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.
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31
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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
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