New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 593257- NYC: 243642

FINDINGS OF FACT AND DECISION

Case Number: 243642

Student’s Name: REDACTED (“Student”)

Date of Birth: 05/24/2014

School District: NYC District 2

Hearing Requested by: REDACTED REDACTED and REDACTED REDACTED (“Parent(s)”)

Request Date/Date Complaint Filed: December 12, 2022

Date(s) of Hearing: January 12, 2023, March 21, 2023, April 20, 2023, May 25, 2023, July 25, 2023, August 17, 2023, September 14, 2023, September 19, 2023, September 22, 2023, October 4, 2023, October 27, 2023, November 7, 2023, November 16, 2023

Actual Record Closed Date: January 21, 2024

Date of Decision: January 27, 2024

Date of Distribution if Different than Decision Date: N/A

Hearing Officer: Stephanie Seto, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 12, 2023

For the Student:

REDACTED, Esq.

For the NYC Department of Education (“DOE” or “District”):

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 21, 2023

For the Student:

REDACTED, Esq.

For the Department of Education:

REDACTED, Esq., NYC DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 20, 2023

For the Student:

REDACTED, Esq.

For the Department of Education:

REDACTED, Esq., NYC DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 25, 2023

For the Student:

REDACTED, Esq.

For the Department of Education:

REDACTED, Esq., NYC DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 25, 2023

For the Student:

REDACTED, Esq.

For the Department of Education:

REDACTED, Esq., NYC DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 17, 2023

For the Student:

REDACTED, Esq.

For the Department of Education:

REDACTED, Esq., NYC DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 14, 2023

For the Student:

REDACTED, Esq.

For the Department of Education:

REDACTED, Esq., NYC DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 19, 2023

For the Student:

REDACTED, Esq.

For the Department of Education:

REDACTED, Esq., NYC DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 22, 2023

For the Student:

REDACTED, Esq.

For the Department of Education:

REDACTED, Esq., NYC DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 4, 2023

For the Student:

REDACTED, Esq.

For the Department of Education:

REDACTED, Esq., NYC DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 27, 2023 (IN-PERSON)

For the Student:

REDACTED, Esq.

REDACTED REDACTED, Parent

REDACTED, The REDACTED (“REDACTED”), Director of REDACTED (VIA TELEPHONE)

For the Department of Education:

REDACTED, Esq., NYC DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 7, 2023

For the Student:

REDACTED, Esq.

REDACTED REDACTED, Parent (“Mother”

REDACTED, REDACTED, Director of REDACTED (“REDACTED”)

For the Department of Education:

REDACTED, Esq., NYC DOE

REDACTED, Comptroller, at REDACTED (“REDACTED”)

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 16, 2023

For the Student:

REDACTED, Esq.

REDACTED REDACTED, Parent (“Mother”

For the Department of Education:

REDACTED, Esq., NYC DOE

REDACTED, Comptroller, at REDACTED (“REDACTED”)

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC") filed on or about December 12, 2022. P Ex. A^[1] The DPC was brought pursuant to the Individuals with Disabilities Education Act (IDEA) and Article 89 of the New York State Education Laws and all attendant federal and state regulations alleges a denial of free and appropriate public education ("FAPE.") for the 2022 – 2023 school year seeking reimbursement or funding for Parents unilateral placement of Student at the REDACTED ("REDACTED"), a non-public school special education school, door-to-door special education transportation, and sought pendency placement for Student at REDACTED pursuant a prior Unappealed Findings of Fact and Decision issued on October 5, 2021 in Case No. 209034 (“2021 FOFD”) in which REDACTED was found to be an appropriate placement for Student and entitled Parents to tuition reimbursement of 90% of Student’s tuition and the District either fund and/or provide Student’s costs of transportation to and from Student’s home and REDACTED.

I was appointed as IHO in this matter on December 12, 2022. Attorney REDACTED, Esq., (“Mr. REDACTED”) represented the Parents, and REDACTED, Esq, (Mr. REDACTED”) represented the New York City Department of Education (hereinafter referred to as "District" or “DOE”). The case was heard on the multiple dates listed above. Initially, the matter was referred for settlement and the parties attempted to settle the matter. Tr. 1-93. At a status conference on September 14, 2023 it became apparent the settlement negotiations broke down. Tr. 58-93. At the status conference, it became clear a strongly disputed issue between the parties was whether Parents were entitled to full reimbursement under a Burlington/Carter analysis (Parents' position) or whether there should be a reduction of tuition reimbursement for religious instruction and worship in the Student’s program at REDACTED. Tr. 58-93. Further, at this status conference, Parent’s counsel requested a pendency hearing as although a pendency form had been executed by the District, pendency payments had not been paid for the 2022-2023 school year. Tr. 58-93. Parents counsel made a motion for an interim order on pendency due to District's failure to implement Student's stay-put rights during pendency of this matter and District opposed. Tr. 58-93. A pendency hearing was held on September 19, 2023 and discussed briefly again at a hearing on September 22, 2023.

On September 23, 2023, a Pendency Order was issued granting Parents pendency based upon the 2021 FOFD finding the District must continue funding REDACTED as the last agreed-upon program and placement for the child. IHO Ex. III. The Pendency Order also rejected any argument the District raised with regard to the appropriate percentage of tuition that the District should fund for the 2022-2023 school year as not relevant to pendency or ripe for pendency and such arguments could only be addressed in a hearing on the merits. Further, the District admitted by signing and processing a Pendency Implementation Form that REDACTED is the appropriate program, with tuition funded at 90% and transportation at 100% from the date the DPC in this matter was filed through to the end of pendency. IHO Ex. III.

On September 19, 2023, Mr. REDACTED also requested that the merits hearing be held “in-person” as opposed to on the Escribers virtual platform. Tr. 116. The District opposed. Tr. 117. While the forum for due process hearings had been via the virtual online Escribers platform provided by the Impartial Hearing Office, this IHO granted Mr. REDACTED’s request for an in-person hearing on the merits at a hearing held on September 22, 2023 to address the request. Tr. 146-188. Following the IHO’s grant of the in-person hearing, Mr. REDACTED immediately requested that the non-parent witnesses be able to appear by telephonic testimony. Tr. 146- 188.

This IHO was unable to inform Mr. REDACTED where the hearing would be held as the hearing location was out of this IHO’s control as it had to be provided by the Impartial Hearing Office (“IH Office”) although the IHO told Mr. REDACTED she was requesting the hearing be somewhere convenient to the parties – Downtown Brooklyn or Manhattan or with the CSE area of Student’s school in REDACTED and it was necessary that she provide date for the in person hearing to the IH Office in order to get the hearing scheduled. Tr. 138-204; IHO Ex. IV. Time was spent extracting preferred date(s) from Mr. REDACTED as he refused to give this IHO dates that would work for in-person hearing demanding that he be told where the hearing was going to be held first and was uncooperative although the in-person hearing was to be scheduled at his request. Tr. 138-204, see also IHO IV, Emails between IHO and the parties. Mr. REDACTED had to be directed by this IHO to give dates that he and Parent could appear for the merits hearing and he eventually did. Tr. 138-204, see also IHO IV, Emails between IHO and the parties. The IHO worked with the New York State Education Department and the IH Office to secure a physical in-person hearing location, which took a month from this IHO’s initial request for an in-person location. IHO Ex. IV and V.

Following the first hearing date on October 27, 2023, two more merits hearing dates were held on the virtual platform per the agreement of both parties.

Parent presented evidence placed into the record and presented three witnesses: Parent REDACTED REDACTED (“Mother”)(affidavit and cross-examined), Dr. REDACTED (“REDACTED”) (testimony via affidavit not cross examined), the neuropsychologist that conducted an independent evaluation of Student dated June 29, 2020 and REDACTED (“REDACTED”), REDACTED Head of REDACTED at REDACTED (affidavit and cross-examined).

Two exhibits were entered into evidence from the District the December 2021 IEP for Student and a subpoena duces tecum served on District’s rebuttal witness, REDACTED (“REDACTED”), Comptroller of REDACTED, who appeared pursuant subpoena. IHO Ex. VI. REDACTED’s testimony was on the record and he was cross-examined.

A list of the documentary evidence submitted is appended to this Order.

The parties both submitted written closing memorandums. IHO Ex. I and II.

The record was closed on January 21, 2024 and this Finding of Facts and Decision is issued 6 days past the compliance date due to this IHO falling ill and inability to complete Finding of Facts and Decision by the compliance date of January 21, 2024. Compliance dates were extended per the parties request due to the parties attempt to settle the matter and then to have the in-person hearing requested by Parent, witness availability, have all witnesses appear, the extensive testimony and procedural and substantive issues in the case and submission of closing memorandum.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

BACKGROUND

Student is a REDACTED-old girl diagnosed with a specific learning disorder with impairment in reading (dyslexia – moderate severity) and impaired written expression (mild severity). P Ex. H-10. She has high cognitive potential but before placement at REDACTED in 2020 had performed well below grade level and struggled academically due to her learning impairments. P Ex. H. Student was also assessed for an attention disorder due to her executive functioning issues, lack of focus in the classroom and some impulsivity, but no “formal attention disorder” was found indicated and in REDACTED’s updated she makes no mention of concerns regarding attention orders or recommending further evaluations for such disorder. P Ex. H and Q.

Student was originally unilaterally placed by Parents at REDACTED in September of 2020. P Ex. A-B, P -R. Parent has continued to unilaterally place Student at REDACTED each year since 2020-2021 school year and in this proceeding seeks funding/reimbursement for a 10-month school year at REDACTED for the 2022-2023 school year. P Ex. A-E, R; IHO Ex. I and II.

Prior to hearing on the merits, the issues were narrowed to examination of Prong 2 and 3 under a Burlington/Carter analysis. Tr. 57-203. The District conceded it could not prove it provided a FAPE under Prong I. The gravamen of the issue disputed by the parties that emerged at hearings and conference following the breakdown of the settlement negotiations was the issue of whether Parents were entitled to tuition reimbursement that included the religious components of the student’s program at REDACTED. Parents asserted that Carson v. Makin, 142 596 U.S. 797, 142 S. Ct. 1987 (2022) and the New York State Education Department (“NYSED”) State Review Office (“SRO”) Decision No. 23-133 (“SRO 23-133”) eliminated any equitable basis for reducing tuition reimbursement due to any religious content in Student’s program. The District vigorously disagreed with this position and asserted that neither Carson nor SRO 23-133 was controlling; the District asserted 23-133 was wrongly decided and not binding precedent in this matter and asserted tuition reimbursement should be reduced anywhere up from 14.39% to 18.49% due to the religious instruction and nature of certain classes and programming for Student at REDACTED. The District did not take a position on Prong II but the burden of proof is on Parent with regard to the appropriateness of the unilateral placement.

