17‐2809
J.R., et al. v. N.Y.C. Dep’t 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 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 27th day of September, two thousand
eighteen.
PRESENT: JOHN M. WALKER, JR.,
DENNIS JACOBS,
GUIDO CALABRESI,
Circuit Judges.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
J.R., A MINOR WITH A DISABILITY BY HIS PARENTS
J.R. AND S.F.R., S.F.R., INDIVIDUALLY, J.R.,
INDIVIDUALLY,
Plaintiffs‐Appellants,
‐v.‐ 17‐2809
THE NEW YORK CITY DEPARTMENT OF
EDUCATION,
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Defendant‐Appellee,
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FOR PLAINTIFFS‐APPELLANTS: GEORGE P. ZELMA, Law Offices of
George Zelma; New York, NY.
FOR DEFENDANT‐APPELLEE: DANIEL MATZA‐BROWN,
Assistant Corporation Counsel
(Devin Slack, of Counsel, on the
brief), for Zachary W. Carter,
Corporation Counsel of the City of
New York; New York, NY.
Appeal from a judgment of the United States District Court for the Eastern
District of New York (Townes, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that the judgment of the district court is
AFFIRMED.
Plaintiffs‐Appellants J.R. and S.F.R., on their own behalf and on behalf of
their child, J.R., appeal from a judgment of the United States District Court for
the Eastern District of New York (Townes, J.) dismissing the complaint on
summary judgment. Plaintiffs allege that the New York City Department of
Education (“DOE”) formulated an individualized education plan (“IEP”) that
failed to provide J.R. a free and appropriate public education (“FAPE”), in
violation of the Individuals with Disabilities in Education Act (“IDEA”), 20
U.S.C. § 1400 et seq. The district court affirmed the decision of a state review
officer (“SRO”), which had reversed the decision of an impartial hearing officer
(“IHO”). We assume the parties’ familiarity with the underlying facts, the
procedural history, and the issues presented for review.
The IDEA entitles a child with a disability to a FAPE, including special
education and related services and conforming to an IEP tailored to meet the
student’s needs. 20 U.S.C. § 1401. An IEP must be “reasonably calculated to
enable a child to make progress appropriate in light of the child’s circumstances
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. . . . [T]he question is whether the IEP is reasonable, not whether the court
regards it as ideal.” Endrew F. v. Douglas Cty. Sch. Dist. RE‐1, 137 S. Ct. 988, 999
(2017) (emphasis in original). A parent who believes that the state has failed to
provide the child with a FAPE “may pay for private services and seek
reimbursement from the [public] school district for expenses that [the district]
should have paid all along and would have borne in the first instance had it
developed a proper IEP.” T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d
247, 252 (2d Cir. 2009) (internal quotation marks omitted).
We conduct “a circumscribed de novo review of a district court’s grant of
summary judgment in the IDEA context . . . only seek[ing] to independently
verify that the administrative record supports the district court’s determination
that a student’s IEP was adequate.” M.W. ex rel. S.W. v. N.Y.C. Dep’t of Educ.,
725 F.3d 131, 138 (2d Cir. 2013). Although “[a] federal court reviewing a dispute
over an IEP must base its decision on the preponderance of the evidence,” R.E. v.
N.Y.C. Dep’t of Educ., 694 F.3d 167, 184 (2d Cir. 2012), it must also “give due
weight to the administrative proceedings and remain mindful that the judiciary
generally lacks the specialized knowledge and experience necessary to resolve
persistent and difficult questions of educational policy,” D.F. ex rel. N.F. v.
Ramapo Cent. Sch. Dist., 430 F.3d 595, 598 (2d Cir. 2005). If the IHO and SRO
reach conflicting decisions, we “defer to the SRO’s decision on matters requiring
educational expertise unless [we] conclude[] that the decision was inadequately
reasoned, in which case a better‐reasoned IHO opinion may be considered
instead.” R.E., 694 F.3d at 189.
