2nd Cir.: W. a. v. Hendrick Hudson...

17-3248 (L) W.A, M.S. v. Hendrick Hudson Central School District

In the United States Court of Appeals for the Second Circuit August Term, 2018

Argued: February 21, 2019 Decided: June 14, 2019

Docket Nos. 17‐3248, 17‐3313

W.A., M.S., INDIVIDUALLY AND ON BEHALF OF W.E.,

Plaintiffs‐Counter‐Defendants‐Appellees‐Cross‐Appellants,

HENDRICK HUDSON CENTRAL SCHOOL DISTRICT,

Defendant‐Counter‐Claimant‐Appellant‐Cross‐Appellee. †

Appeal from the United States District Court for the Southern District of New York (Karas, J.) No. 14‐3067

Before: KEARSE, JACOBS, HALL, Circuit Judges.

† The Clerk of Court is requested to amend the caption to conform to the above.

Appeal and cross‐appeal from the September 13, 2017 judgment of the United States District Court for the Southern District of New York (Karas, J.) incorporating its November 23, 2016 opinion and order granting in part and denying in part the parties’ cross‐motions for summary judgment and its July 18, 2017 opinion and order granting Defendant’s motion for summary judgment and denying Plaintiffs’ cross‐motion. We hold that the district court properly deferred to the decision of the New York State Review Officer (“SRO”), which concluded that student W.E. was not denied a free and appropriate public education for the eighth‐grade school year and that Northwood School (“Northwood”) was not an appropriate unilateral private school placement for the ninth‐grade school year, and thus affirm the district court’s November 23, 2016 opinion and order to the extent it granted summary judgment to Defendant. Because the district court failed to accord appropriate deference to the SRO’s conclusion that Northwood did not provide W.E. specially designed instruction so as to constitute an appropriate private school placement for the tenth‐grade school year, we reverse the portion of the district court’s November 23, 2016 opinion and order granting summary judgment to Plaintiffs and vacate the award of tuition reimbursement to Plaintiffs for that school year. We also affirm the district court’s July 18, 2017 opinion and order granting Defendant’s motion for summary judgment and vacating the award of compensatory education for the eighth‐grade school year.

AFFIRMED IN PART, REVERSED AND VACATED IN PART.

DANIEL PETIGROW, (David H. Strong, on the brief), Thomas, Drohan, Waxman, Petigrow & Mayle, LLP, Hopewell Junction, NY, for Defendant‐Counter‐Claimant‐Appellant‐Cross‐ Appellee.

WILLIAM A. WALSH, New York, NY (Erica M. Fitzgerald, Littman Krooks LLP, White Plains, NY, on the brief), for Plaintiffs‐Counter‐ Defendants‐Appellees‐Cross‐Appellants.

Catherine Merino Reisman, Ellen Saideman, Selene Almazan‐Altobelli, Towson, MD, for Amicus Curiae Council of Parent Attorneys and Advocates, Inc.

HALL, Circuit Judge:

In the United States District Court for the Southern District of New York

(Karas, J.), W.A. and M.S. (“the Parents”), individually and on behalf of their son,

W.E., commenced two actions against the Hendrick Hudson Central School

District (“the District”) under the Individuals with Disabilities Education Act

(“IDEA”), 20 U.S.C. § 1400 et seq. W.E. attended public school in the District and

began suffering from conventional and abdominal migraines during middle

school, which caused him to miss over 100 days of eighth grade. The District

eventually classified W.E. as suffering from a disability under the IDEA’s “other

health impairment” designation, but the Parents were not satisfied with the

individualized education program the District prepared for W.E.’s upcoming

ninth‐grade school year. The Parents removed W.E. from the District and

enrolled him at Northwood School (“Northwood”), a private school in the

Adirondacks, for his ninth‐ and tenth‐grade school years. While at Northwood

W.E.’s absences from school diminished significantly, and he experienced notable

improvement in his social and academic engagement.

Following administrative hearings before a New York State Impartial

Hearing Officer (“IHO”) and cross‐appeals before a State Review Officer (“SRO”),

the Parents brought these two federal court complaints pursuant to Section 1415

of the IDEA, 20 U.S.C. § 1415(i)(2)(A). In Case One, the Parents alleged that the

District violated W.E.’s right to a free and appropriate public education (“FAPE”)

for his eighth‐ and ninth‐grade school years (2010‐11 and 2011‐12) and challenged

the SRO’s ruling of January 31, 2014, which held that Northwood was not an

appropriate placement for ninth grade. In Case Two, the Parents challenged the

March 18, 2014 decision of the SRO and asserted that the District violated W.E.’s

right to a FAPE for his tenth‐grade school year (2012‐13); they again sought tuition

reimbursement for their unilateral placement of W.E. at Northwood for tenth

grade. The two actions were consolidated by the district court.

On November 26, 2016, the district court affirmed the SRO’s ruling in Case

One in all respects but declined to defer to the SRO in Case Two, holding instead

that Northwood was an appropriate placement during tenth grade and ordering

that the District reimburse the Parents for W.E.’s tuition at Northwood for that

year. See W.A. v. Hendrick Hudson Cent. Sch. Dist., 219 F. Supp. 3d 421 (S.D.N.Y.

2016). It also granted the District’s motion to amend to add a counterclaim

regarding costs awarded by the IHO in Case One. Id. at 484. On July 18, 2017,

the district court granted summary judgment to the District on the counterclaim,

vacating the award of compensatory education in the form of counseling

reimbursement for the eighth‐grade year based on its affirmance of the SRO’s

ruling that W.E. was not denied a FAPE for that academic year. 1 See W.A. v.

Hendrick Hudson Cent. Sch. Dist., No. 14‐CV‐3067 (KMK), 2017 WL 3066888

(S.D.N.Y. July 18, 2017).

The District appeals the portion of the district court’s November 23, 2016

decision and order awarding summary judgment to the Parents and ordering

reimbursement of W.E.’s tuition for his private education at Northwood during

W.E.’s tenth‐grade year. The Parents cross‐appeal the portion of the district

court’s November 23, 2016 opinion and order awarding summary judgment to the

District and holding that the District did not violate its “Child Find” obligation

1 Under the IDEA, “compensatory education is an available option . . . to make up for denial of a free and appropriate public education.” P. ex rel. Mr. and Mrs. P. v. Newington Bd. of Ed., 546 F.3d 111, 123 (2d Cir. 2008).

under the IDEA2 and thus did not deny W.E. a FAPE for the eighth‐grade year in

accord with its statutory obligations, and further holding that Northwood was not

an appropriate placement for W.E.’s ninth‐grade school year so as to entitle the

Parents to tuition reimbursement for W.E.’s private education during ninth grade.

The Parents also cross‐appeal the district court’s July 18, 2017 opinion and order

awarding summary judgment to the District and vacating the award of

compensatory education for the eighth‐grade school year.

Because we hold that the district court properly deferred to the SRO’s

conclusions regarding the timeframe during which the District’s Child Find

obligation was triggered and its ruling that Northwood failed to provide

meaningful counseling or specially designed instruction for W.E.’s ninth‐grade

academic year, we affirm the district court’s November 23, 2016 opinion and order

as to Case One. However, because the district court did not defer to the similarly

well‐reasoned opinion of the SRO which held that Northwood failed to provide

specially designed instruction for the tenth‐grade academic year in spite of W.E.’s

progress in the private school placement, we reverse the district court’s November

2 The IDEA’s “Child Find” obligation is explained in the context of our discussion of the statutory framework, see infra, slip op. pp. 7–8.

23, 2016 opinion and order with respect to Case Two and vacate the award of

tuition reimbursement for the tenth‐grade academic year. We affirm the district

court’s July 18, 2017 opinion and order granting the District’s motion for summary

judgment and vacating the award of compensatory education for the eighth‐grade

school year.

