Doe Ex Rel. Doe v. East Lyme Board of Education

14-1261-cv(L)
Doe v. East Lyme Bd. of Educ.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2014

(Argued: March 13, 2015 Decided: June 26, 2015)

Docket No. 14-1261-cv(L), 14-1638-cv(XAP)

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JANE DOE, JOHN DOE, by and through his
parent Jane Doe,

Plaintiffs-Appellees-
Cross-Appellants,

- v.-

EAST LYME BOARD OF EDUCATION,

Defendant-Appellant-
Cross-Appellee,

DEPARTMENT OF EDUCATION, CONNECTICUT
STATE,

Defendant.

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 Before: JACOBS and LOHIER, Circuit Judges, and SHARPE,
District Judge.*

The East Lyme Board of Education (the “Board”) appeals from the

judgment of the United States District Court for the District of Connecticut

(Arterton, J.), holding that the Board violated the stay-put provision of the

Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415(j), and

awarding reimbursement to Jane Doe and her son, John Doe. The Does cross-

appeal from the amount of reimbursement and from the district court’s rejection

of their other IDEA claims.

We affirm in most respects, but vacate and remand for entry of judgment

in favor of the Does for the full value of services that the Board was required to

fund under the stay-put provision, calculated from the date that Jane Doe

initiated administrative proceedings, in part as reimbursement and in remaining

part as compensatory education.

Affirmed in part, vacated in part, and remanded for further proceedings

consistent with this opinion.

*
Chief Judge Gary L. Sharpe, of the United States District Court for the
Northern District of New York, sitting by designation.

2
 EILEEN M. HAGERTY, Kotin, Crabtree &
Strong, LLP, Boston, Massachusetts, for
Plaintiffs-Appellees-Cross-
Appellants.

SHELDON D. MYERS, Kainen, Escalera &
McHale, P.C., Hartford, Connecticut, for
Defendant-Appellant-Cross-Appellee.

DENNIS JACOBS, Circuit Judge:

John Doe (the “Student”) has autism and requires special education

services. He and his mother, Jane Doe (the “Parent”), reside within the East

Lyme Public School District (the “District”) under the jurisdiction of the East

Lyme Board of Education (the “Board”). Up through the 2008-2009 school year,

the Board and the Parent agreed on individualized education plans (“IEPs”)

setting forth special education services, consisting of school placement and

additional related services, that the Board would provide or fund.

Following disagreements over the IEP for 2009-2010, the Parent placed the

Student in a private school outside the District, and continued to privately obtain

some (but not all) of the related services previously funded by the Board. The

Board refused to pay for the private school or any related services on the ground

3
that it ceased to be responsible for the Student once he was enrolled outside the

District.

The Parent brought suit under the Individuals with Disabilities Education

Act (“IDEA”), 20 U.S.C. § 1400 et seq., alleging that the Board offered an

inadequate IEP for 2009-2010 and failed to offer any IEP for 2010-2011 (and

subsequent school years), thereby denying the Student a free appropriate public

education (“FAPE”), see 20 U.S.C. § 1412(a)(1).

The district court dismissed these claims. As to 2009-2010, the court ruled

that the IEP provided the Student with a FAPE. As to 2010-2011 (and subsequent

school years), the court ruled that the Board violated the IDEA by failing to offer

any IEPs, but that the Parent was not entitled to relief because the private school

in which she enrolled the Student was an inappropriate placement.

The court did award the Parent some relief. Citing the stay-put provision

of the IDEA, 20 U.S.C. § 1415(j), which provides for a child’s continuance in the

“then-current educational placement” during the pendency of proceedings

(absent agreement otherwise), the court ruled that the Board was in violation for

failing to fund the related services described in the 2008-2009 IEP once the parties

4
reached an impasse. Accordingly, the court ordered the Board to reimburse the

Parent for any such services she actually paid for out of pocket.

We affirm the judgment in most respects, but vacate the award of

reimbursement and remand the case for further proceedings. We hold that the

appropriate equitable relief for a stay-put violation is reimbursement or

compensatory education (or both) for the full value of services that the

educational agency was required to fund, not the (lesser) value of services the

Parent was able to afford. We further hold that an educational agency’s

obligation to maintain stay-put placement is triggered when an administrative

due process proceeding is initiated, not when an impasse is reached.

BACKGROUND

The Student was nine years old at the beginning of the 2009-2010 school

year. Because of his autism, the Student experiences difficulties with social

interaction and communication, particularly, speech and reading. He and the

Parent both reside within the District in East Lyme, Connecticut.

The Student attended public school in the District until December 2006,

when the Board and the Parent agreed on publicly-funded placement at Hope

5
Academy, a private school. In 2008, dissatisfied with the Student’s progress at

Hope Academy, the Parent placed him at Solomon Schechter Academy

(“Solomon”) in New London, Connecticut. Solomon is a private religious school

that provides no specialized instruction to students with disabilities. The Parent

and the Board agreed that the Parent would pay the tuition at Solomon, while the

Board would fund additional related services, such as specialized reading

instruction and speech therapy, which would be delivered by private providers

outside the classroom.