ISSUES

1. Did the District Offer Student A FAPE for the 2022-2023 school year (Prong I)?

2. If there was a deprivation of FAPE for the 2022-2023 school year, was Parents’ unilateral Placement at REDACTED result in an appropriate placement (Prong II)?

3. Are Parents’ claim supported by equitable considerations (Prong III)?

4. Is Student entitled to door-to-door Special education transportation during the 2022-2023 school year and reimbursement for any costs of door-to-door transportation based upon her unique needs?

PARENTS’ POSITION

Parents contend the following:

Student was denied a FAPE for the 2022-2023 school year due to failure to provide an appropriate program and placement for the Student. Student’s program was appropriate, and Parents are entitled to full tuition reimbursement. Tr. 231-232; IHO Ex. II.

District conceded Prong I and therefore Parents seeks a finding District failed to offer a FAPE to Student. Tr. 231-232;P Ex. A-B; IHO Ex. II.

Parents seek a finding that the Student is entitled to round-trip, door-to-door special transportation to and from school and reimbursement for all out-of-pocket expenses Parents incurred for transporting Student to and from REDACTED. IHO Ex. II.

The unilateral placement at REDACTED was appropriate for the 2022-2023 school year (Prong II) because the evidence shows that the unilateral placement at REDACTED met Student’s special education needs and was “reasonably calculated” to enable [Student]” to receive educational benefits and District did not raise any Prong II issues. Tr. 231-232; IHO Ex. II, citing Frank G. v. Board of Educ. of Hyde Park, 459 F. 3d 356, 364 (2d Cir. 2006). IHO Ex. II.

The equities favor Parents (Prong III) due to their cooperation with the District. IHO Ex. II.

A reduction of a percentage of tuition reimbursement because of the “notion of a religious component to the school program” is not an allowable reason to reduce tuition reimbursement under Prong III as the case of Carson v. Makin, 142 596 U.S. 797, 142 S. Ct. 1987 (2022), Espinoza v. Montana Department of Revenue, 591 U.S. __, 149 S. Ct. 2246 (2020) and the New York State Education Department (“NYSED”) State Review Office (“SRO”) Decision No. 23-133 (“SRO 23-133”). IHO Ex. II. SRO 23-133 involved a due process complaint in which parents sought full reimbursement for a unilateral placement at a Jewish sectarian school and were granted full reimbursement after the SRO applied Carson to the facts in that matter found that Carson precluded the reduction of tuition reimbursement and parents were entitled to full reimbursement. Tr. 230-233; IHO Ex. II. Carson and SRO 23-133 are directly parallel to the facts herein and the same analysis applies, therefore the reduction of any tuition award due to the “purported religious aspects” of REDACTED’s curriculum should be rejected by the IHO. Tr. 230-233; IHO Ex. II.

The District failed to prove REDACTED is a “religious school” or that the classes or periods the District asserts are religious instruction or worship were proven to be so, and therefore, there is no basis for the District’s argument that Student tuition should be reduced. IHO Ex. II. “Academics are integrated throughout the curriculum and that elements of the REDACTED program that could be considered ‘religious’ include academics as well” and children at REDACTED are being deprived of any educational elements when religious classes are taking place. IHO Ex. II.

An IHO does not have the authority to reduce tuition due to the religious nature of a program and therefore the IHO in this matter lacks authority to render a determination on the issue of tuition reduction related to the religious content in Student’s classes. Tr. 232; IHO Ex. II.

DISTRICT’S POSITION

District contends the following:

District conceded Prong 1 of the Burlington/Carter analysis of unilateral placements, i.e., admission that it could not meet its burden that it provided Student a FAPE for the 2022-2023 school year). Tr. 229; IHO Ex. I, District’s Closing Memorandum. District did not present a position on Prong 2.

Under Prong 3 of Burlington/Carter due to the religious instruction and content in Student’s 2022-2023 program at REDACTED tuition reimbursement should be reduced by 14.38% to 18.49% and in closing specified that 14.38% of Student’s program was 100% not allowable as prohibited religious instruction or worship and under the First Amendment such reduction is required as the remedy of reimbursement constitutes a use of public moneys for funding religious instruction or prayer and would be a violation of the Establishment Clause of the First Amendment. Tr. 230; IHO Ex. I. The Carson and Espinoza decisions are not applicable to the case herein SRO 23-133 is “profoundly flawed” and under appeal and the IHO should not follow its logic and is not bound by an SRO decision. Tr. 231-233; IHO Ex. I.^[2]

The IDEA mandates a prescribed funding mechanism that never places public funds at the direction of individual parents which is distinguishable from the Supreme Court case of Carson v. Makin and related determinations in which the Court found state programs that directly subsidize parental choice of placement of Students in private schools was an allowable dispersible of government funds under the Constitution. IHO Ex. I. Carson and similar cases are distinguishable from the case at hand because the IDEA is a dispersal of public-school funds and the use of funds is strictly governed by Congress’s spending power, and under IDEA funding, the dispersed funds are never subject to the authority, power, or control of Parents; therefore, the analysis in Carson is not applicable to determine the issues of the equities and reduction of tuition reimbursement in this matter. IHO Ex. I.

The distribution of funds for religious education or worship under the IDEA may not be delegated to Parents per the IDEA funding scheme. IHO Ex. I. A Burlington/Carter remedy does not confer or allow for the independent choices of benefit recipients. IHO Ex. I. Pursuant to the Supreme Court in Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1993) provision of related services to a disabled student enrolled in a parochial school was not a violation of the Establishment Clause per se, but Zobrest found that Establishment Clause cases are to be viewed coterminous with the prohibitions imposed by the Secretary of Education by 34 C.F.R. § 76.523, which prohibit the use of direct federal funds in state distributed public grant programssuch as the IDEAas opposed to parental choice programs where the monies are distributed per the parents’ choice and direction. IHO Ex. I.

District asserts that Zobrest and the state Court of Appeals case Grumet v. Pataki, 93 N.Y.2d 677, 720 N.E.2d 66 (1999) are clear that while that the use of public funds under the IDEA to pay for secular neutral purposes at a religious school is not barred and not inconsistent with the Establishment Clause or the State laws and public funds may be directed to a religious school for a neutral purpose, the funds may not the expenditure of public funds in direct funding programs for sectarian, religious instruction of indoctrination, i.e. religious purposes. IHO Ex. I.

The prohibition on the use of public funds for public school programs that have a purpose of indoctrination or religious teaching continues to stand after Carson and even if a religious instruction class has a “dual use” such as transferrable skills for the benefit of the student that does not absolve the class of its religious character that may not be funded by direct grants of public monies for public education or entitlement to funding of a religious instruction class to treatment just because there is a secular benefit under the IDEA scheme regarding an individual Student’s program. IHO Ex. I. There must be a reduction in tuition reimbursement for the portion of the program that is religious in character as neither the Parents may direct IDEA funds towards religious instruction or worship nor may an IHO allocate reimbursement monies to a religious purpose that violates the rules of the Secretary of Education and the Constitution’s Establishment clause. IHO Ex. I.

FINDINGS OF FACT

The following are my findings of fact on all testimony and documentary evidence presented in this matter. I incorporate into these findings of facts the sections above referenced as “Introduction and Procedural History” and “Background” as part of my Findings of Fact.

Student is a REDACTED girl with an undisputed District classification of Learning Disability. D Ex. 1;P Ex. F-1. She was diagnosed in 2020 with Specific Learning Disorders: (a) with impairment in reading (Dyslexia – moderate severity) and (b) impaired written expression (mild severity). P Ex. H-10, 2020 Neuropsychological Evaluation (“2020 Neuropsych Eval”). Student’s Full-Scale IQ (“FSIQ”) composite score in 2020 was 111 in the 77% and described as “High Average.” P Ex. H-14. Dr. REDACTED (“REDACTED”), who diagnosed Student in 2020, gave an update regarding her 2020 Report via affidavit following review of Student’s 2022-2023 Progress Reports from REDACTED and her IEPS and discussions and/or correspondence with Mother and REDACTED (“REDACTED”), REDACTED Head of REDACTED at REDACTED. P Ex. Q. REDACTED testified in the affidavit her “findings and recommendations in her 2020 Neuropsych Eval” were “overarchingly” still valid and the recommendations remained appropriate. P Ex. Q-2.

Student’s diagnosed disorders impact her ability to access education and create learning challenges. P Ex. H, P and Q. REDACTED found in 2020 Student required a placement in a small (less than 15 students) special education classroom in a full-time special education school designed for students with language-based learning impairments that uses a variety of evidence-based and multisensory techniques and 1:1 assistance so Student may access her educational curriculum and ensuring academic, social, and emotional progress, she continued to recommend such a placement for the 2022-2023 school year and that REDACTED fulfilled this recommendation. See P Ex. H and Q.

Student attended preschool and Kindergarten at the REDACTED (“REDACTED”), a Jewish REDACTED School. P Ex. F-1, H-1. While in Kindergarten at REDACTED, Student received some speech-language therapy (“SLT”) and (“OT”) through an Individual Education Services Program (“IESP”) and special education supports offered by REDACTED of three sessions a week with a literacy specialist. P Ex. F and H. But Student struggled at REDACTED and Parents REDACTED evaluate the Student. P Ex. A, F and H. Parents provided the evaluation to the District and informed the District they sought public education services and an Individualized Education Program (“IEP”) for the 2020-2021 school year. P Ex. A and F.

An IEP meeting was held in 2020 and Parents did not agree with the District’s 2020 IEP or placement. P Ex. A, B, F and R. Parents unilaterally enrolled Student at REDACTED for the 2020-2021 school year and filed a DPC alleging denial of FAPE. Tr. 276-282; P Ex. A, B, F and R. Since that time Parents have continued to enroll Student at REDACTED each year as a unilateral placement and filed a DPC for each year through 2022-2023. P Ex. C-F, P-R; IHO Ex. III, Pendency Order Case No. 243642.

Mother testified that Parents originally chose REDACTED in 2020 because of the belief it was the “best school” for the Student, the lack of alternatives, a fit for the Student due to her needs, location, schedule, and hours, and the fact that it was a Jewish school that offered prayer (an “added bonus”). Tr. 280-282. Mother did not testify if any other unilateral placements were considered for the 2020-2021 school year, and after 2020-2021, Parents did not consider other unilateral placements. Tr. 273-282.

The relevant IEP meeting held prior to the 2022-2023 school year occurred on December 1, 2021. D Ex. 1; P Ex. F and R. Parents did not agree with the program in the December 2021 IESP. P Ex. A, F and R. They also did not agree with the placement offered for the remainder of the 2021-2022 school year following the December 2021 IEP meeting. P Ex. A, F and R.