BACKGROUND

I. Statutory Framework

This case arises under the IDEA, 20 U.S.C. § 1400 et seq. The IDEA was

designed, inter alia, to protect the rights of children with disabilities as well as the

rights of their parents and “to ensure that all children with disabilities have

available to them a free appropriate public education [“FAPE”] that emphasizes

special education and related services designed to meet their unique needs and

prepare them for further education, employment, and independent living.” Id. §

1400(d)(1)(A). The IDEA enforces a “Child Find” obligation which “requires

each State to have policies and procedures to ensure that all children with

disabilities are identified and evaluated for special education and related

services.” Mr. P v. W. Hartford Bd. of Educ., 885 F.3d 735, 749 (2d Cir.), cert. denied,

139 S. Ct. 322 (2018). A school district must conduct an evaluation of a child

suspected of suffering a disability “within a reasonable time” after it receives

“notice of a likely disability.” Id. at 750.

The IDEA also requires that school districts create an individualized

education program (“IEP”) for each qualifying child. See R.E. v. N.Y.C. Dep’t of

Educ., 694 F.3d 167, 175 (2d Cir. 2012) (citing 20 U.S.C. § 1414(d)). “The IEP is the

centerpiece of the IDEA’s education delivery system for disabled children” and

serves as the means by which the State delivers a disabled child’s FAPE. Mr. P,

885 F.3d at 741 (internal quotation marks and brackets omitted). It constitutes “a

written statement that sets out the child’s present educational performance,

establishes annual and short‐term objectives for improvements in that

performance, and describes the specially designed instruction and services that

will enable the child to meet those objectives.” R.E., 694 F.3d at 175 (quoting D.D.

ex rel. V.D. v. N.Y.C. Bd. of Educ., 465 F.3d 503, 507–08 (2d Cir. 2006)). In New

York, local Committees on Special Education (“CSEs”) are responsible for

developing IEPs and are tasked with identifying an educational program tailored

to the student’s particular needs and achievement levels. See id.

Parents who believe a child has been denied a FAPE may enroll the child in

a private school at their own financial risk and seek retroactive reimbursement

from the school district for the cost of the private school. A.C. ex rel. M.C. v. Bd.

of Educ. of The Chappaqua Cent. Sch. Dist., 553 F.3d 165, 171 (2d Cir. 2009). In New

York, such claims are first adjudicated before an IHO and may then be appealed

to the SRO. See R.E., 694 F.3d at 175 (citing N.Y. Educ. Law §§ 4404(1)‐(2)). The

IDEA provides for judicial review of the SRO’s decision by a federal district court.

Id. (citing 20 U.S.C. § 1415(i)(2)(A)).

II. Factual Background

W.E. attended public school in the District through the eighth grade. He

performed well and was engaged in several extracurricular programs until the

sixth grade, when he developed severe internal pain that led to an emergency

appendectomy and caused him to miss at least 26 days of school. W.E. was

diagnosed with abdominal migraines which persisted throughout seventh grade

and which were increasingly compounded by conventional migraines, causing

him to miss at least as many school days as he had the prior year. His headaches

continued to worsen through the spring of seventh grade when W.E.’s mother,

M.S., referred W.E. to the District’s Section 504 Committee 3 and requested

tutoring, which the District approved.

As part of the Section 504 process, Dr. Richard Brodsky, the school

psychologist, performed a psycho‐educational evaluation of W.E. That

evaluation yielded above‐average scores on a cognitive test measuring W.E.’s

“General Intellectual Ability.” W.A., 219 F. Supp. 3d at 430. Except for math

fluency, in which W.E. fell into the “low average” range, the evaluation also

yielded average to advanced scores on a number of subtests targeted to measure

academic achievement. Id. Dr. Brodsky also administered the Behavior

Assessment System for Children‐Second Edition (“BASC‐2”) to W.E. and to two

of his teachers on W.E.’s behalf. That assessment generated “at‐risk” scores in

the areas designated “Relations to Parents” and “Attitudes Towards School.” Id.

One of W.E.’s teachers also produced a “clinically significant score” reflecting “a

high level of maladjustment” as a result of W.E.’s somatization. Id. In June

2010, the District’s Section 504 Committee met and found W.E. eligible for an

accommodation based upon his migraine disability. The accommodation

3 As the district court explained, “[a] Section 504 committee is so named as a reference to § 504 of the Rehabilitation Act,” 29 U.S.C. § 794. W.A., 219 F. Supp. 3d at 429 n.1.

consisted of extra time to complete assignments, nursing services as needed, and

access to class notes and home tutoring.

W.E.’s eighth‐grade year was increasingly fraught, with his migraines

causing him to miss a total of more than 100 school days. Although he did well

in some classes, he struggled in others, missed some state exams, and became more

socially isolated. W.E. received some of the tutoring to which he was entitled

under his Section 504 plan, but the Parents were not satisfied with the assigned

tutor, and efforts to find a replacement interrupted the tutoring before it was

recommenced. In December 2010, M.S. notified the District that she observed her

son to be in “crisis” and requested certain interventions; she also contacted Dr.

Brodsky, who recommended private relaxation counseling for W.E. Id. at 433.

Per M.S.’s request, the District scheduled a meeting for January 5, 2011, to review

W.E.’s Section 504 plan, but M.S. later emailed Caroline Almeida, the District’s

Assistant Director of Pupil Personnel, to suggest canceling the meeting in light of

W.E.’s progress over the winter break and M.S.’s understanding that he “had all

the program modifications in place.” Id. at 434 (brackets omitted).

In mid‐January 2011, the Parents began the process of looking into a private

school for W.E.’s upcoming ninth‐grade year. M.S. and W.E. visited Northwood,

a boarding school in the Adirondacks, in late February 2011. The school is a self‐

described small college preparatory school that strives to incorporate the values of

integrity, compassion, responsibility, courage, and respect into its pedagogy and

operations. During this initial visit W.E. grabbed M.S.’s coat and asked, “Can I

go here?” Id. at 438. W.E. was admitted, and the Parents paid a deposit and

signed an enrollment contract in March 2011. Later that spring M.S. and W.E.

visited Northwood again with W.A. and confirmed W.E.’s intent to attend in the

fall.

Meanwhile, throughout the spring of W.E.’s eighth‐grade year, discussions

with the District continued. By April 2011 the Parents had referred W.E. to the

local CSE to determine his eligibility for special education services under the

IDEA’s “other health impairment” (“OHI”) classification; they also requested an

emergency Section 504 meeting, which Ms. Almeida promptly scheduled. At

that meeting of April 15, 2011, the Section 504 Committee recommended

counseling. Dr. Brodsky suggested it should take place outdoors. The Section

504 Committee also recommended that a psychiatric evaluation be conducted in

preparation for the upcoming CSE meeting. An evaluation was scheduled with

a psychiatrist named Dr. Hahn. Dr. Hahn prepared a report based on his

consultation with M.S. but was not able to evaluate W.E. due to his migraines

and/or anxiety. His report recommended a holistic approach to helping W.E.

learn how to cope with his stress, including bio‐feedback and relaxation methods,

mindfulness training, play therapy, and access to an outdoor adventure‐based

program.

The CSE meeting was held on May 25, 2011, without a psychiatric

evaluation. The Parents took issue with a number of aspects of that meeting,

including the District’s failure to include a parent on the CSE. In advance of a

follow‐up CSE meeting on August 26, 2011, the Parents submitted letters from

three different clinicians who recommended a smaller school environment for

W.E. or a non‐mainstream placement. The CSE ultimately classified W.E. as a

student with a disability under the OHI designation. A draft IEP recommended

twice‐weekly individual counseling, program accommodations consisting of

access to class notes, nursing services, and extra time for completing assignments,

and classes with a student‐to‐staff ratio of 8:1:1.