Accordingly, the Board issued an IEP in December 2008 (the “2008-2009

IEP”), which provided that the Parent would pay for tuition at Solomon, while

the Board would pay for the following related services: Orton-Gillingham

reading instruction (5 hours/week), speech therapy (2.5 hours/week), and

occupational/physical therapy (1.5 hours/week). In February, the parties

amended the IEP to increase speech therapy to 3 hours per week. As discussed

in greater detail below, it is this amended 2008-2009 IEP that furnishes the “then-

current educational placement” for stay-put purposes.

On June 17, 2009, the Parent met with Board representatives to discuss the

2009-2010 placement. Dr. Corinne Berglund, the Board’s Director of Special

6
Education, advised the Parent that the Board would not pay for tuition at

Solomon and suggested that the Student be enrolled instead at Niantic Center

School (“Niantic”), a public school in the District. The parties reached an

impasse. A month later, the Board issued an IEP (the “2009-2010 IEP”) placing

the Student at Niantic or his local elementary school and offering a program that

included: a case manager, “code emphasis reading that incorporates Orton-

Gillingham principles” (50 minutes/day), speech therapy (2.5 hours/week),

occupational therapy (1 hour/week), and physical therapy (20 minutes/week).

The Parent rejected the IEP, advised the Board that she would keep the Student

at Solomon, and conveyed her expectation that the Board would continue paying

for related services. The demands for related services were based on

recommendations by the Student’s treating clinician, Dr. Robert Kemper.

The Student continued to attend Solomon during the 2009-2010 school

year, and was regularly pulled out of the classroom to receive special education

services (which Solomon did not offer) from private providers. The Parent also

arranged for the Student to receive some instruction over the summer. The

Parent absorbed all of these educational expenses.

7
 In August 2010, the Parent advised the Board that, unless she received a

satisfactory IEP, she would continue the enrollment at Solomon for 2010-2011,

and demanded reimbursement of her expenses. The Board refused, on the

ground that the Student’s enrollment at Solomon terminated the Board’s

obligations under the IDEA.

On April 27, 2010, the Parent filed an administrative due process

complaint, which she temporarily withdrew, but then refiled, in September 2010.

See 20 U.S.C. § 1415(f), (i); Conn. Gen. Stat. § 10-76h. The Parent alleged that the

Board failed to provide the Student with a FAPE and violated various procedural

requirements under the IDEA and Connecticut law. The Parent sought

reimbursement of the tuition at Solomon and the costs of the related services.1

The administrative hearing officer ruled in favor of the Board. The officer

found (inter alia) that the Board had offered a FAPE during the relevant school

years, and that the lack of special education services at Solomon made it an

inappropriate placement. Accordingly, the officer awarded no reimbursement.

1
The Parent did not seek reimbursement of Solomon tuition for the 2008-
2009 school year, which the parties had agreed she would pay.

8
The Parent then sought judicial review in the United States District Court for the

District of Connecticut.2 See 20 U.S.C. § 1415(i)(2).

The parties cross-moved for summary judgment on the basis of the

administrative record. The district court (Arterton, J.) ruled that as to 2009-2010,

the Board offered the Student a FAPE, and that though the Board failed to

propose an IEP for 2010-2011 (and the subsequent school years), the Parent was

not entitled to relief because Solomon was an inappropriate placement.3

However, the court concluded that the Board violated the stay-put

provision of the IDEA, 20 U.S.C. § 1415(j), by refusing to continue funding the

related services described in the amended 2008-2009 IEP once the parties reached

an impasse. The court held that the Board’s obligation to fund those services

triggered as of June 17, 2009 (when impasse was reached), and ordered the Board

to reimburse the Parent for related services she funded since that date. Over the

Parent’s objection that the Board owed more services than she had been able to

2
The Connecticut State Department of Education, initially named as a
defendant, was voluntarily dismissed.
3
The motions were referred to Magistrate Judge Margolis, who issued two
recommended rulings that the district court adopted with modification.

9
afford, the court limited the amount of reimbursement to the Parent’s out-of-

pocket expenses.

The parties cross-appeal. The Board argues (inter alia) that the Student’s

enrollment at Solomon terminated its obligations under the IDEA altogether, that

it prevailed on the FAPE claim, and that liability for a stay-put violation is

conditional on the Parent’s prevailing on the FAPE claim. The Parent argues

(inter alia) that the Board failed to provide a FAPE, and that Solomon was an

appropriate placement. The parties also contest the award of reimbursement on

a number of grounds. Most significantly, the Board argues that the court

improperly awarded reimbursement for services rendered before the Parent

initiated administrative due process proceedings, while the Parent argues that

the court should have awarded relief for the full value of the related services, not

just the (lesser) value of services she was able to afford.

DISCUSSION

The Parent asserts two conceptually distinct claims: (I) a denial-of-FAPE

claim based on the inadequacy of the 2009-2010 IEP, the Board’s failure to issue

IEPs for later school years, and the appropriateness of Solomon as an educational

10
placement, see 20 U.S.C. § 1412(a)(1); and (II) a stay-put claim based on the

Board’s refusal to fund related services described in the amended 2008-2009 IEP

during the pendency of proceedings, see 20 U.S.C. § 1415(j). In connection with

the stay-put claim, on which the Parent prevailed below, both parties contest the

appropriateness of the relief fashioned by the district court, see 20 U.S.C.