Parents re-enrolled Student at REDACTED for the 2022-2023 school year and signed the Re-enrollment Contract on or about February 6, 2022. P Ex. I, “REDACTED Contract.” The contracted tuition was $70,700.00. P Ex. I. Parents paid a $5,000.00 non-refundable deposit. P Ex. I. To date, from the documentation provided and Parents testimony Parents appear to have paid all of the contracted tuition due for the 2022-2023 school year. Tr. 285-286; P Ex. I. The REDACTED Contract states the remainder of any payments made prior to September 14, 2022 would be eligible for refund if Parents withdrew Student due to acceptance of a placement in a public-school class or New York State Approved non-public school (“NPS”). P Ex. I-2. The District did not provide notice of a public-school placement for the 2022- 203 school year prior to the beginning of the school year. P Ex. F. Parents notified the District they were continuing Student’s unilateral placement at REDACTED for the 2022-2023 school year pursuant to a Ten-Day Notice letter dated August 23, 2022 (“TDN”). P Ex. F and R-8.

REDACTED is a Jewish sectarian school for students with language-based learning disabilities with a stated Jewish mission of teaching students in a “supportive Jewish environment” including “Jewish content, tradition and culture, taught and lived everyday.” P Ex. J-1. During the 2022-2023 school year and prior years, REDACTED regularly provided attorneys representing families pursuing due process complaints or funding for placement at REDACTED under the IDEA a template letter that broke down the portion of the relevant student’s schedule that the REDACTED represented was 100% religious in content if the attorney or advocate requested such letter. Tr. 491-514, 521; D Ex. 2.^[3] It is noted the parties stipulated that the predominant religion of the children that attend REDACTED is Judaism. Tr. 246.

REDACTED is ungraded, and for the 2022-2023 school year Student would have been chronologically REDACTED age. Tr. 321-322; P Ex. R-1. Student struggles with decoding and language and continues to perform below grade level in all core subjects. Tr. 374-384;D Ex. 1;P Ex. L-M and P-9. Student performs better in Math than Reading and Writing but struggles with Math problems and assignments that present more language demands. Tr. 374-384P Ex. L-M, P. Student’s IEP from December 2021 indicated at that time Student was performing at a 1^st grade level in Reading and Writing and a 2^nd grade level in Math; these grade levels were based upon reports from the end of the 2020-2021 school year (June 2021). D Ex. 1-1-3, 20. At the beginning of 2022-2023 school year, Student was unable to read and comprehend texts at her age level or 3^rd grade level. Tr. 374. REDACTED was unable to state for certain student’s grade levels in Reading and Writing at the beginning and end of the school year but inferred from her Progress Reports and her knowledge of the Reading and Writing curriculum that Student’s skill level in Reading varied between the 1^st and 2^nd grade level and at the beginning of the school year Writing at a 2nd grade level. Tr. 374-384. Student progressed during the school year at issue. Tr. 384; P Ex. L-M and P.

REDACTED helps develop the curriculum in all of the academic subjects that she supervises: Art, Physical Education, Music, Occupational Therapy (“OT”), Social Studies, and Science and helps teachers to plan units and lessons that are “pedagogically aligned” to REDACTED’s program and students’ needs in the classroom. Tr. 370, 414-15. Reading and Math curriculum are developed by literacy and math specialists. Tr. 371.

The Jewish Studies curriculum and Hebrew Language class is developed by REDACTED (“REDACTED”), Head of Judaic Studies. REDACTED testified she did not work on developing the curriculum for these subjects overseen by REDACTED .Tr. 370-371, 414-15, 443. REDACTED did not work with the teachers of Judaic Studies or Hebrew Language to plan units and lessons to ensure pedagogical alignment with REDACTED’s language-based learning program. Tr. 370-371, 414-15, 443. She did not know the qualifications of Student’s Judaic Studies teachers or her Hebrew Language teachers. Tr. 384-385, 398-399

Besides having a specific Judaic Studies class (which Student had daily) the purpose of which was religious instruction, Judaic studies is infused throughout the curriculum as “Students engage with Jewish learning and traditions through interactive learning experiences, such as …morning tefillah [a period on Student’s schedule each morning], explorations of Shabbat and holidays and study of the Torah….Judaic Studies is enhanced by the integration of music and the arts.” Tr. 454-457; P Ex. J-K, L-M; Tr. 454-457.

Religious teaching and/or worship are the specific purpose of three courses or subjects in Student’s schedule: Judaic Studies, Prayer and Oneg Assembly. Tr. 492-518;P Ex. J, L-M. Parent stipulated the student’s schedule was true and accurate. Tr. 369.

The record reflects the purpose of the Judaic Studies course is to impart the tenets of the Jewish religion, i.e., indoctrination into Judaism through religious instruction, i.e., teaching and studying the Torah and Jewish practices and traditions. P Ex. J, L and M. Student’s progress reports for the 2022-2023 school year state “Judaic Studies is a time when students experience their Jewish heritage through the study of the Torah and Jewish tradition. Activities are meaningful, interactive and stimulating with the goal of instilling a love for Judaism and a thirst for learning the Torah, Jewish practices and traditions.” P Ex. L-11. Torah is the Jewish Bible. Tr. 257 ^[4] The study of the Torah in Judaic Studies was taught in Student’s Judaic Studies class the traditional manner of Jewish religious instruction by review of Torah parashiot (Torah portions, i.e. sections of the bible) and then class discussions using midrash (rabbinic interpretation).^[5] The method of studying the Torah is Jewish biblical exegesis, i.e. critical explanation or interpretation, as the Progress Reports state the students in Judaic Studies “critical thinking skills” are strengthened through class discussion and Torah study.^[6] P Ex. L and M.

REDACTED’s documentation details that students are taught how to prepare and observe Jewish holidays throughout the year as part of REDACTED’s Judaic Studies curriculum. P Ex. J, L and M. Student’s period of Oneg /Assembly on Fridays at the end of the day is an assembly religious in content in preparation of observance of the Jewish Sabbath, Shabbat. Tr. 366-367, 455. Prayer period specifically involved group praying in the recitation of prayers in English and Hebrew and Jewish songs and was a period of ten minutes set aside for religious worship daily. Tr. 250-253; P Ex. J.

Hebrew Language is a class that is offered at REDACTED for both secular and religious purposes. Tr. 402. “It’s a second language that is offered for students that is both expansive in terms of their knowledge of languages, but then also connects to the historical Jewish context of our school.” Tr. 402; P Ex. J. Hebrew Language curriculum falls under the umbrella of Judaic studies curriculum as it is overseen by REDACTED, the head of Judaic Studies. Tr. 371, 443; P Ex. J. REDACTED’s program information states “Students gain exposure to key Hebrew vocabulary orally through prayer and from Judaic studies curriculum.” P Ex. J. REDACTED’s program explanation states Judaic Studies is taught primarily in English since as a language-based special education school English remediation is a priority and second languages can be “especially challenging for students with language-based learning disabilities.” P Ex. J.

Student had Hebrew Language twice a week and it was not established how it was determined Hebrew was appropriate for Student considering her language-based disabilities, reading and writing levels and age as REDACTED had no knowledge. Tr. 397-398. REDACTED was not involved with Hebrew language courses and testified she had no knowledge or expertise in determining the appropriate age for children to learn a second language in school, when students with language-based learning disabilities are recommended to learn second languages or how that determination is made at REDACTED. Tr. 393-394. REDACTED could not testify as to the credentials of the “chairperson of the Hebrew Department” or any of Student’s Hebrew teachers and did not know if any specific programming for Dyslexic children or with language-based learning issues was used as the curriculum for teaching Hebrew language. Tr. 401. Although REDACTED testified to no knowledge of what was taught in the Hebrew Language class, she testified there was not a “religious component” to the class but also that she had no know whether any elements of the Torah were used in the class. Tr. 368.

Mr. REDACTED (“REDACTED”), REDACTED comptroller, called as District’s rebuttal witness, testified that Judaic Studies, Prayer and Oneg Assembly were all 100% religious in content. Tr. 491-521;D Ex. 2. During the 2022-2023 school year and prior, REDACTED was authorized to prepare letters for attorneys representing families with due process claims or seeking monies for tuition from the District. Tr. 491-521;D Ex. 2. A letter template was maintained in the Business Office at REDACTED to fill in the relevant classes and percentage of Student’s school day that was “100% religious content” (modified according to the particular student’s schedule, i.e. had the following classes or subjects, Judaic Studies, Prayer, Oneg Assembly depending on age/grade level/Elementary or Middle School level at REDACTED). Tr. 491-521;D Ex. 2. REDACTED testified “the education team has directed the business office with regard to the language” that Judaic Studies, Prayer and Oneg Assembly were 100% religious. Tr. 500.

REDACTED, as a point of contact for dealing with the law firms gathering documentation for tuition funding or reimbursement, testified that some law firms requested such a letter for every student when interfacing with attorneys for requested documentation in relation to due process claims and some firms do not. Tr. 514. Parent’s counsel’s office was not one of the law firms “that necessarily asked for it for every student” but such letter would have been provided for student in this case if it had been requested by Mr. REDACTED. Tr. 514-520.

REDACTED also testified that public monies that REDACTED receives pursuant to New York State administered grants for textbooks may not be used for texts with religious content and a grant for STEM classes may not be taught by a teacher that is also a religion teacher. Tr. 512-518.

REDACTED’s testimony concerning Judaic Studies being an “academic study of religion in which the students’ reading, listening, speaking writing and comprehension skills are addressed” on her affidavit (and repeated in her cross-examination) was unsupported and contradicted by other more credible evidence. P Ex. J, L-M, Q; Tr. 256-257, 320-458; Tr. 512-518. REDACTED’s testimony regarding Judaic Studies being purely “academic” or prayer being simply a recitation of prayer (without a religious purpose) was not believable considering REDACTED’s own description of its program, the Student’s Progress Reports and REDACTED’s credible testimony. P Ex. J, L-M, Q; Tr. 491-520.

REDACTED’s testimony was often contradictory, evasive and circular. P Ex. Q; Tr. 236-260, 320-458. REDACTED testified she was not involved in the development of Judaic Studies or Hebrew Language class, did not have specific knowledge of the teaching methodologies or pedagogy used to create the Judaic Studies curriculum as it was set by REDACTED and that her testimony regarding the Judaic Studies Class was based on her general knowledge of the REDACTED curriculum and supports for students with language-based disabilities that REDACTED purports to use throughout the school. Tr. 236-260, 320-458. Yet, she testified about how she “thought” REDACTED’s teaching methods for reading and writing extended into Judaic Studies and gave examples based on conjecture from her general knowledge and review of the Progress Reports for Judaic Studies class for Student. Tr. 236-260, 320-458. REDACTED admitted no specific knowledge of the Judaic Studies class and that her testimony was based on generalizations from her experience and knowledge as to teaching methods and academic supports at REDACTED as part of REDACTED’s the leadership team. Tr. 236-260, 320-458. REDACTED would not answer questions as to whether the Prayer period was “religious worship” after testifying the children recited Jewish prayers and songs in Hebrew at that time and attempted to characterize the Prayer period as “religious practice” without explaining how that would be different from worship. Tr. 236-260, 391-392, 452.