Kathleen Coughlin, the District’s director of Pupil Personnel Services, later

testified that she discussed two programs at the August 2011 CSE meeting that

might meet W.E.’s needs for his ninth‐grade year: the BOCES (Board of

Cooperative Educational Services) program in Southern Westchester and the one

in Putnam Northern Westchester. According to Ms. Coughlin, she explained to

W.E.’s Parents that neither option could be recommended as a final placement

until the referral process was complete but that the CSE could offer interim home

instruction pending completion of an expedited referral process. The Parents

ultimately concluded that BOCES was not an appropriate placement for W.E.

They formally withdrew W.E. from the District by letter dated August 30, 2011.4

W.E. began private school at Northwood at the start of his ninth‐grade

school year. At Northwood the student‐teacher ratio in W.E.’s classes was below

8:1 and W.E. was assigned a nurse as a faculty advisor; another nurse lived on his

dormitory floor. Some classes were structured around a large oval table so as to

require participation from all students, and the school incorporated organized

study periods as well as outdoor activities into its educational structure.

Northwood ensured that W.E.’s teachers were aware of his accommodation plan,

which required that W.E. receive additional time for in‐class assignments,

preferential seating, graphic organizers or guided notes to facilitate verbal

4In November 2011, the Parents visited the programs recommended by the CSE and learned that both had a student‐to‐teacher ratio of 12:1:1 as opposed to the 8:1:1 ratio proposed in W.E.’s draft IEP.

lectures, and regular sessions with the school counselor. W.E. earned passing

grades in all of his ninth‐grade classes and, more notably, missed only nine days

of school due to his migraines. He also grew more socially adjusted, received

positive feedback from teachers, and tapered off his mood‐stabilizing medications.

Dr. Williams later testified that Northwood “appeared to be highly appropriate

for W.E. as reflected in his dramatic improvement in headache frequency that had

persisted for the first time in previous years beyond the summer well into the fall

term and its conclusion.” Id. at 442 (brackets omitted). Some of W.E.’s teachers,

however, indicated that he struggled with organization skills, preparing for class,

and handing in assignments on time and that his grades were below his potential.

One teacher cited W.E.’s poor behavior in an incident in which she needed to

remove him from class due to rude remarks he made to another student. In

February 2012, Northwood accepted W.E.’s re‐enrollment for his tenth‐grade year.

In April 2012, the District began formulating a program recommendation

for W.E.’s tenth‐grade year despite W.E.’s attendance in private school. Reports

provided by W.E.’s teachers at Northwood noted his lack of organization, missing

class assignments, and stress‐triggered migraines alongside his strong intellectual

abilities. A February 2012 BASC‐2 test showed significant improvement in

W.E.’s attitude toward school, but the BASC‐2 completed by one of W.E.’s teachers

at Northwood rated W.E. “as clinically significant for somatization and at risk for

social skills.” Id. at 443. The CSE held W.E.’s annual review meeting on June

14, 2012. Dr. Williams sent a letter to the CSE in advance of that meeting

describing W.E.’s “remarkable” progress, which he attributed in part to his

placement at Northwood; Dr. Williams recommended that W.E. not undergo any

change of placement for the upcoming year. Id. At the meeting the Parents also

shared their view that W.E. was experiencing fewer migraines, earning average

grades, and engaging in various outdoor activities at Northwood. The IEP that

was finalized for W.E. recommended a student‐teacher ratio of 8:1:1 and

participation in Southern Westchester BOCES at Irvington High School’s TSP

(Therapeutic Support‐Fragile Program). The Parents expressed concerns with

this prospective placement to District officials during a subsequent CSE meeting

in August 2012. They rejected the IEP by letter dated September 20, 2012.

W.E.’s accommodation plan for his tenth‐grade year at Northwood included

the four previous accommodations from his ninth‐grade year as well as three new

accommodations: use of an iPad in class, a supervised study hall, and access to a

school nurse. In addition to continuing what was essentially informal counseling

from the prior year with Donald Mellor, an English teacher and Northwood

counselor, Dr. Williams advocated for “a more systematic psychotherapy

program,” and in the spring of his tenth‐grade year W.E. began meeting weekly

with a private social worker. Id. at 446–47. Reports from W.E.’s teachers

throughout his tenth‐grade year were again inconsistent, containing a mixture of

praise for his academic achievement and criticism of his lack of organization,

uneven performance, intermittent lack of engagement, and occasionally

inappropriate behavior. W.E. was also able to play soccer and participate in an

outdoor program in Yellowstone and seemed to grow in his social comfort and

confidence, though he experienced an especially severe migraine in May 2013.

Several clinicians later testified that Northwood was appropriate for W.E.’s

emotional and mental health needs.

III. Administrative Proceedings

A. Case One: The Eighth‐ and Ninth‐Grade School Years

i. IHO Hearing and Decision

In November 2011, W.E.’s Parents requested an impartial hearing, asserting

that the District denied W.E. a FAPE for W.E.’s eighth‐ and ninth‐grade academic

years. The Parents sought reimbursement for W.E.’s tuition at Northwood for

ninth grade and compensatory counseling services for the eighth‐grade school

year. A hearing was conducted before an IHO over nine days between February

1 and April 2, 2012.

On May 30, 2012, the IHO issued a 37‐page decision in which it concluded

that the District violated its Child Find obligation and failed to provide W.E. with

a FAPE for W.E.’s eighth‐grade year. According to the IHO, the District’s Child

Find obligation was triggered by January 3 of the eighth‐grade school year, by

which time W.E. had exhibited a pattern of missing an increasingly high number

of school days for health reasons and numerous teachers had reported being

unable to issue grades for W.E. due to missing assignments. The IHO also noted

M.S.’s outreach to Dr. Brodsky during December 2010, which the IHO found also

should have put the District on notice even in the face of M.S.’s sometimes

conflicting signals about the status of her son’s wellbeing. Additionally, W.E.’s

clinically significant score regarding somatization on the BASC‐2 from the

previous spring had already triggered the accommodations that were developed

in W.E.’s June 2010 Section 504 plan, and the IHO noted that by January 3, 2011, it

should have been apparent to the District that this earlier plan was not fulfilling

W.E.’s needs. The IHO further concluded that had the CSE timely convened, the

record evidence would have supported a finding that W.E. satisfied the criteria for

the IDEA’s OHI designation.

The IHO ordered the District to reimburse W.E.’s Parents for therapy

sessions that provided Dr. Williams the diagnostic information used in preparing

his August 2011 evaluation report and which the District relied upon in

developing W.E.’s IEP. It also ordered reimbursement for five therapy sessions

provided by Dr. Andrew Robins during W.E.’s eighth‐grade year and payment for

an additional fifteen hours of counseling. The IHO, however, denied the Parents’

request for 200 hours of compensatory education in the form of tutoring, due to

their failure to demonstrate that W.E. was in need of academic remediation.

As for W.E.’s ninth‐grade year, the IHO concluded that the District failed to

provide W.E. a FAPE by neglecting to complete timely its evaluation of W.E. and

arrange for an appropriate placement for that school year. The IHO rejected the

District’s argument that the Parents’ failure to produce W.E. for a psychiatric

evaluation excused its failure to evaluate W.E. within the 60‐days required by

applicable State regulations, reasoning that “the District had the affirmative

obligation to get the evaluation conducted even if it meant sending a psychiatrist

to the student’s home” if it thought the evaluation necessary. 5 Special

Supplemental Appendix (“Sp. Supp. App.”) 28.

