D. D-S Ex Rel. B. D-S v. Southold Union Free School District

11-4697 D. D-S, v. Southold Union Free School District 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. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 26th day of December, two thousand twelve. 5 6 PRESENT: 7 ROBERT A. KATZMANN, 8 BARRINGTON D. PARKER, 9 RICHARD C. WESLEY, 10 Circuit Judges. 11 12 13 D. D-S, INDIVIDUALLY AND AS PARENT 14 AND NEXT FRIEND TO B. D-S, A CHILD 15 WITH A DISABILITY, 16 17 Plaintiff-Appellant, 18 19 v. 11-4697 20 21 SOUTHOLD UNION FREE SCHOOL DISTRICT, 22 23 Defendant-Appellee. 24 25 FOR APPELLANT: PHILIP B. ABRAMOWITZ, Law Offices 26 of Andrew K. Cuddy, Auburn, NY. 27 28 FOR APPELLEE: CHRISTOPHER F. VENATOR, 29 Ingerman Smith, LLP, Hauppauge, NY. 30 31 32 1 Appeal from the judgment of the United States District 2 Court for the Eastern District of New York (Seybert, J.). 3 4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 5 AND DECREED that the September 9, 2011 judgment entered in 6 the United States District Court for the Eastern District of 7 New York (Seybert, J.) is AFFIRMED. 8 On January 13, 2009, Plaintiff-Appellant D. D-S filed a 9 complaint seeking tuition reimbursement under the Individuals 10 with Disabilities Education Act (“IDEA”), 20 U.S.C. §1400 et. 11 seq., after Defendant-Appellee Southold Union Free School 12 District failed to offer her daughter, B., a free appropriate 13 public education (“FAPE”) for the 2008-2009 school year. 14 Plaintiff had placed her daughter at Landmark School in 15 Massachusetts. The impartial hearing officer denied 16 reimbursement, and the state review officer affirmed. 17 Plaintiff then commenced a proceeding in the Eastern District 18 of New York challenging the decision. After cross-motions 19 for summary judgment, the district court denied Plaintiff’s 20 motion and affirmed the District’s motion, finding that 21 Landmark was an inappropriate placement. Plaintiff appeals 22 the denial of tuition reimbursement. We assume the parties’ 23 familiarity with the facts, the procedural history of the 24 case, and the issues on appeal. 2 1 Because the District concedes that it did not provide B. 2 with a FAPE for the 2008-2009 school year, we only consider 3 whether “the private schooling obtained by the parents [was] 4 appropriate to the child’s needs.” Cerra v. Pawling Cent. 5 Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). “[C]ourts 6 assessing the propriety of a unilateral placement consider 7 the totality of the circumstances in determining whether that 8 placement reasonably serves a child’s individual needs.” 9 Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006). 10 As the party seeking reimbursement, Plaintiff bears the 11 burden of proving that her unilateral placement was 12 appropriate. See M.S. ex rel. S.S. v. Bd. of Educ., 231 F.3d 13 96, 104 (2d. Cir. 2000). 14 Plaintiff argues that the state agency and district 15 court failed to consider the totality of the circumstances 16 and placed too much emphasis on the restrictiveness of the 17 parental placement. We disagree. Although the agency and 18 district court focused their decision on Landmark’s overly 19 restrictive nature, they also thoroughly reviewed the whole 20 record before denying reimbursement. While it is a well- 21 established concept that parental placements are not subject 22 to the same exacting standards as a public placement, see 23 Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 14-15 24 (1993), the restrictiveness of the school environment 3 1 “remains a consideration that bears upon a parent’s choice of 2 an alternative placement and may by considered by a hearing 3 officer in determining whether the placement was 4 appropriate.” M.S., 231 F.3d at 105. 5 Moreover, Plaintiff has not persuasively argued that the 6 totality of the circumstances made Landmark an appropriate 7 placement. She contends that B.’s academic progress indicates 8 that Landmark was an appropriate placement. However, academic 9 progress alone is not a dispositive indicator of 10 appropriateness. See Gagliardo v. Arlington Cent. Sch. Dist., 11 489 F.3d 105, 115 (2d Cir. 2007). Further, she has presented 12 no evidence that this extremely restrictive residential 13 immersion was appropriate for B.’s educational needs. 14 Plaintiff has not persuaded us that the totality of the 15 circumstances warrants tuition reimbursement in this case. 16 See Frank G., 459 F.3d at 364-65. 17 We have considered plaintiff’s remaining arguments and, 18 after a thorough review of the record, find them to be 19 without merit. Accordingly, we AFFIRM the judgment of the 20 district court. 21 FOR THE COURT: 22 Catherine O’Hagan Wolfe, Clerk 23 24 4