§ 1415(i)(2)(C)(iii).

We review de novo the district court’s rulings as to liability under the

IDEA. Lillbask ex rel. Mauclaire v. State of Conn. Dep’t of Educ., 397 F.3d 77, 83

(2d Cir. 2005). We review for abuse of discretion the fashioning of relief under 20

U.S.C. § 1415(i)(2)(C)(iii). See Florence Cnty. Sch. Dist. Four v. Carter By &

Through Carter, 510 U.S. 7, 16 (1993); see also T.M. ex rel. A.M. v. Cornwall Cent.

Sch. Dist., 752 F.3d 145, 170 (2d Cir. 2014).

I

“Under the IDEA, federal money is available to assist state and local

agencies in educating handicapped children, provided that the recipients of those

funds comply with various provisions of the Act.” Bd. of Educ. of Pawling Cent.

Sch. Dist. v. Schutz, 290 F.3d 476, 481 (2d Cir. 2002) (internal quotation marks

11
omitted). Through its state and local educational agencies,4 a participating state

must make “[a] free appropriate public education . . . available to all children

with disabilities residing in the State.” 20 U.S.C. § 1412(a)(1)(A). To achieve that

end, educational agencies must issue individualized educational plans (“IEPs”)

specifying “the educational needs of [the] handicapped child and the specially

designed instruction and related services to be employed to meet those needs.”

Sch. Comm. of Town of Burlington, Mass. v. Dep’t of Educ. of Mass., 471 U.S.

359, 368 (1985); see 20 U.S.C. § 1414(d). The term “related services” encompasses

“transportation, and such developmental, corrective, and other supportive

services . . . as may be required to assist a child with a disability to benefit from

special education.” 20 U.S.C. § 1401(26)(A).

“If a state fails in its obligation to provide a free appropriate public

education to a handicapped child, the parents may enroll the child in a private

school and seek retroactive reimbursement for the cost of the private school from

the state.” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 363 (2d Cir. 2006).

Private placement is reimbursable only if “such placement, rather than a

4
In this case, “state educational agency” refers to the Connecticut State
Department of Education, see 20 U.S.C. § 1401(32), and “local educational
agency” refers to the Board, see 20 U.S.C. § 1401(19).

12
proposed IEP, is proper under the Act.” Burlington, 471 U.S. at 369; see also 20

U.S.C. § 1412(a)(10)(C)(ii).5

“We undertake a three-step process to determine whether parents are

entitled to tuition reimbursement.” T.Y. v. N.Y.C. Dep’t of Educ., 584 F.3d 412,

417 (2d Cir. 2009); see also Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d

Cir. 2005).6 The first two steps concern the adequacy of the IEP: “whether the

school district has complied with the IDEA’s procedural requirements” and

“whether the IEP is reasonably calculated to enable the child to receive

educational benefits.” T.Y., 584 F.3d at 417 (internal quotation marks omitted).

The third step concerns the appropriateness of the parent’s placement: “whether

the private schooling obtained by the parents is appropriate to the child’s needs.”

Id. (internal quotation marks omitted). The parent must prevail at all three steps

to receive reimbursement.

5
A state or local educational agency may also consent to publicly-funded
placement at a private school if such placement is necessary to carry out the
requirements of the IDEA. 20 U.S.C. § 1412(a)(10)(B)(i).
6
Our cases have sometimes collapsed the first and second steps into a single
inquiry and, accordingly, characterized the analysis as having two (not three)
steps. E.g., Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111-12 (2d Cir.
2007); M.C. ex rel. Mrs. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 66 (2d Cir.
2000). This is a difference of enumeration, not of substance.

13
 A

The Parent argues that the Student was denied a FAPE for the 2009-2010

school year because the IEP issued by the Board that year was deficient both

procedurally and substantively. We disagree.

1

The premise of the procedural claim is that the Parent was deprived of the

right to participate in the development of the 2009-2010 IEP, because it was

issued after the last meeting at which she was present.

Under the IDEA, the “IEP Team” responsible for developing an IEP must

include the child’s parents.7 20 U.S.C. § 1414(d)(1)(B). In addition, “[e]ach local

educational agency or State educational agency shall ensure that the parents of

each child with a disability are members of any group that makes decisions on

the educational placement of their child.” 20 U.S.C. § 1414(e); see also 34 C.F.R.

§ 300.501(b), (c); Conn. Gen. Stat. § 10-76d; Conn. Agencies Regs. § 10-76d-12.

The IDEA thus confers on parents a right of “participation . . . throughout the

development of the IEP.” Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist.,

7
Under Connecticut state law, the IEP Team is called the “planning and
placement team” or “PPT.” See Conn. Agencies Regs. § 10-76a-1(14). For
consistency, we use the federal statutory term.

14
Westchester Cnty. v. Rowley, 458 U.S. 176, 206 (1982). At the same time, the duty

to issue an IEP remains with the educational agency, see 20 U.S.C.