Therefore, REDACTED’s testimony on the subjects related to Judaic Studies, Prayer, Oneg Assembly and Hebrew Language undercut her credibility and evidenced she took cues from Parent’s counsel who constantly objected and interrupted proceedings with needless objections and statements that telegraphed the position that these subjects and periods were not religious instruction or worship.^[7] Tr. 236-260, 320-458.

Considering REDACTED testified she wrote her affidavit independently and submitted it to Mr. REDACTED yet it contains a description of the class as “academic” and she meant that the class was simply an informational “summative” class, the other evidence (such as REDACTED’s testimony) in the record undercuts the notion that REDACTED came to write the affidavit in this manner without prompting. P Ex. Q and Tr. Tr. 236-260, 320-458. Therefore, these descriptions related to religious content in REDACTED’s affidavit appear coached and can only be described as misleading and an attempt to describe the class as other than the purpose it is offered for, religious instruction and worship. Tr. 344. Thus, the affidavit and REDACTED’s attempt to support this language regarding the purpose or academic nature of the Judaic Studies class is not credible and taints REDACTED’s testimony.

Mother’s cross-examination was also marked by a similar evasiveness as REDACTED and was hampered by her counsel’s constant objections to relevant areas of cross examination. Tr. 273-286. While it was clear the issue was whether Parent considered any school other than REDACTED for unilateral placement (at any time, including the initial placement in 2020), Parent avoided answering this question through Mr. REDACTED’s many interruptions. Tr. 273-286.

CONCLUSIONS OF LAW

1. General Law Regarding the Purpose of the IDEA and the Framework For Its Implementation

The IDEA’s primary purpose is to ensure that children with disabilities “have available to them a free appropriate public education ("FAPE")” with “special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.” 20 U.S.C. § 1400(d)(1). Congress’s intent in enacting the IDEA as stated by the Supreme Court was “to bring previously excluded handicapped children into the public education systems of the States and to require the States to adopt procedures which would result in individualized consideration of and instruction for each child” and was “to open the door of public education to handicapped children on appropriate terms.” Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 189 and 192 (1982). A FAPE consists of specialized education and related services required by a disabled child to benefit from specialized instruction that is “provided at public expense, under public supervision and direction, and without charge,” that meet a State’s educational standards, designed to meet a student’s unique needs, and provided in conformity with a comprehensive written individualized education program (“IEP”). 20 U.S.C. § 1401(9), (26), (29);34 C.F.R. §§ 300.13, 17; Endrew F. v. Douglas County Sch. Dist. RE-1, 580 U.S. 386, 390, 137 S. Ct. 988, 999, (2017).

A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP is developed through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. Rowley, 458 U.S. at 206-07 (1982). An IEP is designed as a “written statement” that addresses the educational needs of a child with a disability. 20 U.S.C. § 1401(14); 34 C.F.R. § 300.323 (a); see also, Cerra v. Pawling Cent. Sch. Dist., 427 F. 3d 186 194 (2d Cir. 2005).

To meet its substantive FAPE obligations, an LEA must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F.,137 S.Ct. at 999. A focus on the particular child is at the core of the IDEA. Id. at 999. The instruction offered must be “specially designed” to meet a child’s “unique needs” and are reasonably calculated to enable the child to receive educational benefits. Id.; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir. 2007); see also, 20 U.S.C. § 1401(9). The IEP must be “likely to produce progress, not regression” and afford the child an opportunity “greater than trivial advancement.” T.P. ex rel. S.P. v. Mamoroneck Union Free Sch. Dist., 554 F. 3d 247, 254 (2d Cir. 2009). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. 8 NYCRR § 200.5[4]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000).

The failure of a school district to provide a FAPE for a disabled student may arise out of substantively inadequate or inappropriate IEP and/or placement (Rowley, 458 U.S. at 192) and/or procedural inadequacies that (i) "impeded the student's right to a free and appropriate education," (ii) "significantly impeded parent's opportunity to participate in the decision-making process regarding a free and appropriate public education to parent's child" or (iii) "caused a deprivation of educational benefits." 8 N.Y.C.R.R. § 200.5(j)(4)(ii).

The IDEA creates a framework for the delivery of a FAPE to children with disabilities through the local education agency (“LEA”) who is charged with delivery of a FAPE to children with disabilities (those children that are classified as disabled under the IDEA, i.e., meet eligibility requirements) residing within in the LEA boundaries through the public education system. 20 U.S.C. § 1412(a)(1)(A). To receive IDEA funding from the Federal government, States must make a FAPE available. 35 C.F.R.§§ 300.100, 300.101.

The IDEA creates the framework of the state-wide obligation to deliver a FAPE through delivery by the LEAs tasked with creating and implementing an IEP for a student classified as disabled. 20 U.S.C. § 1412(a)(1)(A), (d)(1)(B). The IEP is the “centerpiece of the statute’s education delivery for disabled children.” Endrew F. S. Ct. at 999-1000, citing Honig v. Doe, 484 U.S. 305, 311(1988). Parents are involved with creating the IEP as members of the IEP team and meaningful parental participation. However, an LEA is ultimately responsible for offering an appropriate IEP and placement. 20 U.S.C. § 1412(a)(10)(B).

Following creation of the IEP the LEA is also tasked with placement of the student in accordance with the IDEA’s requirement that the State provide for publicly funded “continuum of alternative placements” that meet the needs of disabled students. 35 C.F.R.§ 300.115. The continuum of placement options in New York includes public schools, boards of cooperative educational services (“BOCES”), New York State-approved day and residential schools (“NPS”), and home or hospital instruction. When an LEA chooses to place a child in an NPS IDEA regulations impose oversight obligations on the State Educational Agency (SEA) and LEAs. 20 U.S.C. § 1412(a)(10)(B);34 C.F.R. §§ 300.145-147, 300.325.

Entitlement to the full delivery of a FAPE under the IDEA only comes into play when Parents choose the State and LEA’s free public education options.^[8] The IDEA does not require an LEA to pay for the cost of education, including special education and related services, of a child with a disability if that agency made a FAPE available to the child and parents choose to place the disabled child in a parentally placed private school. 20 U.S.C. § 1412(a)(10)(C)(i);34 C.F.R § 300.137(a) (“No parentally placed private school child with a disability has an individual right to receive some or all of the special education and related services that the child would receive if enrolled in a public school.”).

Both the New York State Education Department (NYSED) and the District (the LEA in this matter) are bound by federal regulations that prohibit the use of IDEA funds for “[r]eligious worship, instruction or proselytization.” 34 C.F.R.§ 76.532; see also, M.L. v. Smith, 867 F. 3d 487, 496 (4^th Cir. 2017), cert denied, 138 S. Ct. 752 (2018)(“Federal regulations support the conclusions that States may not use IDEA funds to provide religious and cultural instruction.). Even where an LEA provides services to “parentally placed” children shoes families have chosen religious school, the IDEA requires the funds used for the provision of equitable services shall be only used for “[s]ecular, neutral, nonideological” special education and related services.” 20 U.S.C. § 1412(a)(10(A)(vi)(II).

2. Law Related to Parental Claims of Denial of FAPE and the Remedy of Unilateral Placement.

If a Parent believes that an LEA has failed to provide a FAPE, the parent may file a due process complaint (DPC). Hardison v. Bd. of Educ. 773 F. 3d 372 (2d Cir. 2014). A parent may “unilaterally enroll the child in a private school and seek tuition reimbursement from the school direct” through a DPC. Id at 376. When a parent removes the student from the “public placement” and unilaterally changes student’s placement without the consent of state or local officials, [they] do so at their own financial risk.” Florence County Sch. Dist. Four v. Carter, 510 U.S. 7,15 (1993).

Courts have determined the remedy of reimbursement and/or direct funding of tuition and related expenses may be granted by an Impartial Hearing Officer (IHO) when a Parent unilaterally places a disabled student in a private school after a denial of FAPE by a school district, if determined appropriate under the IDEA pursuant to satisfaction of what is known as the Burlington/Carter test. Sch. Comm. Of Burlington v. Dep’t of Educ., 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993).

Pursuant to Burlington and Carter, a three prong Test was created and is now commonly applied in cases where the question of whether reimbursement or direct funding for payment for educational services and/or related services obtained by a student upon unilateral placement by his or her parents is an appropriate remedy. M.P.G. ex rel. J.P. v. New York City Dep't of Educ., 2010 WL 3398256 (S.D.N.Y. Aug. 27, 2010); R.K. ex rel. R.K and S.L v.New York City Dep't of Educ., 56 IDELR 168 (E.D.N.Y. Jan 21, 2011). The “three-prong” analysis is as follows: (1) Prong I- the school district’s services, IEP and/or placement offered to the student are inadequate, inappropriate or improper, i.e., the district failed to provide student a FAPE; and (2) Prong II -the alternative private educational services obtained by the parents are appropriate. Carter, 510 U.S. at 12; Burlington v. Dep’t of Educ., 471 U.S. at 369-370. If a school district fails to meet their burden of proof that they offered a student a FAPE (Prong I) and the unilateral private placement is appropriate (Prong II), then under Prong III, administrative review officers and courts are required to evaluate the equities in considering the claim for tuition funding. Carter, 510 U.S. at 12; Burlington, 471 U.S. at 467; see also, Cohen v. N.Y.C. Dep’t. of Educ., 2023 U.S. Dist. LEXIS 171815 *10 (S.D.N.Y. Sept. 26, 2023).

In Burlington, the Court found a congressional intent in the IDEA for retroactive reimbursement to parents by the public schools as an available remedy. Burlington, 471 U.S.at 370-71; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 (2d. Cir. 2007). The Second Circuit has held that direct payment fits the Burlington-Carter framework because direct payment “merely requires [a District] to belatedly pay expenses that should have been paid all along and would have been borne in the first instance.” E.M. v. New York City Dep’t. of Educ., 758 F. 3d 442, 453 (2d Cir. 2014)(citing Burlington, 471 U.S. at 370-71.)

