16‐3652‐cv
N.B., et al. v. N.Y.C. Depʹt of Educ.
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 COURTʹS 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
ʺSUMMARY ORDERʺ). 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 10th day of October, two thousand seventeen.
PRESENT: DENNY CHIN,
CHRISTOPHER F. DRONEY,
Circuit Judges,
JANE A. RESTANI,
Judge.*
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N.B. and C.B., individually and on behalf of
H.B.,
Plaintiffs‐Appellants,
v. 16‐3652‐cv
NEW YORK CITY DEPARTMENT OF
EDUCATION,
Defendant‐Appellee.
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* Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation.
FOR PLAINTIFFS‐APPELLANTS: STEVEN GOLDSTEIN (H. Jeffrey Marcus, on
the brief), Law Offices of H. Jeffrey Marcus,
P.C., Williamsville, New York.
FOR DEFENDANT‐APPELLEE: DANIEL MATZA‐BROWN (Fay Ng, on the
brief), for Zachary W. Carter, Corporation
Counsel of the City of New York, New York,
New York.
Appeal from the United States District Court for the Southern District of
New York (Torres, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiffs‐appellants N.B. and C.B., the parents of H.B., a child diagnosed
with autism (the ʺParentsʺ), appeal a September 30, 2016 judgment of the district court
entered pursuant to a September 29, 2016 opinion and order that granted summary
judgment in favor of defendant‐appellee the New York City Department of Education
(the ʺDepartmentʺ), denying reimbursement for H.B.ʹs private school tuition under the
Individuals with Disabilities Education Act (ʺIDEAʺ), 20 U.S.C. § 1400 et seq. The
question presented is whether the Department offered H.B. a ʺfree appropriate public
educationʺ (ʺFAPEʺ) through an Individualized Education Program (ʺIEPʺ), as
mandated by the IDEA. Id. § 1414(d).
It is undisputed that the IDEA required the Department to provide H.B.
with a FAPE and that pursuant to this obligation it prepared an IEP for the 2012‐13
school year in consultation with its own experts, the Parents, and H.B.ʹs private school
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teachers. Unsatisfied with that IEP, the Parents re‐enrolled H.B. in a private school that
she had attended the previous year, one that specializes in educating children with
autism. The Parents then commenced a state administrative proceeding before an
Impartial Hearing Officer (ʺIHOʺ), seeking tuition reimbursement pursuant to 20 U.S.C.
§ 1412(a)(10)(C).
The IHO held a hearing over four days between December 21, 2012 to
April 10, 2013. On January 23, 2015, the IHO found that any procedural defects in
developing the IEP were de minimis, but that H.B. was denied a FAPE because the
Department had failed to offer the IEP into evidence at the hearing. The IHO
nonetheless found that the Parents lacked standing to seek tuition reimbursement
because their contract with the private school was illusory.
Both the Department and the Parents appealed the IHOʹs ruling to a State
Review Officer (ʺSROʺ). On February 26, 2015, the SRO reversed the IHO, finding that
the IEP was properly in evidence and the Parents had standing to seek tuition
reimbursement. As to the merits of the dispute, the SRO determined that the IEP was
sufficient and offered H.B. a FAPE. The SRO concluded, inter alia, that (1) none of the
procedural defects the Parents identified had impeded their ability to participate in
developing the IEP, (2) based on the information available at the time it was developed,
the IEP adequately reflected H.B.ʹs levels of performance, her sensory needs, and the
fact of her food allergies, (3) the IEP contained sufficient annual goals, (4) the proposed
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classroom student to educator ratio was reasonable and could implement the IEP, and
(5) the Parentʹs rejection of the assigned school site was based on impermissible
speculation about the schoolʹs ability to implement the IEP. The SRO therefore
concluded that the Department had offered H.B. a FAPE for the 2012‐13 school year and
no tuition reimbursement was required.
On June 24, 2015, the Parents filed a complaint in the district court,
alleging that H.B. was denied a FAPE. The parties filed motions for summary judgment
in December 2015 and January 2016. On September 29, 2016, the district court granted
summary judgment in favor of the Department. The Parents timely appealed.
We review the district courtʹs grant of summary judgment de novo.
Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 385 (2d Cir. 2014). In
reviewing the state administrative proceeding under the IDEA, however, we ʺengage in
an independent, but circumscribed, review, ʹmore critical than clear‐error review but
well short of complete de novo review.ʹʺ T.K. v. N.Y. C. Depʹt of Educ., 810 F.3d 869, 875
(2d Cir. 2016) (quoting C.F. ex rel R.F. v. N.Y.C. Depʹt of Educ., 746 F.3d 68, 77 (2d Cir.
2014)). Factual issues are decided based on the preponderance of the evidence, but state
administrative proceedings must be given ʺdue weight.ʺ Bd. of Educ. of Hendrick Hudson
Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 206 (1982); see also 20 U.S.C.
§ 1415(i)(2)(C)(iii). Reviewing courts ʺmay not ʹsubstitute their own notions of sound
educational policy for those of the school authorities which they review.ʹʺ T.Y. ex rel.
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T.Y. v. N.Y.C. Depʹt of Educ., 584 F.3d 412, 417 (2d Cir. 2009) (quoting Rowley, 458 U.S. at
206). When as here, ʺan IHO and SRO reach conflicting conclusions, ʹ[w]e defer to the
final decision of the state authorities,ʹ that is, the SROʹs decision.ʺ R.E. v. N.Y.C. Depʹt of
Educ., 694 F.3d 167, 189 (2d Cir. 2012) (alteration in original) (quoting A.C. ex rel. M.C. v.
Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 171 (2d Cir. 2009)). Indeed, ʺa
court must defer to the SROʹs decision on matters requiring educational expertise unless
it concludes that the decision was inadequately reasoned, in which case a better‐
reasoned IHO opinion may be considered instead.ʺ Id.; accord M.H. v. N.Y.C. Depʹt of
Educ., 685 F.3d 217, 246 (2d Cir. 2012) (noting that it is appropriate to consider an IHOʹs
decision ʺwhere the SRO rejects a more thorough and carefully considered decision of
an IHOʺ). When seeking to overturn an SROʹs decision, the Parents bear the burden of
demonstrating that the decision was insufficiently reasoned or supported. M.H., 685
F.3d at 225 n.3.
The IDEA was enacted ʺto ensure that all children with disabilities have
available to them a free appropriate public education that emphasizes special education
and related services designed to meet their unique needs.ʺ 20 U.S.C. § 1400(d)(1)(A).
The ʺstatute guarantees . . . an appropriate education, not one that provides everything
that might be thought desirable by loving parents.ʺ Walczak v. Fla. Union Free Sch. Dist.,
142 F.3d 119, 132 (2d Cir. 1998) (citation and internal quotation marks omitted). A
school district meets its obligations to provide a FAPE by creating an IEP that is
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developed in compliance with the IDEAʹs procedural and substantive requirements.
See Rowley, 458 U.S. at 206‐07. Accordingly, our review of the adequacy of an IEP
proceeds in two steps. ʺFirst, we examine whether the state has complied with the
procedures set forth in the IDEAʺ and applicable regulations. T.P. ex rel. S.P. v.
Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 (2d Cir. 2009) (per curiam). Second,
we consider whether, substantively, the IEP is ʺreasonably calculated to enable a child
to make progress appropriate in light of the childʹs circumstances.ʺ Endrew F. ex rel.
Joseph F. v. Douglas Cty. Sch. Dist. RE‐1, 137 S. Ct. 988, 999 (2017). As to this latter
requirement, the IEP need not bring the child to grade‐level achievement, but it must
aspire to provide more than de minimis educational progress. Id. at 1000‐01.
On appeal, the Parents raise no procedural objections and instead
challenge the SROʹs substantive conclusion that H.B. was offered a FAPE. The Parents
principally argue the SROʹs decision was insufficiently reasoned or supported for the
following reasons: (1) the IEP was inappropriate because it did not expressly prescribe
the method of instruction or goals established at H.B.ʹs private school (ʺDIR/Floortimeʺ)
and (2) the student to teacher classroom ratio recommended in the IEP and school
facility designated by the Department were not equipped to implement DIR/Floortime
such that H.B. could make progress toward those goals.1 The Parents further argue the
ʺoverall environmentʺ at the designated school (ʺP369Kʺ) was inappropriate for H.B.
1 The ratio recommended by the Department was ʺ6:1+1,ʺ that is, a ratio of six
students to one teacher and one paraprofessional.