§ 1414(d)(2)(A), and a parent’s right of participation is not a right to “veto” the

agency’s proposed IEP, T.Y., 584 F.3d at 420. Parental dissatisfaction is channeled

through administrative and (if necessary) judicial proceedings. M.C. ex rel. Mrs.

C. v. Voluntown Bd. of Educ., 226 F.3d 60, 62 (2d Cir. 2000); see 20 U.S.C.

§ 1415(i).

The Parent’s right of participation was not violated. She fully participated

in the June 17, 2009 meeting of the IEP Team at which the 2009-2010 placement

was discussed. Nothing in the record suggests that the IEP Team ever met

without her presence.

The argument comes down to whether the Board could, after the meeting,

issue an IEP without the Parent being physically present. We conclude that it

could. The right of participation encompasses the right to offer input and to have

that input considered; it does not entail a right to be physically present

throughout the agency’s own decisional process. See 34 C.F.R. § 300.501(b)(3)

(participation right does not require parental presence at “informal or

unscheduled conversations involving public agency personnel” or “preparatory

15
activities that public agency personnel engage in to develop a proposal”). So

long as a parent has a meaningful opportunity to offer input, parental rights to be

part of the IEP Team, 20 U.S.C. § 1414(d)(1)(B), and to participate in “any group

that makes decisions on the educational placement of [the] child,” 20 U.S.C.

§ 1414(e), have been respected. See Cerra, 427 F.3d at 193-94 (finding no

procedural violation where final IEP was issued over two months after IEP Team

meeting at which parent “actively” participated).

2

The Parent’s substantive challenge to the adequacy of the 2009-2010 IEP is

likewise rejected. To be substantively adequate, an IEP must be “reasonably

calculated to enable the child to receive educational benefits”; while an IEP need

not “furnish every special service necessary to maximize each handicapped

child’s potential,” it must be “likely to produce progress” that is more than

“trivial advancement.” Cerra, 427 F.3d at 194-95 (internal quotation marks and

brackets omitted). On this question, substantial deference is owed to the

judgments of state administrative officers. Id. at 191. “[C]ourts lack the

specialized knowledge and experience necessary to resolve persistent and

difficult questions of educational policy.” Rowley, 458 U.S. at 208 (internal

16
quotation marks omitted); see also Gagliardo v. Arlington Cent. Sch. Dist., 489

F.3d 105, 112 (2d Cir. 2007); Cerra, 427 F.3d at 195.

The 2009-2010 IEP offered placement at a public school (Niantic) staffed

with a special education teacher, as well as: a case manager, “code emphasis

reading that incorporates Orton-Gillingham principles” (50 minutes/day), speech

therapy (2.5 hours/week), occupational therapy (1 hour/week), and physical

therapy (20 minutes/week). The administrative hearing officer concluded that

this combination of placement and services was substantively adequate. We see

no basis in the record to reject that conclusion.

* * *

For the foregoing reasons, the Board provided the Student with a FAPE for

the 2009-2010 school year.

B

The Board refused to propose an IEP for the 2010-2011 school year or any

of the subsequent school years.8 The district court concluded that this amounted

8
The parties and the district court focused on the 2010-2011 school year, but
the same analysis applies to later school years, for which the Board also declined
to offer IEPs.

17
to a denial of a FAPE, but that in any event the Parent was entitled to no relief

because the Student’s enrollment at Solomon was itself inappropriate. We agree.

1

The Board was required to offer the Student an IEP for 2010-2011 and each

of the following school years. The IDEA requires that “[a]t the beginning of each

school year, each local educational agency, State educational agency, or other State

agency . . . shall have in effect, for each child with a disability in the agency’s

jurisdiction, an individualized education program.” 20 U.S.C. § 1414(d)(2)(A)

(emphases added); see also 34 C.F.R. § 300.323. It is undisputed that the Student

was, at all relevant times, resident in East Lyme and within the Board’s

jurisdiction. The Board therefore violated the IDEA by failing to offer IEPs for

these school years, and these violations deprived the Student of a FAPE.

“[W]hen a child requires special-education services, a school district’s failure to

propose an IEP of any kind is at least as serious a violation of its responsibilities

under IDEA as a failure to provide an adequate IEP.” Forest Grove Sch. Dist. v.

T.A., 557 U.S. 230, 238-39 (2009).

The Board argues that the Student’s enrollment at Solomon, outside of the

District’s borders, terminated any obligations it owed under the IDEA. That is

18
incorrect. A local educational agency’s duty to provide a FAPE is not ended by

enrollment of a resident child in a private school outside the district. True, the

educational agency in the jurisdiction where the private school is located may

have its own obligations, most notably, the obligation to conduct “child find.”

See 34 C.F.R. § 300.131(a) (“Each [local educational agency] must locate, identify,

and evaluate all children with disabilities who are enrolled by their parents in

private . . . schools located in the school district served by the [agency].”). But the

duty to offer a FAPE remains with the agency where the child resides; and a

FAPE cannot be offered unless an IEP is issued. See 71 Fed. Reg. 46593 (Aug. 14,

2006) (“If a determination is made by the [local educational agency] where the

private school is located that a child needs special education and related services,

the [local educational agency] where the child resides is responsible for making

FAPE available to the child.” (emphasis added)).