To meet the Prong II burden, parent(s) must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the student” and is “reasonably calculated to enable the child to receive educational benefits.” Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 2007 WL 2982269 (Oct. 15, 2007). However, the private school placement “need not meet the definition of a free and appropriate public education” or “state education standards or requirements” of appropriateness. Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d. Cr. 2006). While parents are not under the same requirements for placement of their child as the DOE, parents must demonstrate that the “services are necessary to permit the child to benefit from instruction” Gagliardo, 489 F.3d at 112; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2^nd Cir. 1988).

No one factor is necessarily dispositive in determining whether a parent’s unilateral placement is reasonably calculated to enable a student to receive educational benefits as required to determine “appropriateness” under Prong II. Frank G., 459 F.3d at 364.” 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 services a child’s individual needs.” Id. To qualify for reimbursement a parent does not need to show a private placement furnishes every special service necessary to maximize their child’s potential and placement does not have to be perfect to be appropriate under Prong II but must be reasonably calculated to enable child to receive educational benefit. Id; Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 84 (3d. Cir. 1999); “They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child” and “supported by services as are necessary to permit the child to benefit from instruction.” Frank G., 459 F.3d at 364; see also, Walczak, 142 F.3 at 130.

Funding of a unilateral placement, whether by reimbursement or direct funding, is equitable relief that an administrative officer or court may grant. Cohen v. N.Y.C. Dep’t. of Educ., 2023 U.S. Dist. LEXIS 171815 *16-17; see also, D.R. by and through R.R. v. Redondo Beach Unified Sch. Dist., 56 F. 4^th636, 647 (9^th Cir. 2022).

In an examination of the equities under Prong III, an examination of the actions of the parents and school district is made by the decisionmaker examining a variety of factors. In 1997, the IDEA was amended to partially codify the Burlington/Carter test and remedy of reimbursement for unilateral placement. 20 U.S.C. § 1412(a)(10)(C). The IDEA sets forth a number of factors that should be examined in evaluating the equities in assessing whether reimbursement or funding of the unilateral placement should be reduced or denied as follows: (i) parents failed to provide the District with timely notice – either at the IEP meeting or at least 10 business days before removal of the Student from public school – of their rejection of the proposed public placement by the public agency, including stating their concerns and intent to enroll student in a private school at public expense; (ii) prior to the student’s removal, the District informed the parents of its intent to evaluate the student, but the parents did not make the Student available for evaluation, and (iii) whether the actions taken by parents were unreasonable, (iv) whether the cost of private placement is unreasonable. 20 U.S. C. § 1412(a)(10(C)(iii) (I – III).

The courts have stated a hearing officer, or a court is not limited to the equitable factors enumerated in 20 U.S.C. § 1412(a)(10(C)(iii) in determining whether the remedy of funding the unilateral placement is warranted or should be reduced and the Supreme Court directs the decision maker should examine and consider “all relevant factors” without a specific limitation when weighing the equities. Forest Grove Sch Dist. v. T.A., 557 U.S. 230, 247 (2009); see also, J.T. v. Dept. of Educ., State of Hawaii, 72 IDELR 95 * 8(D. Hawaii 2018). Any consideration of the equities must consider the reasonableness of both parties’ conduct, and the circumstances. J.L. v. N.Y.C. Dep’t of Educ., 15-CV-1200(CBA)(RER), 2016 WL 6902137 at *8 (S.D.N.Y. Nov. 22, 2016); Wolfe v. Taconic-Hills Cent. Sch. Dist., 167 F. Supp.2d 530, 534 (N.D.N.Y. 2001).

Other factors the courts have discussed that may be taken into equitable consideration include: (a) whether there was a lack of parental cooperation with the school district, (b) whether the cost of the private placement is unreasonable, (c) the existence of more suitable placements, (d) the effort expended by parents in securing alternative placements, (e) whether the student’s parents’ chose the private placement for reasons unrelated to meeting the student’s educational needs and related needs necessary to learn, (f) the student’s lack of progress; (g) fraud or collusion on part of parent and private school; (h) any scholarships or grants awarded Student; (i) no indication the parents ever intended to return their child to a placement offered by the school district; (j) the unilateral placement provides services beyond those required to meet the Student’s needs or provides some things that do not meet educational needs at all, i.e. overly expansive services; (l) the parties’ compliance or noncompliance with State and Federal regulations; and (m) the reasonableness of the parties’ positions. Carter, 510 U.S at 16; L. K. v. New York City Dep’t of Educ., 674 Fed. App’x 100, 101 (2d. Cir. Jan. 19, 2017); E.M., 758 F. 3d at 461; Werner v. Clarkstown Cent. Sch Dist., 363 F. Supp. 2d 656 (S.D.N.Y. 2005); J.S. v. Scarsdale Union Free School Sit., 862 F. Supp.2d 635, 675 (S.D.N.Y. 2011); J.L., 2016 WL 6902137 at *8; Wolfe, 167 F. Supp.2d at 534; C.B. v. Garden Grove Unified Sch. Dist., 635 F. 3d1155, 1160 (9^th Cir. 2011); Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F. 2d 1153, 1161 (5^th Cir. 1986); J.T., 72 IDELR 95 at 8, 16-18 (D. Hawaii 2018)

The burden proof is on the school district during an impartial hearing under the IDEA or New York State Education Law and attendant regulation, except that a parent seeking tuition reimbursement or funding for a unilateral placement has the burden of proof regarding the appropriateness of the unilateral placement. N.Y. Ed. Law § 4404(1)(c); Hardison v. Bd. of Education of Oneonta City School Dist., 773 F.3d 372, 386 (2d Cir. 2014); R.E. at 184-85;see also, M.P.G. v. New York City Dep’t. of Ed., 2010 EL 3398256 at *7 (S.D.N.Y. 8/27/2010).

ANALYSIS

As an initial matter, an Impartial Hearing Officer (IHO) has jurisdictional authority to address the matters in this case. Parents assert if following determination of Prong I and Prong II wherein the District failed to meet their burden under Prong I and the unilateral placement is deemed appropriate under Prong II it is not within the realm of an IHO’s jurisdictional authority to make a determination as to whether the tuition can be reduced due to the religious instruction and worship portion of Student’s curriculum at REDACTED due to the fact this is a First Amendment question outside of the scope of an administrative hearing officer’s purview. This is incorrect and an IHO has full authority to hear and decide the issues herein.

Parents rely on no judicial or binding legal authority for this supposition and their assertion that a reduction in tuition is beyond an administrative officer’s purview. As cited in the case law above, under both the language of the IDEA and Federal Courts, administrative review officers are required to evaluate the equities in considering a tuition reimbursement or funding claim and should examine and consider “all relevant factors” without a specific limitation when weighing the equities. Forest Grove Sch Dist. v. T.A., 557 U.S. 230, 247 (2009); Carter, 510 U.S. at 12; Burlington, 471 U.S. at 467; Cohen v. N.Y.C. Dep’t. of Educ., 2023 U.S. Dist. LEXIS 171815 *10. Further, the Second Circuit has instructed and directed that the IDEA allows a hearing officer to fashion an appropriate remedy and grant relief as determined appropriate via the broad spectrum of relief contemplated in the IDEA. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d. Cir. 2008); E.M., 758 F. 3d at 453-54.

Further, the statement in SRO 23-133 that “issues of this nature are more appropriately resolved by courts” is neither binding on an IHO nor actually a statement by the SRO that examining tuition reduction due to religious instruction or worship is beyond an administrative officer’s authority; in fact the State Review Officer that decided SRO 23-133 did not believe they were circumscribed from rendering a decision on whether tuition was fully reimbursable due to the religious content of the program and note that there are many SRO decision that reviews IHO decisions on this very topic and has never stated an administrative officer has no authority to make weigh the equities on such an issue. IHO Ex. II, P. 14; SRO-Appeal No.23-133, p.6-7.

SRO 23-133 is not binding on this Impartial Hearing Officers as the decisions of the SRO shall not constitute binding precedent in any judicial action, proceeding or administrative appeal in any forum whatsoever. 8N.Y.C.R.R. § 279.12. I do not find SRO 23-133 persuasive per my analysis of relevant law and Carson v. Makin with its related line of cases are not applicable to Parents’ entitlement to tuition reimbursement or funding as discussed below under my analysis of Prong III.

1. Prong I- The District Did Not Sustain Its Burden Of Proof Student Was Offered A FAPE for the 2022-2023 School Year.

I find District did not bear its burden of proof that it offered Student a FAPE for 2022-2023 school year. In this case, District stated it “conceded” Prong I and, as such, failed to meet its burden under Prong I that it offered Student a FAPE.

For these reasons, the District failed to carry its burden of proof under Prong I for the school year at issue, and I will continue with a Prong II analysis.

1. Prong II -Appropriateness of Parents’ Placement Under the Second Prong of Burlington/Carter

The Parents bear the burden of proving the appropriateness of REDACTED where Student was unilaterally placed for the 2022-2023 school year. The Student’s Progress Report covering January 2022 and June 2022 was provided as evidence. See P Exs. L and M. The testimony of Parents’ witnesses and the Parents’ documentary evidence indicate Student the made meaningful progress in the individualized program and supports and services she received at REDACTED during the 2020-2021 school year, and the program contains many of the components recommended by REDACTED in her 2020 Neuropsychological Evaluation and updated recommendation in her affidavit herein discussing regarding the type of program Student needed during the 2022-2023 program and what the evidence supports Student received in her classes and the methodologies used Reading, Writing, Math, Social Studies, Science, Music and Art were tailored to her unique needs (reliably confirmed other than Judaic Studies and Hebrew Learning or religious worship). See Exs. H, J, L-M, P-Q. Therefore, I find REDACTED provided Student with an appropriate educational program that was reasonably calculated to enable Student to receive educational benefits and tailored to Student’s needs.

Judaic Studies class, Prayer and Oneg Assembly all fall squarely within the ambit of religious instruction or religious worship. The record does not contain a preponderance of the evidence that Judaic Studies class, Prayer, Oneg Assembly, or Hebrew Language were appropriate or part of the Student’s program to meet her unique needs or met her unique needs. REDACTED’s testimony established that she did not work with the teachers in Judaic Studies and Hebrew and had no personal knowledge of these classes. As discussed at length in the Findings of Fact herein, REDACTED actually had no direct knowledge of the methodologies or curriculum in Judaic Studies and Hebrew Language. Further her testimony regarding Prayer makes it clear Prayer is not included for any special education purposes. Curriculum development relating to Judaic studies curriculum and Hebrew Language were overseen by REDACTED, who was chair of Judaic Studies which includes Hebrew Language curriculum. REDACTED only offered that the Student would have received the same support for language-based learning disabilities in Judaic Studies that she received in other classes, but REDACTED had no actual knowledge of the class curriculum and how it was specifically designed or tailored for Student. Further REDACTED’s testimony regarding religious content at REDACTED proved itself unreliable.

