16-3491-cv
D.B. v. Ithaca City Sch. Dist.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 23rd day of May, two thousand seventeen.
PRESENT: REENA RAGGI,
SUSAN L. CARNEY,
Circuit Judges,
LEWIS A. KAPLAN,
District Judge.*
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D.B., individually and on behalf of L.B., a child with a
disability,
Plaintiff-Appellant,
v. No. 16-3491-cv
ITHACA CITY SCHOOL DISTRICT,
Defendant-Appellee.†
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APPEARING FOR APPELLANT: EDWARD E. KOPKO, Edward E. Kopko,
Lawyer, P.C., Ithaca, New York.
APPEARING FOR APPELLEE: KATE I. REID, General Counsel (Jonathan B.
Fellows, Bond, Schoeneck & King, PLLC,
*
Judge Lewis A. Kaplan, of the United States District Court for the Southern District of
New York, sitting by designation.
†
The Clerk of Court is directed to amend the caption as set forth above.
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Syracuse, New York, on the brief), Ithaca City
School District, Ithaca, New York.
Appeal from a judgment of the United States District Court for the Northern
District of New York (David N. Hurd, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment entered on September 14, 2016, is AFFIRMED.
Plaintiff D.B., suing on behalf of herself and as the adoptive mother of L.B., a
now-eighteen-year-old learning-disabled child, appeals from an award of summary
judgment in favor of defendant Ithaca City School District (“School District”) on D.B.’s
claim for reimbursement of private educational expenses under the Individuals with
Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400 et seq. We review an award of
summary judgment de novo, although, in the IDEA context, we do so mindful that “the
responsibility for determining whether a challenged [Individualized Education Plan
(“IEP”)] will provide a child with [a free and appropriate public education (“FAPE”)]
rests in the first instance with administrative hearing and review officers.” M.W. ex rel.
S.W. v. N.Y.C. Dep’t of Educ., 725 F.3d 131, 138 (2d Cir. 2013) (internal quotation marks
omitted). In so doing, we assume the parties’ familiarity with the facts and record of
prior proceedings, which we reference only as necessary to explain our decision to
affirm.
When a parent unilaterally enrolls a disabled child in a private school, we apply
the “three-pronged Burlington/Carter [t]est to determine eligibility for reimbursement,
which looks to (1) whether the school district’s proposed plan will provide the child with
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a [FAPE]; (2) whether the parents’ private placement is appropriate to the child’s needs;
and (3) a consideration of the equities.” C.F. ex rel. R.F. v. N.Y.C. Dep’t of Educ., 746
F.3d 68, 73 (2d Cir. 2014). “At the first step, courts examine whether there were
procedural violations of the IDEA, namely, whether the state has complied with the
procedures set forth in the IDEA.” R.E. ex rel. J.E. v. N.Y.C. Dep’t of Educ., 694 F.3d
167, 190 (2d Cir. 2012) (internal quotation marks omitted). “Courts then examine
whether the IEP was substantively adequate, namely, whether it was reasonably
calculated to enable the child to receive educational benefit[s].” Id. (internal quotation
marks omitted). “Substantive inadequacy automatically entitles the parent[] to
reimbursement,” id., but procedural violations do so only if they “impeded the child’s
right to a [FAPE],” “significantly impeded the parents’ opportunity to participate in the
decisionmaking process,” or “caused a deprivation of educational benefits,” id. (quoting
20 U.S.C. § 1415(f)(3)(E)(ii)). “That is, parents must articulate how a procedural
violation resulted in the IEP’s substantive inadequacy or affected the decision-making
process.” M.W. ex rel. S.W. v. N.Y.C. Dep’t of Educ., 725 F.3d at 139.
1. Procedural Adequacy
The State Review Officer (“SRO”) here found a procedural violation insofar as
L.B. failed to receive updated testing in various areas as requested by the School
District’s Committee on Special Education (“CSE”) in August 2012. Nevertheless, the
SRO found that “the evidence in the hearing record does not provide any basis upon
which to conclude that this procedural violation rose to the level of a failure to offer the
student a FAPE for the 2012-13 school year” because the CSE had sufficient information
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to develop an IEP based on psychological evaluations of L.B. from March and August
2012 and an August 2012 report submitted by a private consultant engaged by D.B. J.A.
416. On appeal, D.B. challenges this conclusion, arguing that information before the
CSE when it developed L.B.’s 2012–13 IEP did “not address LB’s [non-verbal learning
disability (“NVLD”)] whatsoever” and reflected “general ignorance of this disability
admitted to by [School District] personnel.” Appellant’s Br. 18–19.
We agree with the SRO that the identified testing failure did not deny L.B. a
FAPE because the CSE had access to information in the areas for which further testing
was requested and that information consistently identified the same deficiencies and
recommended similar corrective techniques, which were included in the IEP.
First, the CSE had before it L.B.’s March 2012 psychological evaluation
identifying low perceptual reasoning and low-average math problem-solving scores,
which it concluded were “consistent with many characteristics of a[n] [NVLD].” J.A. 12.