The IDEA thus provides that a local educational agency is relieved of its

obligation to pay for a resident child’s private school tuition “if that agency made

a free appropriate public education available to the child and the parents elected to

place the child” elsewhere. 20 U.S.C. § 1412(a)(10)(C)(i) (emphasis added); see

also Frank G., 459 F.3d at 370. But without the benefit of an IEP from the district

19
of residence, a parent could not intelligently evaluate whether the child was

offered a FAPE or “elect[] to place” the child elsewhere.9 Thus an educational

agency must issue an IEP for a resident qualifying child, even if that child has

been enrolled in a private school outside the boundaries of the school district.

2

The Board’s failure to provide a FAPE notwithstanding, the Parent is

entitled to relief only if she meets “the burden of demonstrating that [the] private

placement was appropriate.” Gagliardo, 489 F.3d at 112. Generally, “the same

considerations and criteria that apply in determining whether the School

District’s placement is appropriate should be considered in determining the

appropriateness of the parents’ placement”; accordingly, the private placement

9
A local educational agency may not be required to offer an IEP if the
parent’s expressed intention is to enroll the child in a private school outside the
district, without regard to any IEP. See 71 Fed. Reg. 46593 (“If the parent makes
clear his or her intention to keep the child enrolled in the private . . . school
located in another [jurisdiction], the [local educational agency] where the child
resides need not make FAPE available to the child.”); see also J.G. v. Briarcliff
Manor Union Free Sch. Dist., 682 F. Supp. 2d 387, 397 (S.D.N.Y. 2010). But see
Union Sch. Dist. v. Smith, 15 F.3d 1519, 1526 (9th Cir. 1994) (“We find that a
school district cannot escape its obligation under the IDEA to offer formally an
appropriate educational placement by arguing that a disabled child’s parents
expressed unwillingness to accept that placement.”). In this case, there is no
evidence that the Parent would have categorically refused any IEP the Board
offered.

20
must be “reasonably calculated to enable the child to receive educational

benefits.” Frank G., 459 F.3d at 364 (internal quotation marks omitted).

The administrative hearing officer found that the placement at Solomon

was inappropriate because that school was not tailored to meet the Student’s

special needs, which had to be addressed by outside providers. True, “[a]n

appropriate private placement need not meet state education standards or

requirements” or “provide certified special education teachers or an IEP for the

disabled student.” Frank G., 459 F.3d at 364; see also Carter, 510 U.S. at 13.

However, “assessment of educational progress is a type of judgment for which

the district court should defer to the [administrative hearing officer’s]

educational experience.” Frank G., 459 F.3d at 367 (internal quotation marks

omitted).

We see no reason to overturn the administrative officer’s finding, which is

adequately supported by the record. A representative from Solomon testified

that the school did not offer any special education services and did not modify its

curriculum to fit the Student; to receive the special instruction recommended by

21
Dr. Kemper, the Student had to be pulled out of classes frequently.10 The main

benefits of Solomon to the Student were small class sizes and some modified

grading procedures. But the former is the “the kind of educational and

environmental advantage[] . . . that might be preferred by parents of any child,

disabled or not.” Gagliardo, 489 F.3d at 115. And the latter, while an

accommodation, “did not provide the special education services specifically

needed by [the Student]--namely, an educational setting consistent with [the

clinician’s] recommendation.” Id. at 114. Solomon did not provide any of the

specialized instruction recommended by Dr. Kemper.

* * *

In summary: the Board denied the Student a FAPE during the 2010-2011

school year (and subsequent school years); the district court nevertheless

properly awarded no relief as to that claim because enrollment at Solomon was

itself inappropriate for the Student; accordingly, and in light of our conclusion

that the Student received a FAPE for 2009-2010, we affirm the district court’s

grant of summary judgment in the Board’s favor on the FAPE claim.

10
Because of the need for outside services, the Student regularly missed his
classes in social studies, art, math, and computers.

22
 We turn to the stay-put claim, on which the Parent prevailed before the

district court.

II

The stay-put provision of the IDEA provides that “during 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.” 20 U.S.C. § 1415(j). The

purpose of the provision is “to maintain the educational status quo while the

parties’ dispute is being resolved.” T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist.,

752 F.3d 145, 152 (2d Cir. 2014). “It therefore requires a school district to continue

funding whatever educational placement was last agreed upon for the child until

the relevant administrative and judicial proceedings are complete.” Id. at 171.

A

To determine a child’s “then-current educational placement,” a court

typically looks to: (1) “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

23
the time of the previously implemented IEP.” Mackey ex rel. Thomas M. v. Bd.

of Educ. For Arlington Cent. Sch. Dist., 386 F.3d 158, 163 (2d Cir. 2004) (internal

quotation marks, ellipsis, and brackets omitted).11

As the district court determined, the Student’s stay-put placement was the

placement described in the 2008-2009 IEP (as amended in February 2009), which

was both the most recently implemented IEP and the last one agreed upon by the

parties. It is undisputed that the Board refused to pay for the services described

in that IEP during the pendency of administrative and judicial proceedings. The

Board thus violated the stay-put provision.