REDACTED’s own program information raises the issue that REDACTED’s program is a language-based school with English remediation as a priority first and as a second language, can be challenging for students with language-based disabilities states, Parents are informed that Judaic Studies, the study of the Torah will be done in English due to the difficulty many children with language-based disabilities will have with a second language but Parents are assured children will be taught “key Hebrew vocabulary” for prayer orally and in Judaic Studies. As for Hebrew Language class, REDACTED testified more than once she did not speak or understand Hebrew. REDACTED had no idea how it was determined that the Student’s Hebrew Language class was appropriate for her to take twice a week or if a special curriculum for teaching Hebrew to children with language-based disabilities was used. REDACTED did not know if there was a preferred age to begin teaching a second language or if there were concerns regarding teaching a second language to a REDACTED functioning at the first/second grade level in reading and writing due to her language-based learning disability. REDACTED also testified that Hebrew Language was included in the curriculum to advance the study of Judaism. There was no testimony or evidence the Hebrew Language class was for the purpose of addressing programmatically the Student’s unique needs relating to her language-based disability or that it was appropriate for Student to take.

“Prayer” and Oneg Assembly clearly were only religious in nature and had no unique benefit to Student. REDACTED’s testimony that Student would benefit from memorizing prayers in English and Hebrew addressed no unique of Student and was not convincing that these periods were tailored to Student’s needs. There is no tie between Student’s needs or progress and recitation of religious prayers and songs. Oneg Shabbat also was not part of a program that was described in a manner that had anything to do with addressing Student’s needs.

The Judaic Studies class is clearly a class were the purpose is purely for religious instruction and worship. The study of the Torah in Judaic studies is religious worship and instruction in Judaism. Brittanica.com/topic/Torah (Written and fact-checked by the Editors of Encyclopedia Britannica, updated December 28, 2023). REDACTED itself this class admits it is 100% religious. It is unknown why Parents tried to represent differently as it is simply unsupported. This undercuts the reliability and veracity of Parents’ arguments. In the broadest sense “Torah” in Judaism is the “substance of divine revelation to Israel, the Jewish people: God’s revealed teachings or guidance for humankind.” Id. The Supreme Court has stated that“Religious education is a matter of central importance in Judaism…the Torah is understood to require Jewish parents to ensure that their children are instructed in the faith” and “religious instruction ‘is an obligation of the highest order, entrusted only to a schoolteacher possessing “fear of Heaven.” Our Lady of Guadalupe School v. Agnes Morrisey-Berreu, et al., 140 S. Ct. 2049 (2020). In Our Lady of Guadalupe School, a case that dealt with the First Amendment Religion clauses, the Court stated that [t]he contemporary American Jewish community continues to place the education of children in its faith and rites as the center of its communal efforts.” Id.

REDACTED testified that the statement in Student’s Progress Report that “critical thinking skills” was evidence that the Judaic Studies class was tailored to meet student’s unique needs is unconvincing and misleading. Part of the methodology for the Jewish religious study of the Torah through the midrash is the development of critical thinking skills through oral discussions of the rabbinical interpretations, which are taught through debate, discussion, and critical thinking. Critical thinking is endemic to the study of Torah through midrash and how the Torah is traditionally studied for religious purposes. Therefore, this reference to “critical thinking” in the Progress Report and the advancement of critical thinking simply confirms that Torah study is being conducted with the same purpose as traditional Jewish instruction. Putting aside that (the Judaic Studies class is a class that would fall under the umbrella of “religious instruction” as will be discussed in Prong 3 below) there was nothing in the record to support a finding that the class was included in Student’s program due to her unique needs.

The evidence did not demonstrate that Jewish Studies, Hebrew Language, Prayer and Oneg Shabbat were provided in Student’s program to specifically meet Student’s unique needs or met those unique needs, but the majority of Student’s program and schedule provided educational instruction and related services were specifically designed to meet her unique needs and was necessary to permit her to benefit and learn from instruction. Further, Student did progress in her core academic subjects. Therefore, the majority of the program REDACTED designed for Student overall targeted Student’s identified needs and was created to meet Student’s needs and did so. Since the majority of the program met Student’s needs and Student showed progress, weighing the evidence, I find the evidence supports REDACTED was an appropriate placement for the 2022-2023 school year for Student.

1. Prong III-The Equities Favor a Reduction of Full Tuition Reimbursement.
2. The Relief Parent Seeks in Tuition Reimbursement Under the IDEA Is a REMEDY for the District’s Failure to Provide FAPE and Carson v. Makin and the “School Voucher” Line of Cases Involving State Programs that Bestow A Public Benefit of Funds To Individual Parents to Be Used At Private Schools of Their Choice Are Inapplicable to a Parent’s Rights to a Remedy for a failure of provision of FAPE in the public school system under the IDEA

Throughout this matter, the District contends that the tuition for Students at REDACTED for the 2022-2023 school year should be reduced in some amount which it asserted at hearing between 14.38% to 18.49% for the religious instruction and or worship components of Student’s program at REDACTED. Tr. 229-30. In their closing brief the District calculated that prayer, Judaic Studies and Oneg Assembly represented 315 minutes of a 2,190 minutes weekly schedule. IHO Ex. I, p.1. They, therefore, seek a corresponding reduction of tuition reimbursement of the $70,700 tuition of $10,169.18. IHO Ex. I., p.1.

Parents assert that pursuant to the latest case involving state public tuition assistance programs issued by the Supreme Court, Carson v. Makin, 596 U.S. 767, 142 S. Ct. 1987 (2022), Parent is entitled to full reimbursement for Student’s placement at REDACTED and tuition reduction for the portion of Student’s program at REDACTED that included religious instruction and/or worship “would constitute a withholding of government funding solely on the grounds that the school funds are being directed to REDACTED that allegedly incorporates some religious elements into instruction.” IHO Ex. II, p.15. This is an incorrect application of Carson v. Makin.

The issue of whether tuition reimbursement as a remedy for a FAPE violation should be reduced by the portion of a Student’s program at a religious special education school raises the issue of the “play in the joints” between the Religion Clauses in the First Amendment. The First Amendment contains two religion clauses: (a) the Free Exercise Clause prohibits the government from interfering with an individual's free exercise of religion, and (b) the Establishment Clause forbids the government from making any law creating the establishment of religion the government or favoring one religion over another. U.S. Const. Amendment I.

Government programs that directly fund public education or a public school system may not aid any or all religious faiths in the dissemination of their doctrine and ideals. McCollum v. Board of Ed., 333 U.S. 203, 211(1948); Epperson v. Arkansas, 39 U.S. 97, 106 (1968). These are the basic underlying tenants of keeping church and state separate regarding public education and the Establishment Clause.

In tension with the Establishment Clause is the Free Exercise Clause. The Supreme Court has found that Parents who choose to place their children in private schools and are not availing themselves of the public school system may use State-funded grants that supplement education “parental public assistance programs” at sectarian schools. This is not a violation of the Establishment Clause and upholds the interests of the free exercise of religion because these programs are specifically created by states to provide financial assistance if a parent chooses private school. The reason there is no violation of the Establishment Clause is that the parents are making their own choice and the government is only indirectly funding the private schools, sectarian or secular, in a neutral public assistance program. The funds are used outside of the public school system, and to be fair, under the right to Free Exercise of Religion, these programs cannot discriminate against a parent's choice to place their child in a sectarian private school over a secular private school. This is the Carson case and other similar cases such as Espinoza v. Montana Department of Revenue, 149 S. Ct. 2246 (2020)

It is not an issue that funds under the IDEA be directed towards payment for a sectarian special education school or special education services at a sectarian school as a whole if the overarching purpose of meeting a student's unique needs is met. Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1993). But, in Zobrest, the Supreme Court recognized that the prohibition on the use of federal funds for “[r]eligious worship, instruction or proselytization” (34 CFR § 76.532(a)(1)) was a legitimate rule created due to and co-terminus with the requirements of the Establishment clause. Zobrest 509 U.S. 1 FN. 7(1993).

So, the issue of placement at REDACTED is not a question that the overall unilateral placement at the sectarian school is violative of the Establishment Clause. Rather, the question is only when a Parent pursues a remedy under the IDEA for a denial of rights is it or is it not appropriate to examine the program for any programming that is religious worship or instruction and not fund that portion as violative of the Constitution’s Establishment Clause as Parents, in utilizing the remedy of unilateral placement must have agreed to place their child in public school and are availing themselves of a direct public school funding scheme.

Carson involved “a program of tuition assistance for parents” whole local school district did not operate a public secondary school or contract with a private or public entity for such schooling in rural Maine. Carson, 596 U.S. at 771-73. The program directed funds for tuition at the private or public school of the parents’ choice, however Maine prohibited the use of such funds by parents at sectarian schools. Id. at 772-75. The Supreme Court characterized the program as a public benefit program where “[t]he benefit is tuition at public or private school, selected by the parent, with no suggestion that the ‘private school’ must somehow provide as ‘public’ education.” Id. at 782-84. The Supreme Court found the law violated the parents’ rights under the First Amendment’s Free Exercise clause. Id at 785. The Court found “[A] state violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.” Id. The program in Carson and Espinoza involved Maine and Montana’s choice to provide public benefits directly to families to subsidize private school education of the parents’ choosing by scholarship or tuition that are then indirectly paid to the schools by the state government per the parents’choice. In Carson and Espinoza the Supreme Court found that the public benefit programs granting assistance to subsidize payment for parents' chosen private school the states must allow parents to use such scholarships or subsidies (neither were full payment of tuition) to parochial or sectarian private schools as the payment was an indirect payment and the involvement of government is not direct causing an entanglement that would be violative of the Establishment Clause as the choice for directing the subsidy is made by parents. Carson, 596 U.S. at 771-785.

The facts established at hearing and in the record is that REDACTED is a sectarian religious special education school that includes “Jewish learning and traditions” including daily prayer, study of the Torah and Judaism infused throughout the curriculum. The School readily acknowledges a portion of the curriculum is 100% religious in nature and regularly provides letters to attorneys assisting families seeking a remedy under the IDEA to clarify the percentage that is religious versus non-religious for the purpose of reimbursement from the District.