That evaluation also observed that L.B. suffered from anxiety in new situations and when
learning new subjects and that her school performance improved “[o]nce rapport and trust
had been established.” Id. Its resulting recommendations—including “[k]eep[ing] the
environment predictable and familiar,” “break[ing] larger tasks into smaller chunks with
specific deadlines,” “allow[ing] [L.B.] to verbalize her thought/problem solving process”
and to use a word processor for written responses, id. at 13—were tailored to treat the
NVLD difficulties identified in the evaluation.
In August 2012, at D.B.’s request, a School District psychologist conducted a new
evaluation of L.B. for the upcoming school year. That evaluation identified similar
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deficiencies in the child’s visual perceptual reasoning, low-average scores in math
problem solving, difficulty maintaining focus and attending to detail, and task-related
anxiety. It recommended, inter alia, “re-teaching of new math concepts,” “support[ing]
[L.B. by] breaking multistep problems and tasks into smaller chunks,” use of a computer
where possible, and potentially individual counseling. Id. at 25–26. D.B. faults this
August 2012 evaluation for “conclud[ing] that LB did not have an NVLD.” Appellant’s
Br. 4. While the hearing record shows that the examining psychologist was dubious of
the utility of an NVLD classification, this skepticism is of no moment because, as the
psychologist testified, “whether or not I believe that the [NVLD] exists in and of itself is
irrelevant to [L.B.] and her individual needs,” J.A. 237, and the record indicates that
those needs were appropriately identified and addressed by the August 2012 IEP.
Finally, the CSE reviewed an August 21, 2012 report submitted by D.B.’s
psychological consultant, who concluded, inter alia, that L.B. “has a diagnosed non-
verbal learning disability,” id. at 43, which resulted in poorly developed perceptual
reasoning skills, difficulty “sustaining attention to written and/or visual material,” as well
as “depression and anxiety,” id. at 45. The consultant recommended a “nurturing
environment that is structured, supervised, predictable, and consistent,” a “[s]mall
classroom setting with low teacher/student ratio,” “[f]requent one-on-on interactions with
teachers who give direct, sequential chunks of information, repeat instructions, . . .
frequent breaks to alleviate cognitive fatigue, shorter homework assignments, and more
time on tests” and are trained in cuing in on triggers and redirecting thinking patterns, and
use of assistive technology. Id. at 59.
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Relying on the totality of these evaluations, the CSE concluded that “L.B.’s
education program should be provided at her home school,” rather than at the residential
private school recommended by D.B. and her consultant.1 Id. at 32. The resulting IEP
recognized a need for “additional support in the areas of writing and math,” id. at 83,
identifying L.B.’s poor perceptual reasoning and attention to detail and tendency to give
up on challenging tasks. It recommended “direct support within the classroom in order to
provide modification of materials and additional explanations and modeling” and “pre-
teaching, re-teaching and supplemental instruction provided through resource room
support.” Id. Specifically, it called for a 5:1 student-to-teacher resource room program,
daily direct consultant teacher services in math class, and weekly counseling, as well as
“[c]lear and specific presentation of information” through, inter alia, “[c]hunk[ing]
information into manageable pieces,” “opportunities to . . . ‘talk through’ assignment[s]
before completing,” and a “[f]amiliar and predictable routine.”2 Id. at 86–87. The IEP
also proposed providing L.B. access to a computer and a portable word processor.
1
The CSE actually met twice in August 2012. It issued the IEP at its first meeting on
August 21, the same day on which D.B. submitted her private consultant’s report. The
CSE then met again on August 28 to consider the report, ultimately deciding to stand by
its original IEP.
2
State regulations define a “resource room program” as “a special education program for
a student with a disability registered in either a special class or regular class who is in
need of specialized supplementary instruction in an individual or small group setting for a
portion of the school day.” N.Y. Comp. Codes R. & Regs., tit. 8, § 200.1(rr). Direct
consultant teacher services are “specially designed individualized or group instruction
provided by a certified special education teacher . . . , to a student with a disability to aid
such student to benefit from the student’s regular education classes.” Id. § 200.1(m)(1).
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The record thus clearly supports the SRO’s conclusion that the March and August
2012 evaluations and the report of D.B.’s psychological consultant provided the CSE
with sufficient information—particularly in the areas of social/emotional, attention, and
academic/achievement for which updated testing was requested—to generate a 2012–13
IEP that would provide L.B. with a FAPE. In addition, and as the SRO observed,
although a further occupational therapy evaluation was not conducted to consider
potential benefits of assistive technology, the IEP addressed this need by recommending
that L.B. have access to a computer and a word processor to aid in completing written
assignments. See M.W. ex rel. S.W. v. N.Y.C. Dep’t of Educ., 725 F.3d at 140 (holding
that procedural violation “does not render an IEP legally inadequate . . . so long as the
IEP adequately identifies [deficiency that would have been subject of additional testing]
and implements strategies to address [it]”); R.E. ex rel. J.E. v. N.Y.C. Dep’t of Educ., 694
F.3d at 193 (holding that procedural violation did not deprive child of FAPE where CSE
nevertheless reviewed documentation as to child’s behaviors and IEP included specific
strategies to address behaviors).
