STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-207
Application of a STUDENT WITH A DISABILITY, by her parent, for review of a determination of a hearing officer relating to the provision of educational services by the New York City Department of Education
Appearances:
Bochner PLLC, attorneys for petitioner, by Collet Ebadi, Esq.
Liz Vladeck, General Counsel, attorneys for respondent, by Toni L. Mincieli, Esq.
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law. Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which denied her request to be reimbursed for her daughter's tuition at Mill Basin Yeshiva Academy Prep (MBYA Prep) for the 2024-25 school year. The appeal must be sustained.
II. Overview—Administrative Procedures
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (IEP), which is delegated to a local Committee on Special Education (CSE) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).
A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4). The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5). The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]). The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).
III. Facts and Procedural History
The parties' familiarity with this matter is presumed and, therefore, the facts and procedural history of the case and the IHO's decision will not be recited in detail. Briefly, on January 30, 2024, a district CSE convened and found the student eligible for special education and related services as a student with a learning disability (Dist. Exs. 1; 2).[1] The January 2024 CSE recommended that the student be placed in a general education classroom and receive the support of integrated co-teaching (ICT) services in the areas of math (10 periods per week), English language arts (ELA) (10 periods per week), social studies (5 periods per week), and sciences (5 periods per week), together with one 30-minute session per week of individual counseling services (Dist. Ex. 1 at pp. 13-14). The district sent a prior written notice regarding the January 2024 CSE recommendations to the parent on July 30, 2024, together with a school location letter bearing the same date (see Dist. Exs. 3-4).[2]
On August 26, 2024, the parent notified the district of her disagreement with the January 2024 IEP recommendations and the assigned school, and of her intent to unilaterally place the student at MBYA Prep for the 2024-25 school year at district expense (see Parent Ex. B).[3]
On September 20, 2024, the parent signed an enrollment contract with MBYA Prep for the 2024-25 school year beginning on September 4, 2024 and ending on June 17, 2025 (see Parent Ex. D).
A. Due Process Complaint Notice
In a due process complaint notice, dated December 2, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2024-25 school year (Parent Ex. A). The parent alleged that the IEP was "procedurally and substantively invalid" in that the CSE: failed to have a regular education teacher present at the CSE meeting; failed to consider sufficient evaluative information; failed to accurately describe the student's needs; and failed to consider information from staff at the student's nonpublic school (Parent Ex. A at pp. 1-2). The parent alleged that the student required instruction in a small class from a special education teacher throughout the school day and that ICT services would have been "too distracting" for the student and would not have provided her with the individual support she required (id. at p. 2). Additionally, the parent argued that the annual goals did not meet the student's needs, were not achievable, and, with respect to the postsecondary goals, they were vague and not "tailored" to the student's needs (id.). Further, the parent asserted that the assigned school could only offer five periods per week of ICT services, which meant that it could not implement the student's IEP as written (id.).
Next, the parent argued that the nonpublic school provided the student "with appropriate special education support" (Parent Ex. A at p. 2). As relief, the parent requested a declaratory finding that the district failed to offer the student a FAPE for the 2024-25 school year and tuition reimbursement for MBYA Prep for the 2024-25 school year (Parent Ex. A at p. 3).
In a due process response, the district generally denied the material allegations contained in the due process complaint notice, asserted certain affirmative defenses, and attached a supplemental notice that contained information pertaining to the January 2024 IEP (Dist. Response to Due Proc. Compl. Not.).
B. Impartial Hearing Officer Decision
After a prehearing conference on January 6, 2025, and a status conference on January 27, 2025, an impartial hearing convened before the Office of Administrative Trials and Hearings (OATH) on March 5, 2025 (Tr. pp. 1-44). In a decision dated March 5, 2025, the IHO found that the district failed to offer the student a FAPE for the 2024-25 school year and that the parent failed to meet her burden of proving that the nonpublic school offered the student specially designed instruction to meet her needs (IHO Decision at pp. 3, 5-6).