As discussed above in the general discussion of IDEA framework, the Federal government disperses funds to the State and then disperses funds to the District for the purpose of funding public special education programming (or through an approved NPS or program). If a Parent wants to avail themselves of the full range of benefits provided by the IDEA through the develop of an IEP and the LEA’s recommended public placement a Parent is giving up their ability to choose a private of public school of their choice and must cooperate and work with the LEA/District in charge of the public schools that their child would attend. Parents may participate in the IEP process but the LEA/District has final say in the final IEP and placement and Parent has no choice but to be willing to accept the benefits of the IEP and place their child at the school the LEA (here District) in order to receive IDEA benefits. “It is through the IEP that the [FAPE] required by the Act is tailored to the unique needs of a particular child.” Endrew . F, 580 U.S. at 401. “Therefore, for a child to receive the maximum support that the IDEA requires the State provide to eligible pupils, parents have to give up their ability to choose private school and accept the LEA’s placement decision. In sum: accept the State’s offer of a FAPE, give up your choice of private school.” Loffman v. Cal. Dept. of Educ., Case 2:23-CV-01832 * 45 (C.D. Cal. Aug. 9, 2023).

.Funding administered under the IDEA is not subject to the discretion of Parent’s school choice and if Parent removes Student from the placement and program provided by the District the Parent does so at their own financial risk whether the removal and unilateral placement was due to the belief the District failed to provide their child with a FAPE or because they wanted to place Student in a program/school that differs from Student’s pendency placement. Ventura de Paulino v. New York City Dep’t. of Educ., 959 F.3d 519 (2d Cir. 2020); Ferreira and Rojas, et seq. v. NYC Dep’t of Educ., 82 IDELR 228, 123 LRP 9785, 22-Civ.4993 (S.D.N.Y. March 14, 2023).

Also noted, it does not matter when seeking a unilateral placement and prevails on all or some tuition reimbursement. If the parents are seeking direct funding versus reimbursement, they are treated as the same remedial relief that may be granted for Parents' self-help through unilateral placement. Therefore, the fact Parents seeking reimbursement here rather than “direct funding” is not of import as the funding scheme they seek relief funding under is direct governmental funding of public educations. Cohen, 2023 U.S. Dist. LEXIS 171815; Ferreira and Rojas, et seq. 123 LRP 9785.

If a parent believes there has been a denial of FAPE and risked unilaterally placing a student in a private sectarian school that they believed based on the student’s known unique needs programmatically met those needs of the student then parents allowably took such a financial risk and change student’s placement from public to private in seeking a remedy that substitute for the FAPE that student was denied. In such circumstances, parents are confined by the requirements that the private unilateral placement will qualify as appropriate under the requirements of the law and then be subject to the Burlington/Carter analysis. Even if under the Burlington/Carter analysis it is shown a FAPE was denied (Prong I) and the unilateral placement is appropriate (Prong II), parents still may not be reimbursed all or part of the tuition monies they expended or receive the relief of direct funding if it is found under an administrative officer or courts examination of the equities as there is not an entitlement to whole or partial funding or reimbursement under Prong III. In this way the remedy Parents herein may be entitled to under the IDEA for a unilateral placement is not a program for subsidizing private education as in Carson, or Espinoza but simply a remedy available when their child has been denied a free public education to disabled children and Parents decided to avail themselves of the benefits of the IDEA by stating they were willing to enroll Student in a public school program to access and receive the special education benefits created by the IDEA and provided by the State and District. Loffman v. Cal. Dept. of Educ., Case 2:23-CV-01832 * 45.

An award of relief for monies to remedy a denial of FAPE does not encompass or extend to Parents any of the rights in the Carson or Espinoza case, i.e., State funded parental choice programs to allow for subsidies to be paid to parents so they may have assistance if they choose to place their children in private school. These programs in Carson or Espinoza or like “voucher” or subsidy cases exist to supplement parents’ private school choice. Here, no such parental right to use the monies at a private school of parents' choice exists under the IDEA. The remedy of a unilateral placement for denying FAPE a remedy created to address a District’s failure to provide the direct public education required.

As such funds paid out under any relief awarded in the case herein or similar unilateral placement cases are simply a substitute for the public education, it is appropriate to limit the payment of tuition only to exclude religious instruction or religious worship. As previously discussed, the purpose of the regulations barring the State and LEAs from directly funding religious programs as direct expenditure of government funds for public education for religious worship or instruction would violate the Establishment Clause of the United States Constitution. See 34 CFR § 76.532(a); Zobrest, 509 U.S. at 6, FN7.

The chain of funding under the IDEA scheme is the direct payment of public funds to public (or NPS) schools that are subject to the requirements that they not prefer one religion over another and provide funding for religious instruction or worship. When a remedy of tuition reimbursement is awarded, it is awarded under the same IDEA chain of funding, i.e., under a public education scheme in which the unilateral placement is simply a remedy for the denial of the public program and placement Student should have received.

In order for Parent to be eligible for the remedy of unilateral placement they first must be willing to engage in the IEP process and be willing to accept the District’s IEP and placement. The District must make the ultimate decision and offer of program and placement in the public education system. Parent’s “unilateral” placement is not a free unfettered choice program as in Carson and Espinoza. Therefore, the remedy of tuition reimbursement is not part of a scheme and the government’s role in the process is not indirect. Further, a tuition reduction in this instance would not constitute a “withholding of government funding” that violates Parents’ Free Exercise of Religion as asserted by Parents. Parents have availed themselves to enforce the IDEA, the IDEA does not bestow any choice rights on parents and the State and District remain the direct decisionmakers and directors of where public education monies should be directed.

The Burlington/Carter test clearly contemplates limiting reimbursement or denying it altogether for a plethora of equitable considerations that must be examined depending on the particular facts of the case. It is reasonable that the denial of programming that includes or is for religious instruction or religious worship be excluded from tuition reimbursement as Parents never had a right to choose such programming, and the programming is not created to meet a student’s unique needs. Here, it has been established the 100% religious programming at issue and the Hebrew Language class, which has a dual nature although it was not clearly established for the record, have not been proven to meet any of Student’s unique needs or have been created with methodologies or instruction specifically to address these needs. Therefore, it is not reasonable for Parents to expect any reimbursement for such programming.

Parents’ contention that Carson is also applicable “where the DOE appears to be attempting to limit public funding that is generally available to students with disabilities from instructions that it deems religious in nature” is wrongheaded. Under the IDEA scheme and public-school funding, there is no right to “public funding that is generally available to students with disabilities” that is religious in nature. Parents' right to public funding, in this case, is simply a remedy to provide access to the public-school District’s special education resources. The statement that the District “deems the instruction religious in nature” is also wrongheaded, considering the credible testimony from REDACTED and the school’s description of their program as REDACTED itself deems that there is religious instruction. and it is a fact that Judaic Studies, Prayer, and Oneg Shabbat Assembly at REDACTED are religious instruction or worship and, therefore, would not be “generally available” to other students with disabilities. Further, the evidence establishes the Hebrew Language has a religious purpose even though there could be a secular purpose to learning a second language. Hebrew is offered due to REDACTED’s goal of indoctrinating students with religious instruction in the Torah, prayer in Hebrew, and other religious practices.

Parents contention that the “DOE relies on non-public schools to meet its obligations under the IDEA” is incorrect. IHO Ex. II, p.16. It would appear that Parents are asserting that Parents’ self-help remedy of unilateral placement, while recognized as an allowable remedy due to parents’ belief at the time of unilateral placement there is a denial of FAPE, is equivalent to Maine’s choice to pass a law allowing for subsidies for families in rural areas without local public schools. It is not.

There is no evidence in the record that the District is relying on non-public schools because, in this one case, the District could not show they offered a FAPE. That would be a systemic argument and while this IHO cannot rule on systematic claims I note that Parents offered no proof to support such a claim. The right to tuition reimbursement in this place when the Parent has taken the route of “self-help” because of the belief FAPE has not been offered is not an affirmative act by the District to rely on schools like REDACTED as the state legislature in Maine did when passing the law at issue in Carson.

Parents in Footnote 4 of their closing memorandum reference that “the DOE itself approves public funding for special education programs that are affiliated with religions” pointing to the REDACTED which is operated by REDACTED a Roman Catholic High School and a link to the NYSED approved special education NPS list to show it is an NPS. This comparison is irrelevant to the examination of the question of tuition reimbursement for religious instruction/worship. REDACTED itself is a religious school, and the DOE has not raised the issue in this matter with the fact REDACTED is a sectarian school, and there is no assertion that the entire program at REDACTED is inappropriate or could not be used as a unilateral placement because it has a religious component. That is nothing different than the REDACTED operation by a religiously affiliated school, REDACTED. Further examination of the link related to REDACTED does not support that the program at REDACTED has a religious instruction or worship component. See IHO Ex. II, p.16, FN 4.

1. The Record Does Not Support That the Judaic Studies Class, Hebrew Language, Prayer, or Oneg Assembly were created as part of the Student’s Program to Meet Her Unique Needs or Address Those Needs.

Parents did not prove that the Judaic Studies Class, Prayer, Oneg Shabbat, or Hebrew Language advanced any of the student’s special education needs. As discussed above, under Prong II and in Prong III (A), Parents did not meet their burden of proof to prove that Judaic Studies Class, Prayer, Oneg Shabbat, or Hebrew Language were appropriate for the Student. While the Student’s overall programming was shown to meet the Student’s unique needs to achieve academic benefit, there is no evidence that these classes advanced the Student’s learning and addressed the Student’s needs.

Therefore, there are multiple equitable reasons to reduce tuition reimbursement to not include the percentage of the program that Judaic Studies, Prayer, and Oneg Assembly and Hebrew Language. Tuition reduction is appropriate due to the religious nature of religious instruction and worship and also because it was not shown that these classes were appropriate for the Student or were created for and met her unique needs.

As reimbursement “merely requires [a district] to belatedly pay expense that it should have paid all along and would have borne in the first instance” had it offered Student a FAPE (Burlington, 471 U.S. at 370-37), a reduction from full reimbursement is an appropriate consideration where a unilateral placement provides services and classes beyond those required to address a student’s unique educational needs. L.K v. New York City Dep’t of Educ., 674 Fed. App’x 100, 101 (2d Cir. Jan . 19, 2017); C.B. v .Garden Grove Unified Sch. Dist., 635 F. 3d 115, 1160 (9^th Cir. 2011)(Equity permits a reduction from full reimbursement if (a unilateral private placement) provides too much (services beyond required needs), or if it provides some things that do not meet the educational needs at all); Alamo Heights Indep. Sch. Dist. V. State Bd. of Educ., 790 F. 2d 1153, 1161 (5^th Cir. 1986); J.T. v. Dep’t of Education, State of Hawaii, 72 IDELR 95, 118 LRP 24039( D. Hawaii, May 31, 2018).

On the Schedule (which parties stipulated was a correct indication of Student’s schedule and amount of time each week in school and time spent for each period), Hebrew Language is 90 Minutes. Therefore, upon examination of the equities the total calculation of the percentage of students’ schedules taken up with Religious Studies and Worship and Programming that was not shown to meet Student’s needs is 18.49%. After balancing the equities related to the religious content, instruction and worship and/or the lack of proof that Student’s needs are met by certain classes along with other issues related to the credibility of witnesses on certain issues and law, I find it equitable to reduce tuition reimbursement by 18.49% of the total tuition for Student for the 2022-203 school year. Therefore, a reduction of tuition reimbursement in the amount of $13,726.00 is appropriate and reimbursement shall be ordered to be limited to less than full tuition in the amount of $57,627.57.