Even though the IHO found that the District denied W.E. a FAPE, it ruled

that the Parents were not entitled to tuition reimbursement because they did not

meet their burden of proving that Northwood was an appropriate placement for

W.E. After reviewing in detail the relevant evidence presented by the Parents,

including testimony offered by Dr. Williams, Dr. Robins, and Mr. Mellor, the IHO

concluded that there was no evidence that Northwood was tailored to addressing

any of W.E.’s psychological or emotional issues, which the weight of the testimony

indicated were the underlying triggers of his migraines. The IHO noted that

Northwood does not have a psychologist or psychiatrist on staff and that the only

counseling W.E. received at Northwood was in the form of informal check‐ins

initiated by Mr. Mellor. The IHO also found that while W.E. achieved “average

to excellent grades,” he continued to exhibit struggles with organization and study

skills, which Northwood did not work with him to remedy. Id. at 37. As for

5 The IHO rejected the Parents’ argument that the District’s failure to include a parent member on the CSE deprived W.E. of a FAPE but found that the District’s failure to include a special education teacher as well as a general education teacher who was familiar with W.E. on the CSE contributed to the District’s violation of the IDEA.

equitable considerations, while not required to weigh them in light of its

conclusion that the District’s reimbursement obligation was not triggered, the IHO

nonetheless noted that W.E.’s Parents fully cooperated with the District and did

not impede the CSE process. The IHO rejected the District’s argument that the

Parents never intended to send W.E. anywhere but Northwood, finding instead

that they were open to the District’s recommendations and “lived with very real

uncertainty about whether” W.E. would be able to attend Northwood as they had

hoped. Id.

ii. SRO Appeal and Decision

The Parents appealed the IHO’s denial of reimbursement and request for

compensatory education services to the SRO and the District cross‐appealed the

IHO’s finding that the District denied W.E. a FAPE for the eighth‐ and ninth‐grade

school years. The SRO ruled that, contrary to the IHO’s finding, the District did

not have reason to suspect that W.E. had a disability requiring special education

prior to April 2011 due to W.E.’s overall positive educational progress with the

accommodations the District provided him in the Section 504 plan developed in

June 2010. In reaching this conclusion, the SRO cited frequent communications

between W.E.’s Parents and the District’s personnel between winter 2010 and

spring 2011 evidencing the District’s commitment to fulfilling W.E.’s June 2010

Section 504 plan, M.S.’s incidences of retracting earlier requests for intervention in

the face of W.E.’s improvement and in the interest of maintaining “normalcy” for

her son, W.E.’s high level of academic achievement as reflected on his eighth‐grade

report card and state exams, and positive feedback from teachers regarding W.E.’s

intellectual abilities, behavior, and attitudes. Id. at 69–72. The SRO also found

that W.E.’s BASC‐2 results from the previous spring were not enough to put the

District on notice given that the report did not cite any history of academic

difficulties or current interventions and Dr. Brodsky’s report otherwise credited

W.E. with appropriate to above‐average levels of attention, intelligence,

conceptual thinking, language, and academic skills. The SRO accordingly

reversed the IHO’s finding that the District violated its Child Find obligation for

W.E.’s eighth‐grade school year. And it affirmed the IHO’s denial of the Parents’

request for 200 hours of compensatory home instruction while declining to disturb

the award of counseling reimbursement based on its understanding that the

District did not appeal that aspect of the IHO’s ruling.

As for W.E.’s ninth‐grade year, the SRO concluded that the District violated

the IDEA by failing to have a finalized IEP in place at the start of ninth grade; it

therefore affirmed the IHO’s ruling that W.E. was denied a FAPE for that year.

The SRO next affirmed the IHO’s finding that Northwood was not an appropriate

placement for W.E. entitling the Parents to tuition reimbursement. After

reviewing the relevant evidence, the SRO concluded that while W.E.’s social,

emotional, and academic functioning improved at Northwood:

the hearing record lacks evidence demonstrating that [Northwood] provided instruction that was designed to address the student’s tendencies to develop physical symptoms and exhibit school avoidance when under stress, or his need to develop coping skills to manage stress related to academics and social interactions, and to improve his organizational/study skills related to academics, and, that the instruction that the student received during the 2011‐12 school year was, in fact, available to all students enrolled at [Northwood]. The hearing record fully supports the IHO’s determination that the parents presented no evidence that the student’s underlying emotional issues, organizational issues, or study skills were addressed by [Northwood].

Id. at 84–85. In light of its conclusion the SRO declined to consider whether the

equities supported the Parents’ claim.

B. Case Two: The Tenth‐Grade School Year

i. IHO Hearing and Decision

The Parents filed their Case Two complaint notice in April 2013, alleging

that the District failed to provide W.E. a FAPE for W.E.’s tenth‐grade school year

and seeking tuition reimbursement for that year at Northwood. Following a six‐

day hearing, the IHO issued a decision on December 17, 2013, in which it

concluded that the District’s IEP process failed to account for W.E.’s extraordinary

characteristics and that the resultant IEP was not responsive or appropriately

tailored to W.E.’s needs, thus denying W.E. a FAPE during his tenth‐grade year.

In so ruling, the IHO separately addressed what it identified as the District’s

alleged procedural and substantive violations of the IDEA. In the former

category the IHO found that by recommending both a student‐teacher ratio of 8:1

and mainstream placement in Math, English, and Science (which have a student‐

teacher ratio of 24:1), W.E.’s IEP contained an internal inconsistency, which the

District never attempted to reconcile. The IHO declined to reach the alleged

substantive violations in light of its conclusion that the District’s IEP constituted a

procedural violation that denied W.E. a FAPE but noted W.E.’s “significant social

and educational progress in the prior school year at” Northwood. Supplemental

Appendix (“Supp. App.”) 126.

The IHO next ruled that by “providing the Student with educational

instruction specially designed to meet his needs, including certain neccesary[sic]

support services,” Northwood was an appropriate placement for W.E. Id. at 127.

The IHO noted that Northwood’s small class size comported with W.E.’s IEP, and

that Northwood assisted W.E. with his need for organization during a free period,

in addition to providing two supervised study halls and a nightly study session

monitored by a faculty member. It also found that Northwood’s residential

environment combined with its mountain location and integration of outdoor,

stress‐relieving activities rendered “it uniquely suited to address the Student’s

migraines.” Id. at 129. The IHO additionally emphasized Northwood’s

development of an accommodation plan that was tailored to W.E.’s needs, the

informal counseling sessions the school provided W.E. on a regular basis, and

Northwood’s ability to deliver 24‐hour‐a‐day nursing services. It ruled

accordingly that the Parents were entitled to tuition reimbursement.

ii. SRO Appeal and Decision

On March 18, 2014, the SRO issued a decision in which it agreed with the

IHO’s findings regarding the internal inconsistencies in W.E.’s IEP and thus

affirmed the IHO’s ruling that W.E. was denied a FAPE. The SRO, however,

reversed the portion of the IHO’s decision ruling that Northwood was an

appropriate placement for W.E. The SRO reviewed the relevant testimony and

evidence in detail and found that it was “without question that during the 2012‐

13 school year, the student exhibited progress in the sense that except when

experiencing a migraine, he attended classes consistently, achieved grades in the

‘A‐’ to ‘C+’ range, and demonstrated increased maturity and ability to socially

interact with peers.” Id. at 109. Despite the accommodations and amenities

available at Northwood, the SRO concluded that:

the hearing record does not contain evidence that [Northwood] provided the student with specially designed instruction to meet his ongoing need to develop insight and understanding into what triggered his stress and anxiety, and positive coping skills to address stress and decrease anxiety; difficulties that the hearing record showed not only contributed to the student’s tendency to develop migraine headaches, but also to exhibit organizational deficits and avoidance behaviors.