In connection with whether the district offered the student a FAPE, the IHO stated that the district failed to present any witnesses to explain the recommendations in the IEP or to discuss whether the recommended school placement could implement the student's IEP (IHO Decision at p. 5). The IHO held that the district's documentation alone was not sufficient for the district to meet its burden and that the weight of the evidence supported finding that the district did not offer the student a FAPE (id.).
Next, the IHO addressed the parent's unilateral placement of the student at MBYA Prep and found that the parent did not explain how the school addressed the student's deficits in math. In particular, the IHO noted that the parent raised concerns in her 10-day notice suggesting that the student needed more support in math than the recommended 10 periods per week of ICT services, but there was no evidence in the hearing record as to how the student's math difficulties were addressed at MBYA Prep (IHO Decision at p. 6). In particular, the IHO indicated that the parent described the student as functioning below grade level in math and struggling in her 10-day notice, but, three months later, after the student was only receiving math instruction as part of a once a week computer science course, the progress report for the nonpublic school indicated the student met the math requirements for graduation (id.). Accordingly, the IHO found that the nonpublic school was not appropriate and did not meet the student's needs, and therefore, denied the parent's requested relief (id.).
IV. Appeal for State-Level Review
The parent appeals, alleging that the IHO erred in finding that she did not meet her burden of proving that MBYA Prep was an appropriate unilateral placement for the student for the 2024-25 school year. The parent argues that the IHO incorrectly focused on one aspect of the unilateral placement, specifically math, and did not look at the totality of whether the unilateral placement was reasonably calculated to meet the student's needs. In addition, the parent asserts that the IHO ignored evidence of the student's progress in all areas of academics. Next, the parent asserts that equitable considerations support an award of full tuition reimbursement. She claims that she cooperated with the CSE, and that the religious instruction portion of the school day should not warrant a reduction in tuition. As relief, the parent requests a finding that MBYA Prep was an appropriate unilateral placement, that equitable considerations favored the parent, and an award of tuition reimbursement and direct funding of MBYA Prep tuition.
In an answer, the district generally denies the material allegations contained in the request for review. The district argues that the IHO correctly found that the unilateral placement was not appropriate based upon the evidence in the hearing record and further asserts that equitable considerations do not favor an award of tuition reimbursement or direct funding at MYBA Prep. The district references a "cross-appeal" in several instances in its own pleading, attempting to "cross-appeal" from the favorable aspects of the IHO's decision; however, the district was not aggrieved by the IHO's decision and, for that matter, did not allege any error by the IHO. Accordingly, the undersigned has treated the pleading as an answer with defenses; however, the district is also cautioned to review the practice regulations in Part 279 and should not expect excusal for future failures to comply with the practice regulations in Part 279.
V. Applicable Standards
Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generallyForest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]).
A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 399 [2017]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 580 U.S. at 404). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 580 U.S. at 403 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).[4]
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85).
VI. Discussion
Here, the district does not appeal the IHO's finding that it denied the student a FAPE for the 2024-25 school year. Accordingly, this finding has become final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).
A. Unilateral Placement
Turning to the parent's assertion that the IHO erred in finding that MBYA Prep was not an appropriate placement for the student for the 2024-25 school year, a private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). Citing the Rowley standard, the Supreme Court has explained that "when a public school system has defaulted on its obligations under the Act, a private school placement is 'proper under the Act' if the education provided by the private school is 'reasonably calculated to enable the child to receive educational benefits'" (Carter, 510 U.S. at 11; see Rowley, 458 U.S. at 203-04; Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see also Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (id. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.
No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.
(Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
1. Student's Needs
Prior to addressing the adequacy of the unilateral placement, a brief discussion of the evidence regarding the student's needs is a relevant starting point to the analysis. The hearing record includes information relating to the student's needs during the 2023-24 and 2024-25 school years, including the January 2024 IEP which incorporated both teacher and counseling progress reports from the nonpublic school the student was attending, parent input, and the results from a 2023 psychoeducational evaluation (Dist. Ex. 1 at pp. 1-7; see Parent Exs. G; H; K; Dist. Exs. 5-7).