Finally, D.B. has failed to suggest, much less show, how updated testing might
have altered the CSE’s placement recommendation or the IEP. Because the record
supports the SRO’s conclusion that the CSE’s IEP would have provided L.B. with a
FAPE within the School District, we defer to its rejection of D.B.’s procedural challenge.
Thus, we are not required to consider the appropriateness of the parent’s preferred
residential placement.
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2. Substantive Adequacy
D.B. claims that the School District cannot provide L.B. with a FAPE because its
employees lack training and experience handling NVLDs. The SRO deemed this
argument waived, but, even assuming it were not, we conclude that it is defeated by the
record.3
In assessing substantive adequacy, we are mindful of IDEA’s mandate for
“personalized instruction with sufficient support services to permit the child to benefit
educationally from that instruction.” Board of Educ. v. Rowley, 458 U.S. 176, 203
(1982); accord Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017)
(holding that “school must offer an IEP reasonably calculated to enable a child to make
progress appropriate in light of the child’s circumstances” and that “question is whether
the IEP is reasonable, not whether the court regards it as ideal” (emphasis in original)).
IDEA does not require a school district to furnish “every special service necessary to
maximize each handicapped child’s potential.” Board of Educ. v. Rowley, 458 U.S. at
199; see also Bryant v. N.Y. State Educ. Dep’t, 692 F.3d 202, 215 (2d Cir. 2012)
(recognizing that IDEA ensures “appropriate education, not one that provides everything
that might be thought desirable by loving parents” (internal quotation marks omitted)).
We will not “substitute our own notions of sound educational policy for those of the
school authorities under review”; rather, we “must defer to the administrative decision
3
The School District argues that D.B.’s contention is premised on information learned at
the due process hearing following her rejection of the IEP and, thus, relies on
impermissible retrospective testimony. We need not consider this argument, however,
because we reject the substantive challenge even considering the testimony in question.
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particularly where the state officer’s review has been thorough and careful.” M.W. ex rel.
S.W. v. N.Y.C. Dep’t of Educ., 725 F.3d at 138–39 (alteration and internal quotation
marks omitted).
After an independent review of the record, we reach the same conclusion as the
district court and the SRO: L.B.’s IEP was sufficiently tailored to her needs to ensure
meaningful progress. The IEP identified L.B.’s difficulties with non-verbal learning;
math problem solving; maintaining attention, particularly to challenging new material;
and anxiety. It proposed, as the district court observed, “special education and related
services that were specifically designed to address her non-verbal deficits,” J.A. 460,
including a resource room program involving a low student-to-teacher ratio and led by
teachers trained in redirection and cuing methods, daily direct consultant teacher services
in math, and individualized counseling.
Indeed, the IEP’s recommendations align comfortably with those proffered by
D.B.’s own consultant, who was concededly familiar with NVLDs. D.B.’s contention
that the consultant “testified that teachers who were ignorant of NVLDs are incapable of
providing adequate and appropriate instruction to address the needs of someone suffering
from that disability,” Appellant’s Br. 15, is misleading. The consultant actually
vacillated considerably on this point, first stating that the School District’s teachers
“could certainly implement” the IEP, J.A. 269, before confusingly stating—after
concluding that L.B. had an NVLD—that “again, the special education teacher could
certainly implement what’s here, but . . . it doesn’t mean that it’s being implemented for a
child with [an NVLD],” id. at 271.
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While the foregoing is sufficient to establish the IEP’s substantive adequacy, the
hearing record here also supports the conclusion that an NVLD is not formally
recognized as a psychiatric diagnosis by medical literature or by New York State.
Accordingly, a lack of training in that specific designation does not compel a finding that
the School District’s employees did not understand the nature of L.B.’s disability or the
extent of her needs, or that they were unable to provide the accommodations necessary to
ensure L.B. a FAPE. Moreover, D.B. never requested that the School District
specifically train its teachers in NVLDs, which it could have done if it had deemed it
necessary to implement the IEP.
In sum, because the record shows that L.B.’s 2012–13 IEP identified and
responded to the child’s learning disability, we cannot deem it substantively inadequate.
See M.W. ex rel. S.W. v. N.Y.C. Dep’t of Educ., 725 F.3d at 140 (“[W]hether an IEP
adequately addresses a disabled student’s behaviors and whether strategies for dealing
with those behaviors are appropriate are precisely the type of issues upon which the
IDEA requires deference to the expertise of administrative officers.”). Insofar as D.B.
argues that the School District would have been unable to carry out the IEP, that
contention is purely speculative and thus barred by precedent. See M.O. v. N.Y.C. Dep’t
of Educ., 793 F.3d 236, 243 (2d Cir. 2015) (“[C]hallenges to a school district’s proposed
placement school must be evaluated prospectively (i.e., at the time of the parents’
placement decision) and cannot be based on mere speculation.” (internal quotation marks
omitted)).
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3. Conclusion
We have considered D.B.’s remaining arguments and conclude that they are
without merit. Accordingly, the judgment of the district court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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