Id. The SRO also noted that while W.E. appeared to have benefitted from his

informal counseling with Mr. Mellor, the hearing record did not contain any

counseling notes, progress reports, or other records indicating that the counseling

was addressing W.E.’s “need to develop insight and coping skills,” and that while

W.E. eventually participated in more systematic counseling with a private social

worker later in the school year, there was similarly no evidence showing how this

private counseling was tailored to W.E.’s needs. Id. And even though W.E.

achieved satisfactory grades throughout his tenth‐grade year, the SRO observed

that “he continued to exhibit organizational and motivational/behavioral

difficulties at times in his class.” Id. at 110. The SRO found that Northwood

offered W.E. accommodations that were available to virtually all other students,

but that the record lacked evidence showing how Northwood “provided specially

designed instruction to address the student’s organizational difficulties.” Id.

The SRO ruled accordingly that the Parents failed to carry their burden of

demonstrating that Northwood was an appropriate placement.

IV. District Court Proceedings

The Parents sought judicial review of each of the SRO’s decisions. Their

first federal court complaint, filed on April 30, 2014, challenged the SRO’s decision

in Case One and sought reimbursement of home instruction and counseling costs

for W.E.’s eighth‐grade school year and tuition reimbursement for their unilateral

placement of W.E. at Northwood for the ninth‐grade school year. The second

complaint, filed on June 13, 2014, challenged the SRO’s decision in Case Two and

sought tuition reimbursement for W.E.’s placement at Northwood for the tenth‐

grade academic year. The two cases were consolidated in September 2015, and

the parties filed cross‐motions for summary judgment.

A. Case One

With respect to W.E.’s eighth‐grade year, the district court found “no reason

to disturb the SRO’s reasoned analysis,” concluding that the District did not deny

W.E. a FAPE. W.A., 219 F. Supp. 3d at 458. While the district court

acknowledged the Parents’ emphasis on W.E.’s clinically significant somatization

scores from seventh grade and incomplete grades from his eighth‐grade second‐

quarter, among other signals that the Parents alleged should have put the District

on notice of W.E.’s disability, the district court noted that “[t]he crux of the SRO’s

decision, however, was not so much that there was no basis to suspect that W.E.

may be disabled, but that there was no reason to suspect that special education was

needed to remedy that disability.” Id. at 457. Given that the SRO thoroughly

considered W.E.’s progress in the general education curriculum with the

accommodations provided in his Section 504 plan, as well as his performance on

standardized tests and psychological evaluations and feedback from his teachers,

and given that the SRO weighed testimony from M.S. and from W.E.’s counselors,

neurologist and a private psychologist, the court found the SRO’s conclusions

supported by the record. In this regard the district court found that “the SRO’s

decision stood on more solid conceptual footing than the IHO’s.” Id. at 459.

As for the issue of tuition reimbursement, the district court noted as an

initial matter that the District did not challenge the SRO’s conclusion in each case

that W.E. was denied a FAPE for his ninth‐ and tenth‐grade years and that it would

therefore skip directly to the reimbursement analysis. The court deferred to the

SRO’s conclusion in Case One that Northwood was not an appropriate placement

for W.E.’s ninth‐grade year but held that the SRO’s conclusion in Case Two was

neither well‐reasoned nor persuasive. While the records in both cases would

appear relevant to the common question of whether Northwood was an

appropriate placement, and while the same SRO presided over both

administrative appeals, the district court noted that it would attempt to analyze

the issue separately in the context of each of the two school years, “[g]iven the

material differences between the SRO’s two opinions in terms of quality and

persuasiveness.” Id. at 463.

The district court found the Parents’ challenges to the IHO and SRO

decisions unconvincing in Case One, noting that both the IHO and SRO took

adequate stock of the available evidence and that any reputed flaws in the

opinions were ultimately insufficient to strip them of the deference to which they

were otherwise entitled. The district court also independently assessed the

Parents’ arguments regarding Northwood’s appropriateness as a placement for

W.E.’s ninth‐grade year and concluded that the substantial improvement in W.E.’s

attendance record could not alone satisfy the Parents’ burden. W.E.’s grades and

positive response to the Northwood culture did not lead the district court to

question the IHO’s and SRO’s reasoning. Nor did the district court think it was

in a position to question the state officers’ determination that W.E.’s counseling

was not tailored to his needs. The district court did note that it found the SRO’s

reasoning regarding Northwood’s smaller residential setting unpersuasive given

the evidence that W.E. was in need of a smaller school environment, but that this

factor was not sufficient to undermine the SRO’s opinion. The court reached a

similar conclusion regarding the SRO’s finding that Northwood’s accommodation

plan was not responsive to W.E.’s needs, and noted that the fact that other

Northwood students received the same accommodations did not speak to their

efficacy or appropriateness for W.E. Despite the flaws that the district court

identified in the SRO’s opinion, the court agreed that the Parents did not satisfy

their burden of showing that Northwood was an appropriate placement,

especially in light of the SRO’s analysis regarding Northwood’s failure to offer

meaningful counseling or vehicles for addressing W.E.’s organizational and stress‐

related issues.

B. Case Two

Although the same SRO presided over both appeals, the district court found

its reasoning deficient in Case Two. It noted that “although the SRO provided a

thorough recitation of the facts on the record, it dedicated barely two pages to

actually analyzing whether Northwood was an appropriate placement.” Id. at

470. The district court found that the SRO placed undue emphasis on W.E.’s need

to cope with stress at the expense of W.E.’s other needs relating to his

organizational skills and study habits and a supportive educational environment.

While the court did not agree with all of the IHO’s reasoning, it found the IHO’s

analysis more compelling and accordingly considered its opinion in weighing the

appropriateness of Northwood as a placement for W.E.’s tenth‐grade year.

The district court addressed each of the Parents’ arguments, first finding

that the SRO’s conclusions regarding W.E.’s mixed academic progress were

largely consistent with the record but that this factor should nonetheless slightly

favor reimbursement. The district court observed no error in the SRO’s

conclusion that W.E.’s participation in outdoor activities was not specially

designed for his needs but found that the SRO failed to accord appropriate weight

to the significant improvement in W.E.’s attendance, noting that this improvement

“was attributable to Northwood’s boarding feature.” Id. at 472. As for

Northwood’s accommodations, the district court was particularly concerned by

the SRO’s failure to consider W.E.’s use of an iPad, which testimony before the

IHO had indicated “was a ‘godsend’ for W.E.” and helped with his organizational

difficulties. Id. at 473. The court noted that the fact that the iPad was generally

available to all Northwood students did not change its analysis, as “the Second

Circuit has never indicated that a resource available to all students cannot be

considered for purposes of determining appropriate placement if that resource

addressed a specific need of the child.” Id. Although the district court noted

that the record contained little evidence of the effect of a second study hall

provided to W.E., it found the SRO’s failure to even mention the addition of a

study hall concerning. As for counseling, the district court agreed with the SRO

that the informal counseling provided by Mr. Mellor was not meaningfully or

appropriately tailored to W.E.’s needs. And the court found that Northwood’s

24‐hour nursing support weighed only slightly in favor of reimbursement given

the minimal record evidence showing specific benefits that W.E. received.

Finally, the district court held that Northwood’s small class size—which satisfied

W.E.’s IEP—favored reimbursement, finding again that the fact that such a feature

is generally available does not undermine its appropriateness in addressing a

particular student’s needs.