With regard to the student's intellectual functioning, administration of the Wechsler Intelligence Scale for Children-Fifth Edition (WISC-V) to the student as part of a December 2023 psychoeducational evaluation yielded a full scale IQ in the low average range (FSIQ 86) (Dist. Exs. 1 at p. 1; 5 at p. 6). The evaluator noted that the student's scores on verbal comprehension tasks (composite score 81) were weaker than her performance on tasks that required her to use logic to solve problems (composite score 97) (Dist. Ex. 5 at pp. 2-3, 6-7). Next, the December 2023 psychoeducational evaluation indicated that based on the Wechsler Individual Achievement Test, Fourth Edition (WIAT-4) the student demonstrated delayed academic skills (Dist. Ex. 5 at p. 3 According to the psychoeducational evaluation report, the student's skills were below age and grade level in most areas and specifically the report noted the student's ability to read sight words was in the very low range as was her reading comprehension (Dist. Exs. 1 at pp. 1-2; 5 at p. 6). The report noted that the student read many sight words correctly but should have read many more and further noted that she made a lot of errors while reading and was not very fluent (Dist. Ex. 5 at p. 3). A January 2024 teacher report, completed one month later, indicated that the student was able to "decode successfully" at a beginning 10th-grade level while at the time she was in 11th grade (Dist. Exs. 1 at pp. 2-3; 6 at p. 1). The report further indicated that the student's reading comprehension skills were at a beginning seventh grade level (Dist. Ex. 6 at p. 1). Moving on to math, the psychoeducational evaluation report stated that the student's math skills were slightly stronger than her reading skills (Dist. Ex. 5 at p. 5). Administration of the WIAT-4 to the student showed that on the problem solving and numerical operations subtests the student scored in the low average range (Dist. Exs. 1 at p. 2; 5 at p. 6). The evaluation report stated that the student "worked very quickly" during the numerical operations subtest and made "some careless mistakes" (Dist. Ex. 5 at p. 3). Still, she was able to correctly solve single-digit, double-digit, and multi-digit addition problems; single-digit and double-digit subtraction problems with and without renaming; single-digit multiplication problems; basic division problems and three-digit division problems; and simplify fractions (id.). The student had the most difficulty with multiplying multi-digit numbers, order of operations, negative integers, fractions, solving multi-step equations and identifying the value of pi (id. at pp. 3-4). On the math problem-solving subtest, the evaluation report indicated that the student's skills were "closer to age expectancy," and that the student "talked herself through a lot of math examples," and was able to "correctly identify place value, add and subtract objects, tell time, interpret graphs, interpret a calendar to draw conclusions, complete number patterns, solve single-operation word problems, solve single-operation word problems about time, make fractions, and find angles" (id. at p. 4). With regard to problem solving, the student had the most difficulty solving mixed-operations word problems, ordering and converting fractions, finding the perimeter of a figure, solving simultaneous equations and probability problems, and finding the mean of a set of numbers (id. at p. 4). According to the January 2024 teacher report, the student, who was in the 11th grade at the time, demonstrated her math skills at an eighth-grade level (Dist. Exs. 1 at p. 4; 6 at p. 1). The student's teacher further reported that math made the student "very anxious" and noted that there were "significant ga[]ps" in the student's skills and that she had not memorized basic math facts or mastered basic calculation skills (Dist. Exs. 1 at p. 4; 6 at p. 1). During the 2023-24 school year, the student took a "NYS [R]egent[s] algebra I course" and prepared to take the New York State Regents exam (Dist. Ex. 6 at p. 4).[5]
The student's writing was not scored quantitatively as part of the December 2023 psychoeducational evaluation and, although her writing structure, use of grammar, and spelling were all described as "good," overall, her writing was described as "simplistic and could have been more sophisticated" considering she was in the 11th grade (Dist. Exs. 1 at p. 2; 5 at p. 4). In contrast, in her January 2024 report, the student's teacher described her writing skills as being at a seventh-grade level, noting that her vocabulary, grammar, and sentence structure was "very low" and further indicating the student repeated the same information many times and required 1:1 support to start the writing process and constant support while writing (Dist. Exs. 1 at p. 3; 6 at p. 3).
