicated on the claim that a
disabled student was "denied access to a free appropriate education, as
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compared to the free appropriate education non-disabled students receive." S.W.
by J.W. v. Warren, 528 F. Supp. 2d 282, 290 (S.D.N.Y. 2007); see also BD v. DeBuono,
130 F. Supp. 2d 401, 439 (S.D.N.Y. 2000). Such a claim, however, requires proof
of bad faith or gross misjudgment. See Wenger v. Canastota Cent. Sch. Dist., 979 F.
Supp. 147, 152 (N.D.N.Y. 1997) ("[S]omething more than a mere violation of the
IDEA is necessary in order to show a violation of Section 504 in the context of
educating children with disabilities, i.e., a plaintiff must demonstrate that a
school district acted with bad faith or gross misjudgment."), aff'd mem., 208 F.3d
204 (2d Cir. 2000).
Here, as the district court held, the parents failed to present
sufficient evidence of bad faith or gross misjudgment to raise an issue for trial.
They claim that the District "deliberately" limited the accommodations provided
to C.L. to avoid triggering policies that would have required the development of
an IEP. They fail, however, to point to any concrete evidence to support the
assertion. On this record, no reasonable factfinder could find bad faith or gross
misjudgment. The fact that the District was wrong in concluding that C.L. was
not entitled to an IEP does not, without more, mean that it acted in violation of
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the Rehabilitation Act. See S.W. by J.W., 528 F. Supp. 2d at 289; Wenger v.
Canastota Ctrl. Sch. Dist., 979 F. Supp. at 152.
CONCLUSION
We conclude that the district court erred in dismissing the parents'
IDEA claim for private tuition reimbursement, but that it correctly dismissed
their Rehabilitation Act claim. Accordingly, the judgment of the district court is
REVERSED in part and AFFIRMED in part, and we REMAND the case to the
district court with instructions to enter judgment in favor of plaintiffs-appellants
on their IDEA claim.
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