In short, the district court noted that while there was “no question the SRO

considered all of the evidence on the record,” it found its discussion of

Northwood’s appropriateness truncated and inadequate, specifically in failing to

consider Northwood’s small class size, residential component, 24‐hour nursing,

and the impact of its accommodations on W.E.’s specific needs. Id. at 476. The

court again noted that it reached a differing conclusion regarding the SRO’s

opinion in Case Two due to its more conclusory and unpersuasive nature, but also

because the record for the tenth‐grade year was “more robust and offers more

insight into the benefits and accommodations Northwood offered to W.E. to meet

his specific needs.” Id. at 477. It also considered the equities de novo and

concluded that they, too, favored reimbursement, finding that the Parents

participated in the CSE process with an open mind and afforded the District an

opportunity to construct an appropriate IEP while simultaneously pursuing

necessary steps to secure W.E.’s prospective re‐enrollment at Northwood. The

court noted, for instance, that the Parents made another visit to the Southern

Westchester BOCES program in July 2012, which undermined the District’s

argument that W.E.’s enrollment at Northwood was inevitable.

C. The District’s Counterclaim

The district court also granted the District’s motion to amend to add a

counterclaim for costs awarded by the IHO in Case One. The parties cross‐

moved for summary judgment on the counterclaim and on July 18, 2017, the

district court awarded summary judgment to the District and vacated the award

of compensatory education for the eighth‐grade school year based on its

affirmance of the SRO’s ruling that W.E. was not denied a FAPE during eighth

grade. On September 13, 2017, the district court entered final judgment

incorporating its opinions and orders dated November 23, 2016, and July 18, 2017.

The District appealed and the Parents cross‐appealed.

DISCUSSION

I. Deference Owed to State Hearing and Review Officers

“We undergo a circumscribed de novo review of a district court’s grant of

summary judgment in the IDEA context because the responsibility for

determining whether a challenged IEP will provide a child with a 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 and brackets omitted). “Summary judgment in the IDEA context,

therefore, is only a ‘pragmatic procedural mechanism for reviewing

administrative decisions.’” Id. (quoting T.P. ex rel. S.P. v. Mamaroneck Union Free

Sch. Dist., 554 F.3d 247, 252 (2d Cir. 2009) (per curiam)). “Federal courts reviewing

administrative decisions [under the IDEA] must give ‘due weight’ to the

administrative proceedings, ‘mindful that the judiciary generally lacks the

specialized knowledge and experience necessary to resolve persistent and difficult

questions of educational policy.’” Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377,

381 (2d Cir. 2003) (quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129

(2d Cir. 1998)).

Courts reviewing the state agency’s decision must base their decision on a

preponderance of the evidence and may not substitute their own views on

educational policy for those of the school authorities. A.C., 553 F.3d at 171. Our

review of the state’s educational decisions is therefore limited, demanding a level

of scrutiny that is more critical than clear‐error but not nearly as complete as de

novo. See C.F. ex rel. R.F. v. N.Y.C. Dep’t of Educ., 746 F.3d 68, 77 (2d Cir. 2014).

Accordingly, what we refer to as “de novo review” in fact “only seeks to

independently verify that the administrative record supports the district court’s

determination” regarding the sufficiency of the state’s educational decisions. Mr.

P, 885 F.3d at 748 (quoting M.W., 725 F.3d at 138). We similarly afford special

deference to the district court where its “decision was based solely on the

administrative record.” A.C., 553 F.3d at 171.

If the SRO and IHO decisions conflict, “the IHO’s decision ‘may be afforded

diminished weight.’” Id. (quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d

105, 113 n.2 (2d Cir. 2007)). In other words, we would “defer to the final decision

of the state authorities, that is, the SRO’s decision.” M.W., 725 F.3d at 139

(internal quotation marks omitted). Yet such deference applies only to the SRO’s

“reasoned conclusions”—that is, “[r]eviewing courts must look to the factors that

‘normally determine whether any particular judgment is persuasive’” and must

ultimately “defer to the SRO’s decision on matters requiring educational expertise

unless [the court] concludes 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 (quoting M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 244, 246 (2d Cir. 2012)).

“But the district court’s determination of the persuasiveness of an administrative

finding must also be colored by an acute awareness of institutional competence

and role. . . . [T]he purpose of the IDEA is to provide funding to states so

that they can provide a decent education for disabled students consistent with their

traditional role in educating their residents.” M.H., 685 F.3d at 244.

II. Issues for Judicial Review

A. Case One

i. W.E.’s Eighth‐Grade Year

The Parents challenge the district court’s deference to the SRO’s ruling that

the District met its Child Find obligation during W.E.’s eighth‐grade year. The

Council of Parent Attorneys and Advocates, Inc. has also submitted a brief as

amicus curiae in which it asserts that the District violated its Child Find obligation

with respect to W.E. As noted previously, the IDEA and its implementing

regulations require each State to develop policies and procedures for identifying

and evaluating children with disabilities for special education services. Mr. P,

885 F.3d at 749; 34 C.F.R. § 300.111. This obligation extends not only to children

with disabilities but also to those “who are suspected of being a child with a

disability . . . and in need of special education, even though they are advancing

from grade to grade.” Id. § 300.111(c)(1). “However, ‘Child Find does not

demand that schools conduct a formal evaluation of every struggling student.’”

Mr. P, 885 F.3d at 749 (quoting D.K. v. Abington Sch. Dist., 696 F.3d 233, 249 (3d.

Cir. 2012)).

“To hold a school district liable for failing to identify a student who should

be evaluated for purposes of receiving special education, a claimant must show

that school officials overlooked clear signs of disability and were negligent in

failing to order testing, or that there was no rational justification for not deciding

to evaluate.” Id. at 750 (internal quotation marks omitted). “A school district

must begin the evaluation process within a reasonable time after the district is on

notice of a likely disability.” Id. The SRO ruled that the District was not on

notice that W.E. might have a disability warranting special education services

prior to the Parents’ referral of W.E. to the CSE in April 2011 and that it therefore

did not violate its Child Find obligation. Its thorough opinion found that the

administrative record supported the District’s view that W.E. appeared to be

“making progress within the general curriculum despite his absences.” Sp.

Supp. App. 71. It also noted that the District worked with the Parents to enable

W.E. to catch up on schoolwork despite his extensive absences, citing, inter alia,

laudatory contemporaneous remarks made by M.S. about the District and its

teachers, as well as M.S.’s decision to cancel a January 2011 Section 504 review

meeting due to her communicating that “I think we have everything in place.”

Id. at 70.

In arguing that the District was on notice of W.E.’s potential disability much

earlier, the Parents point out that by mid‐January 2011, W.E. had already missed

more days of school than permitted by District policy for the entire year, received

incompletes in three subjects, dropped his Enriched English class, and that his

grade in Algebra had fallen from a 93 to a 78. With the exception of W.E. having

dropped Enriched English, the SRO’s opinion indicates awareness of these facts,

however, and instead reaches a contrary conclusion that it was not until the third

quarter of W.E.’s eighth grade year that his “absences began to compromise his

ability to achieve academically.” Id. at 71. And as the district court noted, the

SRO also considered W.E.’s standardized test scores and feedback from teachers,

thus construing the meaning of “academic success” more broadly than the IHO

had done—an analysis it was entitled to undertake. See W.A., 219 F. Supp. 3d at

459.

Because we must defer to the SRO’s “reasoned conclusions” on “matters

requiring educational expertise,” R.E., 694 F.3d at 189, we hold that the district

court properly deferred to the SRO on the question of whether the District violated

its Child Find obligation for W.E.’s eighth‐grade school year. The question of

whether the District should have taken more aggressive steps in the face of

competing signals arising from various interactions with the Parents and with the

District’s personnel regarding W.E.’s progress in the general education curriculum

is an issue that calls for expertise; it is therefore an issue on which we must defer

to the educational experts. In addition, the district court correctly noted that

“[t]he crux of the SRO’s decision, however, was not so much that there was no

basis to suspect that W.E. may be disabled, but that there was no reason to suspect

that special education was needed to remedy that disability.” W.A., 219 F. Supp.