In terms of the student's physical development, the January 2024 IEP indicated the student was in good health and there were no noted physical concerns or limitations at that time (Dist. Ex. 1 at p. 6). A January 2024 counseling progress report indicated that the student presented with low self-esteem, poor self-image, and struggled with maintaining peer relationships, but also described her as working toward goals to increase her confidence, reduce "possible disordered eating," and increase her social network through improved social skills (Dist. Ex. 7).
According to the parent, the student was "behind across all subject areas" and required a "high level of support and individualized attention" (Parent Ex. K ¶ 2). The parent indicated that the student required 1:1, small group instruction, differentiated work, and tailored instruction to make progress (id. ¶ 4). Further, during the January 2024 CSE meeting, the parent expressed that the student struggled "in math a lot" and needed assistance, repetition, and reteaching to complete assignments at home, although the IEP also indicated that the student reported math as being "her easiest subject" (Dist. Ex. 1 at p. 5).
Turning to the 2024-25 school year, a January 2025 teacher progress report reflected that, at the time, the student was performing at an eighth-grade level in reading comprehension, "particularly in… [coursework for] English Literature and the U.S. Government," and her decoding and reading comprehension skills were below grade level (Parent Ex. G at p. 1). The teacher noted that the student's expressive and receptive language skills, specifically when responding verbally, were below grade level, and her vocabulary was extremely limited (id.). The student often struggled to answer questions, use evidence and descriptive details, and her spoken sentences tended to be "simple and underdeveloped" (id.).
The January 2025 teacher progress report stated that the student was then in 12th grade and had completed all required math prerequisites to graduate, demonstrating proficiency in basic math operations (Parent Ex. G at p. 1). According to the progress report, during the 2024-25 school year, "instead of taking traditional math," the student was "enrolled in a computer science course where she [w]as learning how to program using AI coding platforms like Code.org" (id.).
In writing, the 2025 teacher progress report reflected the student's writing skills were at an eighth-grade level, with continued challenges in spelling, punctuation, and organization (Parent Ex. G at p. 2). The teacher indicated that, although the student was able to write three to five paragraphs independently, her writing often lacked coherence, as she struggled with sentence structure and frequently repeated the same sentences (id.). She was not able to substitute a repeated word with a synonym and had difficulty writing essays at a "grade-appropriate level" (id.).
The January 2025 teacher progress report described the student's learning style, stating that she "learn[ed] best when the material [was] heard and seen," as she benefited from auditory and visual explanations (Parent Ex. G at p. 3). The teacher cited the student's limited attention span, noting that she could become easily frustrated when tasks were not broken down or when she felt overwhelmed (id.). The student was noted to "thrive[] in one-on-one settings or small group environments" where discussions were encouraged (id.). Her teacher also noted that the student experienced difficulty transitioning between classes, often becoming easily overwhelmed and distracted, and she struggled with accepting failure, which impacted her ability to stay focused during instruction (id. at p. 4). The progress report reflected that the student strived to succeed and she took pride in her achievements (id.). The 2025 teacher progress report also indicated that the student had passed the New York State "Regents exams with the safety net" (id.).
Turning to the student's social development, the January 2025 teacher progress report indicated that she "g[ot] along well with her classmates and [wa]s a caring individual who strive[d] to do her best in school" (Parent Ex. G at p. 3). A February 2025 counseling progress report noted that the student had difficulty following multi-step directions, as was as maintaining focus, and that she had a hard time accepting failure (Parent Ex. H at p. 1). However, the report also stated that the student was social, friendly and "generally had a positive attitude" but often felt her peers were not as mature she was (id.). The counselor noted that the student was self-aware and put thought into her future plans, but she also struggled with following multistep directions, focus, and attention and she was easily distracted (id.).