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and inconsistent with the IEP because it would subject her to an environment that
would have been intolerable due to her severe autism and the schoolʹs inability to
provide for her dietary needs. Accordingly, the Parents contend they are entitled to
tuition reimbursement under 20 U.S.C. § 1412(a)(10)(C).
We are not persuaded. To the extent the Parentsʹ challenges concern the
substantive merits of the IEPʹs recommendations and P369Kʹs ability to implement
those recommendations, we must defer to the SROʹs expertise and decision. See R.E.,
694 F.3d at 189. As to the Parentsʹ first argument, we agree with the Parents and the
district court that the IEP implicitly recommended the DIR/Floortime method by
adopting the language and overall goals set by H.B.ʹs private school. We agree,
however, that the SRO reasonably concluded that the IEP goals did not specifically
mandate DIR/Floortime to achieve such goals, and instead reflected commonly used
tenets of special education instruction, regardless of methodology employed. The SRO
reasonably rejected the assertion that DIR/Floortime is the only means of achieving
progress such that the IEPʹs failure to mandate DIR/Floortime amounts to a denial of a
FAPE.
We also defer to the SROʹs conclusion that the student to teacher ratio
adopted by the IEP was sufficient to meet H.B.ʹs needs. Although H.B.ʹs private school
instructors ʺstronglyʺ believed a 8:1+3 student to educator ratio would be ʺmore
appropriateʺ for H.B. than the 6:1+1 ratio suggested by the Department, the record does
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not support the Parentsʹ assertion that the recommended 6:1+1 ratio could not actually
implement the DIR/Floortime method for H.B. at P369K or otherwise provide H.B. with
a different, yet, ʺappropriateʺ education, which is all that is mandated by the IDEA. See
Endrew F., 137 S. Ct. at 999 (noting that the issue is ʺwhether the IEP is reasonable, not
whether the court regards it as idealʺ). To the contrary, the record demonstrates that
the Department selected the 6:1+1 classroom because it was a ʺvery structured,
supported full‐time special education setting . . . that ha[d] been developed by the
Department to work on studentsʹ needs in the areas of academic development, cognitive
development, social and emotional development, language skills . . . , and
functionalized skills development.ʺ C. App. 18. These questions are ʺprecisely the
type[s] of issue[s] upon which the IDEA requires deference to the expertise of the
administrative officers.ʺ G.B. v. N.Y.C. Depʹt of Educ., 145 F. Supp. 3d 230, 250 (S.D.N.Y.
2015) (quoting Grim v. Rhineback Cent. Sch. Dist., 346 F.3d 377, 382 (2d Cir. 2003)).
As to the Parentsʹ last argument, we agree with the SRO that the Parentsʹ
rejection of the designated school, P369K, was based on impermissible speculation
about the schoolʹs overall environment and ability to implement the IEP. The Parents
particularly challenge P369Kʹs large size, noisy environment, and alleged inability to
implement DIR/Floortime or accommodate H.B.ʹs allergies by warming her food or
allowing her to eat in a classroom. Because H.B. never attended P369K, this is a
prospective challenge and requires the Parents to demonstrate the schoolʹs inability to
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provide the services as mandated by the IEP. M.O. v. N.Y.C. Depʹt of Educ., 793 F.3d 236,
245 (2d Cir. 2016).
The specific challenges raised by the Parents are, however, outside the
scope of what the IEP requires. In any event, the record indicates P369K was willing to
make reasonable accommodations for HBʹs allergies, and the IEP adequately detailed
her sensory needs even if the school lacked the ʺpreferredʺ environment or sensory
equipment. The record does not support the Parentʹs assertion that P369K was
incapable of implementing the IEP or that the school would be unable to make
additional accommodations should they prove necessary.
We find no reason to disregard the SROʹs decision that ʺany deficiencies in
the conduct of the May 2012 CSE meeting and the June 2012 IEP do not rise to the level
of a denial of a FAPE, individually or taken as a whole.ʺ App. 11. Therefore, we affirm
the SROʹs ‐‐ and the district courtʹs ‐‐ decision that the Parents are not entitled to
reimbursement of H.B.ʹs private school tuition.
We have reviewed the Parentsʹ remaining arguments and conclude they
are without merit. Accordingly, the judgment of the district court is AFFIRMED.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk
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