3d at 457. This is a conclusion that a reviewing court should not disturb absent

an objective flaw in the SRO’s reasoning. For similar reasons, we decline to

consider the argument presented by amicus that school avoidance is a

“manifestation of disability” that demanded intervention when the State was in

the best position to assess whether and to what extent W.E.’s absences warranted

special education services.

In light of our holding that W.E. was not denied a FAPE for his eighth‐grade

year, we decline, as the district court did, to reach the Parents’ request for

compensatory education for that year. For the same reason, we affirm the district

court’s July 18, 2017 decision vacating the SRO’s award of compensatory

counseling services for eighth grade. While the Parents assert that the award was

issued in connection with the denial of a FAPE for ninth grade because it was

intended to reimburse the Parents for therapy sessions that Dr. Williams relied

upon to develop W.E.’s ninth‐grade IEP, the IHO opinion in Case One makes clear

that the award of counseling reimbursement was issued in connection with the

denial of a FAPE for eighth grade. We are thus not inclined to override the State’s

explicit attribution. Nor do we find compelling the Parents’ argument that the

District’s alleged failure to appeal the IHO’s limited award of reimbursement for

Dr. Williams’s psychiatric services rendered the district court without jurisdiction

to grant the District’s motion to amend to seek recovery of these costs. As the

district court found, it “defies common sense to suggest” that the District did not

administratively appeal the reimbursement award when there is no question that

the District cross‐appealed the portion of the IHO’s decision that found that the

District had violated its Child Find obligation and denied W.E. a FAPE for his

eighth‐grade year. See W.A., 2017 WL 3066888, at *9.

In sum, we affirm in all respects the district court’s judgment and

accompanying opinion and orders regarding the eighth‐grade school year.

ii. Whether Northwood Was an Appropriate Placement for W.E.’s Ninth‐Grade Year

Courts apply the three‐step “Burlington/Carter” test to determine whether a

parent is entitled to retroactive tuition reimbursement. C.F., 746 F.3d at 76. We

first assess whether the District provided a FAPE; if it did not, we move on to the

second and third steps, under which the parents bear the burden of showing that

their unilateral private school placement was appropriate for the child’s needs and

that the equities work in their favor. Id.; see also A.C., 553 F.3d at 171–72. The

District does not contest that it failed to provide W.E. a FAPE for W.E.’s ninth‐ or

tenth‐grade school years, and we therefore move directly to the second step of the

analysis.

At step two, the private school placement “must be reasonably calculated to

enable the child to receive educational benefits.” M.H., 685 F.3d at 252 (internal

quotation marks omitted). “Grades, test scores, and regular advancement may

constitute evidence that a child is receiving educational benefit, but courts

assessing the propriety of a unilateral placement consider the totality of the

circumstances in determining whether that placement reasonably serves a child’s

individual needs.” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir.

2006). Even where the private placement yields evidence of the child’s success,

however:

courts should not disturb a state’s denial of IDEA reimbursement where the chief benefits of the chosen school are the kind of advantages that might be preferred by parents of any child, disabled or not. Rather, the unilateral private placement is only appropriate if it provides education instruction [specially] designed to meet the unique needs of a handicapped child.

M.H., 685 F.3d at 252 (quoting Gagliardo, 489 F.3d at 115 (internal quotation marks

and alterations omitted).

Our conclusion that the SRO’s opinion in Case One was sufficiently

reasoned and adequately supported by the administrative record supports the

deference that the district court conferred on the SRO on issues demanding its

educational expertise as concerns W.E.’s ninth‐grade year. We therefore affirm

the district court’s deference to the SRO’s ruling that Northwood School was not

an appropriate placement entitling the Parents to tuition reimbursement for ninth

grade. While the Parents argue that the State failed to consider fully

Northwood’s responsiveness to W.E.’s unique needs and the significant

improvements he experienced while enrolled at the private school—including his

momentous increase in attendance—the SRO’s opinion reflects that it considered

the relevant evidence of W.E.’s progress. For instance, the SRO noted that “the

hearing record supports a finding that the student’s social/emotional and

academic functioning improved since the end of the 2010‐11 school year, . . . and

that the student achieved some progress academically during the 2011‐12 school

year” while simultaneously citing reports from W.E.’s teachers describing his

inconsistent level of academic effort, timeliness, and preparation. Sp. Supp. App.

84. The SRO also properly cited this Court’s decision in Gagliardo, 489 F.3d at 115,

for the proposition that a student’s progress in a unilateral placement, while

relevant to the court’s inquiry, cannot alone demonstrate the appropriateness of

that placement.

Indeed, the crux of the SRO’s decision was not that W.E. failed to progress

at Northwood, but, rather, that:

Id. at 84–85. The SRO thus concluded that placing W.E. in Northwood’s

“residential setting—which merely eliminated his exposure to the public school

environment and to activities that he perceived as stressful—is not sufficient in

this case to meet the parents’ burden to establish that [Northwood’s] program

provided the student with educational instruction specially designed to meet his

unique needs.” Id. at 85. Instead, the SRO found that Northwood’s educational

and environmental benefits were those “that might be preferred by parents of any

child, disabled or not,” and therefore did not satisfy the IDEA’s definition of

special education. Id. (quoting Gagliardo, 489 F.3d at 115).

Because the question of whether a private school placement provided

special education services is precisely a question on which we defer to educational

experts, see, e.g., Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 451–52 (2d Cir. 2015), and

because the SRO’s considered opinion reflects that it viewed W.E.’s migraines as

stemming from underlying emotional and psychological issues that Northwood

was not equipped to address, we hold that the district court properly deferred to

the SRO notwithstanding its disagreement with certain aspects of the SRO’s

opinion. We therefore do not reach the issue of whether the equities favored

reimbursement.

B. Case Two

i. Whether Northwood Was an Appropriate Placement for W.E.’s Tenth‐Grade Year

As already noted, while the same SRO presided over the administrative

appeals in both Case One and Case Two, the district court found its opinion in the

latter case conclusory and unpersuasive and instead took the IHO’s opinion,

which it found more convincing, into account. “Where the IHO and SRO

disagree, reviewing courts are not entitled to adopt the conclusions of either state

reviewer according to their own policy preferences or views of the evidence; courts

must defer to the reasoned conclusions of the SRO as the final state administrative

determination.” M.H., 685 F.3d at 246. Because we are persuaded that the

district court improperly substituted its judgment on matters of educational policy

for that of the SRO, and in light of the district court’s own acknowledgment that

“[t]here is no question the SRO considered all of the evidence on the record,” W.A.,

219 F. Supp. 3d at 476, we hold that the district court improperly failed to accord

deference to the SRO’s ruling that Northwood School was not an appropriate

placement for W.E.’s tenth‐grade year.

First, we perceive no qualitative difference in the SRO’s opinions in Case

One and Two that would entitle the former but not the latter to deference. The

district court’s characterization of the SRO’s opinion in Case Two as “dedicat[ing]

barely two pages to actually analyzing whether Northwood was an appropriate

placement,” Id. at 470, is unfounded. It ignores the SRO’s comprehensive review

of the relevant record evidence documenting, inter alia, W.E.’s progress, reports

from W.E.’s Northwood teachers and clinicians, and the various accommodations

and amenities W.E. received at Northwood—all of which informed the SRO’s

ultimate conclusion as to whether Northwood provided W.E. special education

within the meaning of the IDEA.