The Board’s arguments to the contrary are meritless.

First, the Board argues that the Parent should not be permitted to obtain

reimbursement for tuition at Solomon by unilaterally enrolling the Student there.

But the stay-put claim does not seek reimbursement of Solomon tuition; it seeks

relief for the related services.

Second, the Board argues that the related services it agreed to fund did not

form part of the Student’s educational placement for 2008-2009. To the contrary,

11
A stay-put placement may also be created by the parties’ agreement or by
administrative or judicial order. Schutz, 290 F.3d at 484.

24
the IDEA defines “free appropriate public education” to include “special

education and related services,” 20 U.S.C. § 1401(9) (emphasis added); and the term

“related services” is defined to mean services that “may be required to assist a

child with a disability to benefit from special education,” 20 U.S.C. § 1401(26)(A)

(emphasis added). We have applied the stay-put provision to payments for

related services. E.g., T.M., 752 F.3d at 151.12

Third, the Board argues that the 2008-2009 IEP cannot be a stay-put

placement because the parties intended it to be a temporary arrangement. That is

beside the point. The Board’s obligation to fund stay-put placement is rooted in

statute, not contract. The parties’ intent as to the duration of the IEP (or the

February 2009 amendment to it) therefore does not matter.

Finally, the Board contends that it cannot be held liable for a stay-put

violation if it in fact provided a FAPE. Not so. “A claim for tuition

12
The Board cites Zvi D. by Shirley D. v. Ambach, 694 F.2d 904, 908 (2d Cir.
1982), for the proposition that, in the context of stay-put, “[p]ayment and
placement are two different matters.” But, in Zvi D., the payment obligation was
imposed by a stipulation entered into for litigation purposes; here, the obligation
to fund related services arises from an IEP. In any event, we have expressed
doubts that this aspect of Zvi D. remains good law. See Schutz, 290 F.3d at 483
n.7 (“Zvi D. predates the [Supreme] Court’s decision in Burlington, and the
consequent changes to the federal regulations.”).

25
reimbursement pursuant to the stay-put provision is evaluated independently

from the evaluation of a claim for tuition reimbursement pursuant to the

inadequacy of an IEP.” Mackey, 386 F.3d at 160. “Section 1415(j) represents

Congress’ policy choice that all handicapped children, regardless of whether their

case is meritorious or not, are to remain in their current educational placement until

the dispute with regard to their placement is ultimately resolved.” Id. (citation,

internal quotation marks, and brackets omitted); see also T.M., 752 F.3d at 170. In

short, the stay-put provision means that an educational agency is required to

maintain the status quo placement even if the child would otherwise have no

substantive right to it. See Mackey, 386 F.3d at 165.

The Supreme Court’s decision in Burlington is not to the contrary.13

Burlington observed that “parents who unilaterally change their child’s

placement during the pendency of review proceedings, without the consent of

state or local school officials, do so at their own financial risk” because “[i]f the

13
The Board also misreads 20 U.S.C. § 1412(a)(10)(C)(i). That section
provides that private school tuition is not reimbursable through a FAPE claim if
the educational agency in fact offered a FAPE. See Frank G., 459 F.3d at 370. It
does not insulate an educational agency from liability for violating its separate
legal duty--under a different section of the statute, 20 U.S.C. § 1415(j)--to preserve
a stay-put placement during the pendency of proceedings.

26
courts ultimately determine that the IEP proposed by the school officials was

appropriate, the parents would be barred from obtaining reimbursement for any

interim period in which their child’s placement violated [§ 1415(j)].”14 471 U.S. at

373-74.

Burlington stands for an unremarkable proposition: when a parent rejects a

stay-put placement by unilaterally placing the child elsewhere, retroactive

reimbursement for the unilateral placement is available, if at all, only through a

FAPE claim. See T.M., 752 F.3d at 172 (“When [the child’s] parents rejected [the

agency’s] offer to provide pendency services directly for the 2011–2012 year, they

took responsibility for the cost of obtaining those services from private

providers.” (citing Burlington, 471 U.S. at 373-74)).

We are not confronted with a Burlington scenario. Under the 2008-2009

IEP, the Student was to attend Solomon at parental expense and to receive

related services at the expense of the Board. While paying for the related services

herself, the Parent maintained that continuous placement during the pendency of

this litigation. And far from declining the protection of stay-put, the Parent

14
At the time Burlington was decided, the stay-put provision was codified at
20 U.S.C. § 1415(e)(3).

27
actively invoked it. At the June 2009 IEP Team meeting, she repeatedly

demanded that the Board continue to provide stay-put placement:

You’re proposing a change of placement. There was an IEP from
East Lyme, saying he’s here. Now you’re changing the placement. It
violates Stay Put. He’s supposed to stay here until we have a
proceeding. . . .

What I’m saying is you’re violating my Stay Put rights . . .

How is this not in violation?