J.R. is a child with speech and language impairments as classified under
the IDEA. He attended the West End Day School (“WEDS”), a private school, for
three years until the 2012‐13 academic year, when he aged out of the school. In
June 2013, the committee on special education (“CSE”) convened to develop an
IEP for J.R. for the 2013‐14 academic year. Based on J.R.’s academic needs and
goals, the IEP recommended that J.R. be placed in a DOE community school in a
12:1+1 special education class, that is, a class with a maximum of 12 students, one
teacher, and one paraprofessional. The IEP also recommended the following
special services: four 40‐minute sessions per week of speech‐language therapy
(two individual sessions and two small‐group sessions); one 40‐minute
individual counseling session per week; and two 40‐minute small‐group
counseling sessions per week. J.R.’s parents rejected the IEP and enrolled J.R. at
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the Winston School, a private school. This action seeks tuition reimbursement
for the 2013‐14 academic year.
1. Plaintiffs argue that the SRO decision was insufficiently reasoned and
that the IHO decision should be given deference. We are unpersuaded.
The SRO first identified J.R.’s needs and abilities, noting his “considerable
delay in all areas of intellectual functioning” and summarizing the results of
various assessments related to intelligence, memory, mathematics, taking
directions, reading, writing, and expressive language skills. App’x 12‐13
(internal quotation marks omitted). The SRO observed that “the student
required clarification of directions, and assistance with identifying the main idea
of paragraphs, organizing his thoughts on paper, and applying grammar rules.”
App’x 13. At the same time, the SRO noted that the June 2013 IEP (consistent
with a Mount Sinai psychoeducational report and a WEDS progress report)
“described the student as cooperative, respectful, and responsive to support from
peers and adults . . . .” Id.
Based upon these evaluations, the CSE recommended the 12:1+1 placement
and related services. The SRO reviewed the IEP’s recommended strategies to
address J.R.’s “management needs”: “visual prompts and schedules, structured
presentation of tasks, instruction presented in segmented chunks, concise
directions with accompanying visual supports, and skeleton notes to address the
student’s lower processing speed.” App’x 13 (internal quotation marks omitted).
The SRO also explained how the CSE considered both more and less restrictive
placements for J.R.: the IEP rejected a less restrictive option (a classroom with
both a general and special education teacher that serves students with and
without IEPs) because it provided “[in]sufficient academic support”; and it
rejected placement in a school that serves only students with disabilities as
“overly restrictive,” observing that neither J.R.’s parents nor his WEDS teachers
wanted J.R. to attend a specialized school. App’x 13 (internal quotation marks
omitted); see T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 161 (2d
Cir. 2014) (DOE must offer placement in the “least restrictive” appropriate
environment.).
The SRO explained that 12:1+1 classes provide an additional adult to help
“students ‘whose management needs interfere with the instructional process.’”
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App’x 13 (quoting 8 NYCRR 200.6[h][4][i]). The SRO then summarized the
uncontroverted testimony of DOE psychologist Nesson O’Sullivan, who
explained that a 12:1+1 classroom was an appropriate placement because a
paraprofessional would assist J.R. in “accessing” the lessons and activities in the
classroom and address J.R.’s management needs. Id. O’Sullivan testified that a
12:1+1 placement would provide J.R. with a “supervised and coached semi‐
structured social situation,” in which he could “experiment socially and
conversationally, and interpersonally.” Id. (internal quotation marks and
alteration omitted). The SRO also considered O’Sullivan’s explanations as to
why a smaller class placement would be inappropriate: J.R. did not engage in
“significant interfering behaviors,” and the CSE wanted to offer J.R. a “balanced
program” with “opportunities for group academics and also group socializing.”
Id. (internal quotation marks omitted).
Finally, the SRO rejected “the IHO’s sua sponte determination” that the
recommended pullout sessions for individual counseling and tutoring would
exacerbate J.R.’s emotional issues. App’x 14 n. 4. The SRO explained that
Plaintiffs had not raised this objection in the complaint, and that “the IHO
exceeded [her] jurisdiction by addressing the issue.” Id. Moreover, the SRO
concluded that the IHO’s decision was not supported by the evidence: the CSE
participants, including O’Sullivan and J.R.’s teachers, all agreed that pullout
services were appropriate. Id.