2. Specially Designed Instruction
The principal of MBYA Prep, in her affidavit testimony, provided an overview of MBYA Prep and the 12th grade class the student attended at MBYA Prep for the 2024-25 school year (Parent Ex. J ¶¶ 1-9). Specifically, the principal noted that the school fostered "self-growth, advanced skills and applied knowledge that will help students see themselves as lifelong learners and achievers" (Parent Ex. J ¶ 9). She indicated that students who attend MBYA Prep are generally those who struggle with academic, social, behavioral, and attentional skills (id. ¶ 3). The principal testified that MBYA Prep addressed "social and emotional development, with the goal of instilling social and emotional skills in students, including self-regulation and control, so that they are prepared to enter society with the proper maturity and interpersonal relationship skills" (id. ¶ 7). Further, the principal testified that there was "ongoing collaboration between parents, administrative staff, teachers, and service providers at MBYA Prep to provide each student with a safe and supportive learning experience and …to ensure that each student is supported" (id. ¶ 8).
Turning to the MBYA Prep principal's testimony regarding the 12th grade class, she noted that MBYA Prep has one 12th grade class, which she described as "a small program," with 11 students (Parent Ex. J ¶ 3). The student's class at MBYA had a special education teacher in addition to general education teachers, who worked collaboratively to prepare lessons, modify instruction, and address each student's individual learning style (id. ¶ 4). The principal indicated that the special education teacher sometimes provided initial instruction or would "re-teach[] and reinforce[] the lesson in small groups," with the group size varying from "one on one, or two to six" (Tr. p. 34; Parent Ex. J ¶ 5). The principal testified that she supervised the classroom teachers and continuously monitored lessons to ensure effectiveness (Parent Ex. J ¶ 16). She also provided "specific learning strategies and recommend[ed] materials as needed," and stated that meetings were held throughout the year "where teachers, [her]self, and related service providers discuss[ed] each student's progress (id.).
The hearing record includes copies of the 2024-25 MBYA Prep 12th-grade schedule and a course description (see Parent Exs. E; F). According to the schedule, the student's school day began at 8:50 a.m. and ended at 3:01 p.m. with dismissal at 11:31 a.m. on Fridays (Parent Ex. F). In addition, the class schedule included a daily mid-morning break and afternoon lunch break as well as computer and gym periods, each once per week (id.). The class schedule and course description identified a number of courses, each conducted for 40 minutes, including: U.S. government; English literature; philosophy; psychology; essential life skills or essential skills for success; introduction to computer science; Hebrew language; Jewish history; and Jewish studies (Parent Exs. E-F).[6]
The principal testified that MBYA Prep was a "regular school" with time for prayer and "a few religious-based classes" (Tr. p. 35).[7] She then explained that MBYA Prep was accredited, that the students had core classes they must pass, and the school administered Regents exams (id.).
Turning more specifically to the student in this case, the principal indicated that she was familiar with the student, as she had observed the student and also taught the "Women in Jewish History" course to the student during the 2024-25 school year (Parent Ex. J ¶¶ 10-11). The principal also reported that she monitored the students by meeting "with the girls one-on-one sporadically, . . . to assess their progress and to see how they're, . . . managing and discuss any concerns or issues or successes" (Tr. p. 32). As reflected in her written testimony by affidavit, the principal noted that the student presented with academic delays including delays in reading comprehension, vocabulary, sentence structure, spelling, punctuation, and writing organization (Parent Ex. J ¶ 12). She also stated that the student had deficits in receptive and expressive language skills, struggled with transitions and "maintaining focus, often requiring step-by-step instructions and 1:1 support to complete tasks" (id.). To address her educational needs, the principal indicated that the student received individual and small group instruction, pre-teaching, repetition and re-teaching at her pace, scaffolding, chunking material, vocabulary lists, graphic organizers, visual aids, note-taking templates, assignments broken into smaller pieces, encouragement, and related services (id. ¶ 13). The principal opined that "a big part of [the student's] success c[ame] from encouraging her and fostering her motivation, which help[ed] her push through challenges and achieve her goals" (id.).