Tr. of Planning and Placement Team Meeting, at 6:14-17, 10:4-5, 11:1-2 (June 17,

2009).

For the foregoing reasons, we affirm the district court’s grant of summary

judgment in favor of the Parent on the stay-put claim.

B

We turn now to the issue of relief. In any action brought under the IDEA,

the court “shall grant such relief as the court determines is appropriate.” 20

U.S.C. § 1415(i)(2)(C)(iii). The only restriction is that “the relief is to be

appropriate in light of the purpose of the Act.” Burlington, 471 U.S. at 369

(internal quotation marks omitted). “[E]quitable considerations are relevant in

fashioning relief and the court enjoys broad discretion in so doing.” Carter, 510

28
U.S. at 16 (citation and internal quotation marks omitted). An award of damages

is not available, Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288

F.3d 478, 486 (2d Cir. 2002); but a court may award various forms of retroactive

and prospective equitable relief, including reimbursement of tuition,

compensatory education, and other declaratory and injunctive remedies,

Burlington, 471 U.S. at 369; Polera, 288 F.3d at 486.

The district court ordered the Board to reimburse the Parent for her out-of-

pocket expenses on related services incurred since June 17, 2009, when the parties

reached an impasse about the Student’s placement. Both parties contest this

relief.

1

Some of the competing arguments merit little discussion.

The Board argues that the Parent is entitled to reimbursement for only 2.5

hours of speech therapy per week, not 3 hours per week, as specified in the

February 2009 amendment to the 2008-2009 IEP. That position is meritless. For

the reasons discussed above, the February 2009 amendment controls, even if the

parties intended it to be temporary.

29
 The Parent argues that she should be reimbursed for the “extended school

year” services that she obtained in the summertime. But the amended 2008-2009

IEP makes no mention of such services. The Parent argues that they should be

extrapolated from the term-time services in the 2008-2009 IEP or from the

summertime services set forth in the IEP for 2007-2008. We disagree. The 2008-

2009 IEP left the sections for summertime services blank; and the 2007-2008 IEP

was not the one most recently implemented or last agreed upon.

The Board argues that the Parent was required to administratively exhaust

her stay-put claim. The Board is wrong: “an action alleging violation of the

stay-put provision falls within one, if not more, of the enumerated exceptions to”

the IDEA’s exhaustion requirement. Murphy v. Arlington Cent. Sch. Dist. Bd. of

Educ., 297 F.3d 195, 199 (2d Cir. 2002). Since the purpose of the stay-put

provision is to keep the child in an existing placement until all proceedings--

administrative and judicial--have run their course, there is no evident reason why

administrative proceedings should have to be recommenced to that end. Id.

Applying the exhaustion requirement to stay-put claims would create a loop of

marathon proceedings, since each new round of administrative proceedings

30
would itself be subject to a fresh round of judicial review. See 20 U.S.C. § 1415(i)(2).

2

The Board and the Parent each raise one meritorious objection to the

district court’s award of relief.

* * *

The district court held that the stay-put obligation was triggered on June

17, 2009, when the parties reached an impasse. The Board argues that any such

obligation was triggered when the Parent initiated administrative due process

proceedings on April 27, 2010.

The plain language of the stay-put provision supports the Board’s position.

The provision governs the obligations of parties during “the pendency of any

proceedings conducted pursuant to this section,” 20 U.S.C. § 1415(j) (emphases

added); and the word “proceeding” is used in § 1415 exclusively to describe

administrative due process proceedings and judicial actions, see 20 U.S.C.

§ 1415(i). This reading of the statute is reinforced by the implementing

regulation. 34 C.F.R. § 300.518 (“[D]uring the pendency of any administrative or

judicial proceeding regarding a due process complaint notice requesting a due

process hearing under § 300.507, unless the State or local agency and the parents

31
of the child agree otherwise, the child involved in the complaint must remain in

his or her current educational placement.”).

The district court appears to have followed our summary order in A.S. ex

rel. P.B.S. v. Bd. of Educ. for Town of W. Hartford, 47 F. App’x 615, 616 n.2 (2d

Cir. 2002) (summary order) (“Under the IDEA, a stay put is a procedural right

that is activated as soon as the [IEP Team] reaches an impasse.” (internal

quotation marks omitted)). A.S., which is not precedential, is also

distinguishable. The plaintiff filed a due process complaint as soon as the parties

reached their impasse, so the filing coincided with the impasse. Id. at 616. Here,

the Parent filed her due process complaint almost a full year after the impasse

was reached. In any event, the statute is clear that the Board’s obligation to

provide stay-put services was not triggered until the Parent’s administrative

complaint was filed.

* * *

The Parent argues that the district court abused its discretion by limiting

the award of relief to her out-of-pocket expenses instead of awarding the full

value of services that the Board should have provided. We agree that in this case

32
the award of less than the full value of stay-put services was inappropriate, given

the purposes of the IDEA. Burlington, 471 U.S. at 369.

The award in this case was calculated in a way that would undermine the

stay-put provision by giving the agency an incentive to ignore the stay-put

obligation. If it turns out in the end that the parent was able to finance all the

services, the agency would simply pay what it should have paid in the first place.