1. Parents' Request For Relief that Student Was Entitled to Door-To-Door Special Education for the 2022-2023 School Year is Denied.

In their closing memorandum and in the DPC, Parents seek “special education transportation” and reimbursement for all transportation expenses alleged incurred by Parents for “alternate transportation” since such transportation was not provided by the District. See P Ex. A and R.

Parents offer no support that Student needs door-to-door special transportation except for the Mother’s statement in her affidavit that special education transportation is sought due to the Student’s age and issues with attention and executive function. P Ex. R. Mother testified in her affidavit. Parents had to pay for such transportation as it was not provided for the District and seek reimbursement. No proof of the transportation or Parents' costs was offered.

In order to qualify for special education door-to-door transportation as part of the Student’s unilateral placement and reimbursement, Parents are required to meet the standard that the student required such special transportation as a related service, and it was required to meet the unique needs of the Student. NYS Ed. Law § 4401(1-2), 4402(4)(1), 8 NYCRR 200.1(ww); Letter to Smith, 211 IDELR 1911 (OSEP 1980: Union Sch. Dist. v. Smith, 15 F.3d. 1519, 1528(9^th Cir. 1994). NYSED guidance regarding considerations for specific special education transportation considers a student’s mobility, behavior, communication skills, and physical and health needs. “Special Transportation for Students with Disabilities,” VESID Mem.(Mar. 2005), www.p12.nysed.gov/specialed/publications/policy/special trans.pdf. Relevant considerations may also include: (1) age; (2 )distance; (3) nature of the area through which child must pass; (4) access to private assistance; and (5) availability of other public assistance such as crossing guards and public transit. Id.

In the District, unless a Student qualifies for special education transportation, a student with a disability is subject to the same transportation offerings as their general education peers. Here, without qualifying for special education transportation, Student would be entitled to receive a MetroCard.

There is no factual basis in the record supporting that Student needed door-to-door transportation. Dr. REDACTED provided no testimony regarding such a need, nor was any doctor or other specialist's recommendation in the record. The IEP did not find student needed any special transportation. D Ex. 2. Mother’s statements regarding student age, attention, and executive function do not support door-to-door transportation and are not supported by the record. In 2022-2023, the Student did not have significant attention or executive function needs that would affect her ability to travel on the subway (with an adult). The Progress Reports indicate student was organized and did not have significant attention problems. P Ex. L-M. Also, REDACTED’s review of her 2020 Neuropsychological Evaluation, which did not find any attentional disorders, did not recommend Student be evaluated further in 2023 for attention issues. P Ex. Q. There is simply no support Student had attention needs or executive functioning needs that warranted door-to-door transportation. Also, this request is contrary to Mother’s testimony that one of the reasons REDACTED was chosen as a unilateral placement was due to its location. This would indicate REDACTED was convenient for the family, belying the concerns in NYSED guidance numbers 2 and 3 (distance and areas Students must travel through).

Therefore, I decline to issue a declaratory order that the Student was entitled to door-to-door transportation for the 2022-2023 school year special education transportation, and there is no basis for the Parents’ request for reimbursement for such transportation.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered:

1. ORDERED that the following relief be GRANTED to Parents that Student's appropriate placement for the 2022-2023 school year was at the REDACTED;
2. IT IS FURTHER ORDERED that the New York City Department of Education reimburse Parents partial tuition in the amount of $57,627.57, a 18.49% reduction of the total $70,700 tuition ($13,726.00 reduction) for the 2022-2023 school year for Student at REDACTED upon Parents’ proof of payment of tuition, if Parents did not pay all or some the amount of $57,627.57, the District is ordered to directly fund the REDACTED any monies up to $57,627.57 that remain unpaid towards Student’s tuition for the 2022-2023 school year;
3. IT IS FURTHER ORDERED Parents request for a declaratory judgment student was entitled to door-to-door special education transportation is denied; and
4. IT IS FURTHER ORDERED that the New York City Department of Education shall immediately comply in all respects with this Decision and Order.

SO ORDERED.

ORDER DATED: January 27, 2024

Impartial Hearing Officer's signature, Stephanie Seto

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

APPENDIX A– DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

1. Request for Impartial Hearing 12/12/22 11
2. FOFD #208034 10/5/2021 20
3. Interim Order Pendency 11/12/2021 26
4. Pendency Implementation Form 12/20/2022 2
5. Order of Termination Case #215982 1/10/2023 2
6. Ten-Day Notice 8/23/2022 4
7. TDN DOE proof of receipt 8/23/2022 1
8. 2020 Neuropsychological Report Undated 19
9. Re-enrollment Contract with Addendum 2/6/2023 5
10. REDACTED Program Description Undated 4
11. 2022-2023 Class Schedule Undated 1
12. January 2023 Progress Report 1/2023 26
13. June 2023 Progress Report 6/2023 25
14. CV of Dr. REDACTED Undated 10
15. Due Process Response 3/23/23 4
16. Affidavit of REDACTED 10/25/2023 10
17. Affidavit of Dr. REDACTED 10/31/2023 4
18. Affidavit- of REDACTED REDACTED (Mother) Undated 12

DISTRICT’S EXHIBITS

1. 12/2021 IEP 12/1/21 22
2. Subpoena and Subpoena Duces Tecum 10/31/2023 2

IHO EXHIBITS

1. District Closing Memorandum 12/15/23 21
2. Parent’s Closing Memorandum 12/15/2023 21
3. Pendency Order 9/23/2023 14
4. Emails Between IHO and Parties Various Dates 8
5. Emails Setting In-Person Hearing Location Various Dates 10

Footnotes

[1] 1 Exhibits shall be referred to as follows: “P” for Parents’ Exhibit; “D” for District’s or Department’s Exhibits; and “IHO” for Impartial Hearing Officer’s Exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate.

[2] In SRO 23-133 the SRO overturned an IHO determination that excluded the religious components of tuition from an IHO’s award of tuition reimbursement and awarded Parents full tuition reimbursement.

[3] Mr. REDACTED, Comptroller of REDACTED, testified that some law firms requested such a letter for every student when documentation is requested by attorneys in relation to due process claims and some firms do not. Tr. 514. Parent’s counsel’s office was not one of the law firms “that necessarily asked for it for every student.” Id.

[4] The written Torah comprises the first five books of the Bible, i.e., referred to in Christianity as the “Old Testament.” Brittanica.com/topic/Torah (Written and fact-checked by the Editors of Encyclopedia Britannica, updated December 28, 2023).

[5] Midrash is a mode of biblical interpretation and may reference a method of interpretation or a collection or body commentaries on the Torah that is used in Judaism to study the Torah. Brittanica.com/topic/Torah and Midrash (Written and fact-checked by the Editors of Encyclopedia Britannica, updated January 16, 2024); see also Neusner, Jacob, What is Midrash (Wipf & Stock 2014), p. xi; 1-9; Neusner, Jacob, Questions and Answers: Intellectual Foundations of Judaism, (Hendrickson, 2005), p.41. 1

[6] Neusner, What is Midrash, xi; 1-9.

[7] The instances of Mr. REDACTED’s constant objections and interruptions many times followed by statements he placed on the record meant to characterize testimony or guide or coach REDACTED, Mother and REDACTED are too numerous to recount herein but can be found throughout the transcript on all merit hearing dates. This inappropriate behavior affected the effectiveness of the hearings in eliciting testimony without interruption and lengthening the time of the proceedings. The behavior also telegraphed to the witnesses the type of testimony Mr. REDACTED sought. Mr. REDACTED constant objections and interruptions to Mr. REDACTED’s various questions relating to the religious classes after almost every single question in row, including repetition of objections even after being overruled made the cross-examination of REDACTED and Parent and Direct examination of REDACTED extremely confusing due to the lack of a flow to the hearing and testimony and the need to repeat questions after the objections. Mr. REDACTED was openly hostile, unnecessarily argumentative, childish, rude, inappropriately interjected statements of his own facts during witness testimony and grossly inappropriate throughout the proceedings and acted in this manner towards both Mr. REDACTED and the IHO. Mr. REDACTED, in front of witnesses was constantly disrespectful to the Mr. REDACTED and this IHO constantly and at one point insulted both the IHO and his counterpart, Mr. REDACTED when told to stop objecting and overruled. (Mr. REDACTED: “Respectfully, Mr. REDACTED’s inability to ask appropriate questions and your [the IHO] inability to understand that they’re not relevant or inappropriate does not allow me to have…” Tr. 225-324.) Mr. REDACTED constantly interjected that Mr. REDACTED or this IHO were laughing or making faces at him or the IHO was “yelling” at him when such actions did not occur. He also accused Mr. REDACTED of “antisemitic rhetoric” in the middle of Mr. REDACTED’s cross-examination of REDACTED and complained Mr. REDACTED’s “energy” and “delivery” were antisemitic. Tr. 337-338. When asked to support such an accusation, he could not. Tr. 356-360. All of Mr. REDACTED’s accusations were purposefully provocative, meant to color or influence the witnesses and, upon review of the written record, to make a false “record” of conduct that did not occur as a tactic. Although repeatedly warned and admonished on the record, Mr. REDACTED failed to comport himself in an appropriate manner for an attorney or even a lay advocate, made a mockery of the hearing forum and continued unabated. This behavior had the effect that his witnesses took cues to answer in an obstructionist and uncooperative manner. Not wanting to penalize the Family by throwing Mr. REDACTED out of the hearing, the IHO refrained from taking this action, although it would have been warranted in a court, and the hearings took much longer than necessary due to his actions and created unnecessary tension. It is noted Mr. REDACTED’s inappropriate behavior started prior to the commencement of the merits hearings after the parties’ settlement negotiations broke down and it became clear the matter would have to go to a merits hearing. See Tr.58-200; see also, IHO Ex. IV Emails.

[8] The IDEA recognizes some parents will choose to send eligible disabled children to private school (including private sectarian schools), and these children placed in private schools by parents (referenced as “parentally placed”) are entitled to certain very limited rights under the IDEA but an LEA is not required under the IDEA to pay the cost of education, including special education and services. 20 U.S.C. § 1412(a)(10); 34 C.F.R. § 300.137(a). New York State affords students classified as disabled greater rights to and obligation of the LEAs to provide certain special education and related services to disabled students pursuant to Educ. Law § 3602-c. But, parentally placed students in private schools are not at issue herein.