The district court additionally criticized the SRO’s opinion as omitting

certain considerations, but the record reveals that, by and large, the SRO did

consider the same factors that the district court found dispositive and instead

differed as to their import. For example, the district court took issue with the

thoroughness of the SRO’s discussion of W.E.’s tenth‐grade accommodations,

specifically focusing on the way in which an iPad Northwood provided benefitted

W.E.’s academic progress. According to the district court, “the SRO made no

reference to the device in its analysis of whether Northwood was an appropriate

placement.” Id. at 473. In fact, however, the SRO opinion accounts for testimony

concerning the iPad in several places, specifically noting its use “as an

instructional or learning aid.” Supp. App. 104. While the district court

emphasized testimony from W.E.’s western civilization teacher indicating “that

the iPad was a ‘godsend’ for W.E.”, W.A., 219 F. Supp. 3d at 473, the SRO

highlighted, inter alia, other testimony from W.E.’s English teacher and counselor,

indicating that he thought the iPad was a good match but that he could not provide

quantifiable evidence of the way W.E.’s accommodation plan had benefitted him.

The SRO also noted comments from W.E.’s western civilization teacher stating that

W.E. used the iPad for notetaking and homework and that it lessened his need for

organizational help.

The district court also faulted the SRO for failing to discuss the vast

improvement in W.E.’s attendance while at Northwood. But the SRO observed

that the decreased frequency of W.E.’s headaches yielded “significantly improved

school attendance,” Supp. App. 100, later stating that “it is without question that

during the 2012‐13 school year, the student exhibited progress in the sense that

except when experiencing a migraine, he attended classes consistently, achieved

grades in the ‘A‐‘ to ‘C+’ range, and demonstrated increased maturity and ability

to socially interact with peers,” Id. at 109. What is more, while W.E.’s improved

attendance at Northwood undoubtedly serves as compelling indicia of progress,

it was from eighth to ninth grade that W.E. went from missing over 100 days of

school to only nine the following year. Yet the district court did not find this

enormous improvement vital enough to overturn the SRO’s assessment in Case

One. Between ninth and tenth grade, by contrast, W.E.’s absences essentially

remained the same, and so the district court’s emphasis on W.E.’s attendance in

the latter school year cannot bear the weight assigned to it.

Outside of W.E.’s attendance and his use of an iPad, the district court

lamented the SRO’s failure to discuss a second study hall Northwood offered

during the tenth‐grade school year, yet simultaneously noted that the record

contained little evidence of the study hall’s benefit. It also critiqued the SRO’s

lack of attention to Northwood’s small class size and boarding‐school feature,

which, according to the district court, “provided W.E. benefits specific to his

unique needs.” W.A., 219 F. Supp. 3d at 476. The SRO’s opinion, however, does

reflect that it considered Northwood’s small student‐to‐teacher ratio and the way

in which it enabled “discussion‐based learning.” Supp. App. 107. In so doing it

cited Frank G., 459 F.3d at 365, where this Court recognized that small class size

falls within the IDEA’s definition of special education but declined to decide

whether small class size alone could render a private placement appropriate.

This Court, moreover, recently recognized that small class size “is the kind of

educational and environmental advantage that might be preferred by parents of

any child, disabled or not.” Doe, 790 F.3d at 452 (internal quotation marks and

alterations omitted); see also Gagliardo, 489 F.3d at 115. The district court

otherwise agreed with the SRO’s characterization of W.E.’s academic performance,

as well as the SRO’s conclusions that Northwood did not provide meaningful

counseling and that its outdoor programming did not render it an appropriate

placement.6

In short, the district court’s decision not to defer to the SRO’s opinion on the

basis of the SRO’s putatively perfunctory analysis is not supported by the record.

Cf. C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 838 (2d Cir. 2014) (declining

to afford deference to SRO where its opinion “was not sufficiently reasoned or

carefully considered because the SRO did not consider or comment on any of the

specific services provided to [the student at the private school] or the progress that

the record shows he made at the school”).

Second, rather than “credit[] the conclusions that were most consistent with

its own subjective analysis,” the reviewing court should only reject the SRO’s

6 The district court was essentially ambivalent about the impact of nursing services, though its observation that “[i]t strains credulity to suggest that an around‐the‐clock nurse staff, one of whom resided on the same floor as W.E., . . . was not an educational feature that worked to W.E.’s specific benefit,” W.A., 219 F. Supp.3d at 475, would appear to apply with equal force to W.E.’s ninth grade year, where the district court reached a contrary conclusion.

conclusions if it finds that they are not supported by a preponderance of the

evidence. M.H., 685 F.3d at 248. Here, the district court did not address whether

the SRO’s conclusions were supported by a preponderance and instead appeared

to conduct a true de novo analysis of whether each factor favored reimbursement,

ultimately holding that the SRO “failed to give adequate weight to many of

Northwood’s most beneficial features and erroneously discounted the value of

some of those features merely because they were generally available to all

students.” W.A., 219 F. Supp. 3d at 470. We agree with the district court that a

resource that benefits an entire student population can constitute special education

in certain circumstances. Under our precedents, however, a reviewing court is

not entitled to overrule the State on a question of educational policy—such as

whether a generally available resource is specially tailored to a particular disabled

student’s needs—based merely on its own disagreement with the State’s

evaluation of that resource. See M.H., 685 F.3d at 241; see also Cerra v. Pawling Cent.

Sch. Dist., 427 F.3d 186, 196 (2d Cir. 2005) (For a reviewing court to render its own

determination on a matter of educational policy, it must point to “objective

evidence in the record suggesting that the SRO has reached an erroneous

conclusion.”). In ruling that Northwood School was an appropriate placement

for W.E.’s tenth‐grade year, the district court appeared to do just that—conducting

its own totality of the circumstances analysis in which it substituted its subjective

assessment for that of the State.

As in Case One, the SRO’s ruling was grounded in its conclusion that the

record lacked evidence showing that Northwood provided W.E. with “specially

designed instruction to meet his ongoing need to develop insight and

understanding into what triggered his stress and anxiety, and positive coping

skills to address stress and decrease anxiety; difficulties that the hearing record

showed not only contributed to the student’s tendency to develop migraine

headaches, but also to exhibit organizational deficits and avoidance behaviors.”

Supp. App. 109. While the Parents highlight the many benefits Northwood

provided W.E., endorsements of the private school by W.E.’s medical

professionals, and various emblems of W.E.’s academic, social, and emotional

growth during his tenure, many of the features that appear to have abated W.E.’s

stress and migraines are those that any parent would desire in an educational

setting—namely, smaller classes, closer attention by faculty and staff, bucolic

surroundings in a residential environment, and use of an iPad for organization

and note‐taking. Thus, even though the record may support the view that

Northwood was an excellent placement for W.E., it also supports the SRO’s

conclusion that Northwood was not methodologically or therapeutically

structured in the way required for reimbursement under the IDEA. See Gagliardo,

489 F.3d at 115. This educational policy judgment likewise reinforces the

deference that we believe we must give the SRO’s opinion.

CONCLUSION

We affirm the district court’s November 23, 2016 opinion and order to the

extent it deferred to the SRO’s conclusions regarding the District’s Child Find

obligation and Northwood’s failure to provide W.E. special education during the

ninth‐grade academic year. Because the district court failed to confer appropriate

deference to the SRO’s analysis regarding Northwood’s lack of specially designed

instruction tailored to W.E.’s unique needs during the tenth‐grade school year, we

reverse the district court’s November 23, 2016 opinion and order to the extent it

held that Northwood School was an appropriate placement for that school year

and accordingly vacate its award of tuition reimbursement. We also affirm the

district court’s July 18, 2017 opinion and order granting the District’s motion for

summary judgment and denying the Parents’ cross‐motion for summary

judgment and vacating the award of compensatory education for the eighth‐grade

school year.

Because the District is the prevailing party both on appeal and on the cross‐

appeal, costs under Fed. R. App. P. 39(a) shall be taxed against Appellees‐Cross‐

Appellants.

W. a. v. Hendrick Hudson Central Schoo