Cf. Burlington, 471 U.S. at 370-71 (“Reimbursement merely requires the Town to

belatedly pay expenses that it should have paid all along and would have borne

in the first instance.”). On the other hand, if the parent cannot afford to finance

all or any services, the agency gets to pay less than what it should have, or

nothing--and, more important, less than what was needed for the child’s benefit.

Moreover, such an arrangement would make the stay-put obligation contingent

on the means of a child’s family--a legally irrelevant variable. Cf. E.M. v. New

York City Dep’t of Educ., 758 F.3d 442, 452 (2d Cir. 2014) (“The IDEA promises a

free appropriate education to disabled children without regard to their families’

financial status.”); Miener By & Through Miener v. State of Mo., 800 F.2d 749, 753

(8th Cir. 1986) (“We are confident that Congress did not intend the child’s

33
entitlement to a free education to turn upon her parent’s ability to ‘front’ its

costs.”).

Reimbursement is a remedy limited to what has been paid. And an award

of damages to make up the difference is impermissible under the IDEA. Polera,

288 F.3d at 486. There is, however, another remedy: compensatory education.

“Compensatory education is prospective equitable relief, requiring a school

district to fund education beyond the expiration of a child’s eligibility as a

remedy for any earlier deprivations in the child’s education.”15 Somoza v. N.Y.C.

Dep’t of Educ., 538 F.3d 106, 109 n.2 (2d Cir. 2008) (internal quotation marks

omitted); see also P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Ed., 546 F.3d 111,

123 (2d Cir. 2008).

Although we have typically endorsed compensatory education as a

remedy for substantive FAPE claims, see, e.g., P., 546 F.3d at 123, there is no

15
Because the obligations imposed by the IDEA generally terminate when a
child reaches the age of 21, compensatory education “is unavailable to a claimant
over the age of twenty-one in the absence of gross procedural violations.” Garro
v. State of Conn., 23 F.3d 734, 737 (2d Cir. 1994) (internal quotation marks
omitted); see also Mrs. C. v. Wheaton, 916 F.2d 69, 75 (2d Cir. 1990). We need not
decide whether the Board’s failure to maintain a stay-put placement was a
“gross” procedural violation, because the Student (who was nine at the start of
the 2009-2010 school year) will not turn 21 for many years.

34
reason why the remedy should not be equally available for stay-put violations.

We therefore conclude that when an educational agency has violated the stay-put

provision, compensatory education may--and generally should--be awarded to

make up for any appreciable difference between the full value of stay-put

services owed and the (reimbursable) services the parent actually obtained. In

this case, the Board owes reimbursement in the amount the Parent expended for

services the Board was required to provide, plus compensatory education to fill

the gap of required services that the Parent did not fund.

In light of the foregoing, we vacate the district court’s award of relief as to

the Parent’s stay-put claim. On remand, the district court should: calculate the

total value of the related services specified in the amended 2008-2009 IEP for the

period from April 27, 2010,16 to the (as yet undetermined) date of the new final

judgment, see 20 U.S.C. § 1415(j); order the Board to reimburse the Parent for out-

of-pocket expenses incurred on covered services during that period; and direct

the Board to provide (with the Parent’s requisite participation) the remainder of

16
It would be inequitable to exclude from reimbursement the services that
were obtained between September 23, 2010, when the initial administrative
complaint was withdrawn without prejudice, and September 30, 2010, when it
was refiled. That brief delay--which was necessitated by the Parent’s need to
obtain new counsel--did not prejudice the Board.

35
the total value as compensatory education to commence at the conclusion of

litigation.

We leave the mechanics of structuring the compensatory education award

to the district court’s sound equitable discretion, although the court may wish to

consult remedies that we have endorsed in the past. See Streck v. Bd. of Educ. of

the E. Greenbush Cent. Sch. Dist., 408 F. App’x 411, 415 (2d Cir. 2010) (summary

order). Given the possibility that the Student’s educational needs have changed

since the commencement of proceedings, we leave to the district court whether

compensatory education should be limited to the kinds of services17 specified in

the amended 2008-2009 IEP, or encompass analogous educational services

appropriate to the Student’s current needs. See Reid ex rel. Reid v. D.C., 401 F.3d

516, 524 (D.C. Cir. 2005) (“[T]he ultimate award [of compensatory education]

must be reasonably calculated to provide the educational benefits that likely

would have accrued from special education services the school district should

have supplied in the first place.”). Whatever its precise form, the remedy must

17
“The IDEA’s pendency provision does not entitle a disabled child to keep
receiving services from the exact same service providers while his proceedings
are pending; instead, it only entitles the child to receive the same general type of
educational program.” T.M., 752 F.3d at 171.

36
be “appropriate in light of the purpose of the Act.” Burlington, 471 U.S. at 369

(internal quotation marks omitted).

CONCLUSION

We have considered the parties’ remaining arguments and conclude that

they are without merit. For the foregoing reasons, the judgment is affirmed in

part and vacated in part. The case is remanded to the district court for further

proceedings consistent with this opinion.

37