The SRO determined that the DOE had sustained its burden to show that
the IEP was reasonably calculated to provide J.R. with a FAPE for the 2013‐14
academic year. As the district court concluded, the evidentiary record supports
the SRO’s decision: there is no dispute that the recommended placement was a
“small, special education program[]” with “intensive, individualized support,”
as the Mount Sinai report recommended, Confidential App’x 174; and O’Sullivan
testified in detail as to how the IEP was tailored to meet J.R.’s individual needs,
testimony that Plaintiffs did not dispute with contradictory testimony or exhibits.
Accordingly, we find no support for Plaintiffs’ argument that the SRO decision
was inadequately reasoned, and we therefore give deference to the SRO decision.
2. Plaintiffs argue that the IEP was not reasonably calculated to confer
educational benefits on J.R. because it provided insufficient 1:1 teacher
reinforcement of the materials taught. Plaintiffs cite the WEDS progress report,
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which stated that “one‐one‐one time with the teacher [was] crucial” for J.R.
Confidential App’x 180. Plaintiffs also contend that the district court
misrepresented the record by omitting the word “teacher[s]” from the Mount
Sinai recommendation that “check‐ins” from teachers would “likely benefit”
J.R.’s verbal comprehension. App’x 47.
However, these documents do not specify the nature, duration, or extent of
teacher support required, or explain why other personnel (e.g., a classroom
paraprofessional or speech therapist) would be unable to offer sufficient support.
The IDEA requires an appropriate education, not one that provides “everything
that might be thought desirable by loving parents.” Walczak v. Fla. Union Free
Sch. Dist., 142 F.3d 119, 132 (2d Cir. 1998) (internal quotation marks omitted).
We have explained that the adequacy of 1:1 support from non‐teacher personnel,
as opposed to 1:1 teacher support, “is precisely the kind of educational policy
judgment to which we owe the state deference if it is supported by sufficient
evidence.” R.E., 694 F.3d at 192. The record shows that the SRO considered all
the evidence, including O’Sullivan’s testimony, and the WEDS and Mount Sinai
reports, and concluded that the IEP provided sufficient individualized support to
enable J.R. to make meaningful and appropriate educational progress. That
policy judgment is entitled to the Court’s deference.
Plaintiffs emphasize that the DOE funded J.R.’s private school tuition at
WEDS until 2012‐13 and the Winston School after 2013‐14, suggesting “no public
program was reasonably calculated to confer educational benefits [J.R.]” Br. of
Appellants 28. But the DOE’s funding of J.R.’s schooling in other years is
irrelevant: “the adequacy vel non of an IEP . . . is to be judged on its own terms.”
M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 67 (2d Cir. 2000). Whether the DOE
offered J.R. an appropriate placement in other years “makes no difference” to the
question of whether the IEP provided a FAPE in 2013‐14. Id.
Finally, Plaintiffs argue that the district court erred in deferring to
O’Sullivan’s testimony. They rely on A.M. v. New York City Department of
Education, 845 F.3d 523 (2d Cir. 2017), in which we rejected reliance on a DOE
psychologist’s recommendation as to appropriate educational methodology
because it was contradicted by the “clear consensus of the substance of the
evaluative materials present at the CSE meeting and the views of [the student’s]
evaluators and educational instructors . . . .” Id. at 545. But here, there is no clear
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consensus that only 1:1 teacher support would allow J.R. to make educational
progress: the only evidence as to the specific amount of individual support J.R.
required came from O’Sullivan; the WEDS report states that J.R. “continues to
need a small learning environment supported by individual attention,” App’x 44
(internal quotation marks omitted); and the Mount Sinai report recommended
“intensive, individualized support as found in small, special education
programs,” App’x 46 (internal quotation marks omitted). Accordingly, the
district court and the SRO did not err in crediting O’Sullivan’s testimony.
The record evidence supports the district court’s determination that the
IEP was reasonably calculated to provide J.R. with a FAPE. We have considered
Plaintiffs’ remaining arguments and conclude that they are without any merit.
The judgment of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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