In reading, the principal indicated that in order to support the student's reading needs, the school provided her with texts with lists of synonyms to "help her grasp key vocabulary," and re-reading, and broke down the material into smaller, more manageable chunks which allowed the student to "process the information more easily and re-interpret it in simpler terms" (Parent Ex. J ¶ 18). The student was also taught to write down new or unfamiliar words and then incorporate them into sentences or short stories which helped reinforce her vocabulary knowledge and understanding (id.). The principal testified that the student was "pre-taught concepts before a lesson," the material was broken down into smaller sections in order to familiarize her with "key vocabulary and concepts, reduce[] anxiety, and help[] her connect new information" (id.). Additionally, the student used graphic organizers, visual aids, guides, and templates to structure her note taking (id.). The principal indicated that with the reading supports she received, the student had "significantly improved her ability to engage with academic content" (id. ¶ 19).[8] She noted progress in the student's confidence when answering critical thinking questions and expressing herself both orally, and in writing (id.). The principal's testimony by affidavit reflected that working in small groups had assisted the student in increasing her ability to "think critically and respond with greater understanding and confidence," her verbal responses had become more specific, and she used a "richer vocabulary" (id.).
Next, a MBYA Prep teacher progress report, dated January 2025, indicated much of the same information included in the principal's testimony, but also noted that all of the strategies were conducted "consistently 1:1 at a separate location," to avoid distractions and loss of focus (Parent Ex. G at p. 1). The teacher progress report reflected that incorporation of pre-reading texts and practicing re-telling helped the student better retain the material (id.). For example, when studying the amendments to the American Constitution, the teacher noted that the student needed additional support to fully understand the meaning and reasons of each amendment (id.). As the "complexity of the texts ma[de] her feel overwhelmed," the teacher worked with her to break down the text and provide clarification, and for homework, the student had to explain in her own words her understanding of each question regarding the amendments (id.). In English Literature, the teacher stated that the student worked with a partner to strengthen her understanding and used "No Fear Shakespeare," a resource which provided modern English translations alongside the original text, to assist with understanding the Shakespearean texts (id. at pp. 1-2). The 2025 teacher progress report stated that, with the "approaches used," the student showed more interest and willingness to participate in her class work and progress was noted in her notetaking and study habits, which allowed her to retain more information (id.).
In writing, the principal indicated that the student required consistent guidance and support throughout the writing process, with topics broken down into manageable parts and sentence structure closely monitored by her teachers (Parent Ex. J ¶ 20). To support the student's writing needs, she was provided with synonyms and word choices through 1:1 support and small group work and essays were divided into smaller assignments, typically two to three sections (id. ¶ 21). The principal indicated that prewriting activities were conducted in class, which often include "2:1 work," where students could discuss the topic, share ideas, and support each other (id.). The 2025 teacher progress report stated that the student required consistent guidance and support throughout the writing process, with topics broken down and sentence structure being closely monitored and corrected by her teachers (Parent Ex. G at p. 2). The student's teacher reported that the student put "significant effort" into completion of her assignments and that during 1:1 sessions, tasks were discussed in detail (id.). The student wrote shorter essays, usually three to four paragraphs instead of the "traditional [five] paragraph format," but the teacher indicated that she had become capable of writing well-organized paragraphs with proper punctuation, spelling, and vocabulary, often containing up to 10 sentences (id. at p. 3). According to the student's teacher, she worked on composing a personal statement for her resume and college applications and overall had built "more confidence in her ability to express herself clearly and accurately" (id.). The teacher progress report noted that the student was "gradually developing stronger writing abilities, which serve[d] her across all subjects" (id.).
Socially, the student's teacher described her as a "caring individual who strives to do her best in school" (Parent Ex. G at p. 3). The teacher noted that the student had trouble transitioning between classes and struggled with accepting failure (id. at p. 4). In a February 2025 counseling progress report, the counselor indicated that the student had made progress toward her counseling objectives as she was comfortable with accepting support and guidance and in expressing herself; additionally, the counselor reported that the student's confidence and self-esteem had grown, as well as her ability to "reflect on her own words and actions" (Parent Ex. H at p. 1). The counselor stated that the student had struggled in the past with disordered eating and body image issues, but during the 2024-25 school year, the student had a healthier mindset, though the counselor continued to monitor her for "subtle signs" of struggle (id. at p. 2).
The 2025 teacher progress report reflected that the student had "completed all math requirements to graduate, demonstrating proficiency in basic math operations" and was not taking any traditional math courses during the 2024-25 school year, but rather a computer science course (Parent Ex. G at p. 1). The MBYA Prep principal testified that the student was not in a math class because she "completed all her math requirements for high school" (Tr. p. 32). The progress report indicated that the student had passed the New York State Regents exams with the low pass safety net option, as allowed for students with disabilities in New York State (Parent Ex. G at p. 4). During the 2023-24 school year, the hearing record indicates that the student was taking Algebra I and was preparing to take the Algebra I Regents exam (Dist. Ex. 6 at p. 4). However, the hearing record does not identify what math classes the student completed other than Algebra I during the 2023-24 school year and the computer science course the student was taking during the 2024-25 school year (Parent Exs. A-K; Dist. Exs. 1-8).[9]
The principal, the MBYA progress report, and the MBYA course description included nearly identical descriptions of the computer science course, describing it as a class where students learned to using AI coding platforms, covering foundational programming concepts, including algorithms, logic, and problem-solving, all of which encouraged development of "valuable technical skills essential in today's digital world" (Parent Exs. E at p. 3; G at p. 1; J ¶ 24).
In her decision, the IHO found that the parent did not meet her burden of proving that her unilateral placement of the student at MBYA Prep for the 2024-25 school year was appropriate solely because of the math instruction provided to the student (IHO Decision at p. 6). The IHO determined that the parent's "portrayal of [the] student's performance" at the nonpublic school was "inconsistent with [the] [p]arent's concerns in [her] [10-day notice]" (id. at p. 6). The IHO stated that the 10-day notice and follow up letter sent to the district indicated that the student was below grade level and struggled with math and, further, determined that no evidence was presented as to how the student could have met the math requirements for graduation within three months of enrollment at the nonpublic school (id.).
Initially, the IHO's interpretation of the parent's concerns as raised in the 10-day notice and follow-up letter is too narrow and focused only on the student's needs in math, whereas the letters themselves did not limit the parent's complaints regarding the district's recommended programming to math, but instead asserted ICT services were unsuitable for the student before noting the student's low-average cognitive abilities, her "particularly weak" reading abilities, with very low scores in sight word reading and reading comprehension, the student's below grade level writing skills, and her struggles with multi-step directions and organization, as well as the student's below grade level math skills and struggles with numerical operations and basic computations (Parent Ex. B at pp. 1, 4). Review of the concerns presented by the parent as to the student's abilities is consistent with the above-described evaluative information regarding the student's needs (see Parent Exs. G-H; Dist. Ex. 6). Accordingly, rather than focusing solely on math, the IHO should have addressed the special education provided to the student at the nonpublic school and determined whether the instruction was specially designed to address the student's identified needs. Parents need not show that a unilateral placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65), rather, the program as a whole must be "reasonably calculated to enable the child to receive educational benefits" (Carter, 510 U.S. at 11, 13-14, quoting Rowley, 458 U.S. at 203-04) when considered under the totality of the circumstances.
In this instance, the hearing record supports finding that MBYA Prep was providing the student with specially designed instruction to meet her identified needs. In particular, as discussed above, academically, the student was further behind in her reading and writing skills than she was in math indicating it was reasonable to focus attention on those areas (see e.g., Parent Exs. G; J ¶¶17, 20, 24; Dist. Exs. 1 at pp. 2-5; 5 at pp. 3-4; 6). Additionally, while the IHO was concerned that the evidence in the hearing record did not sufficiently show that the student already met or was meeting the math requirements for graduation during 12th grade, demonstrating that a student has met the graduation requirements is not the precise test of the adequacy of a unilateral placement. The IHO overlooked and did not discuss documentary evidence from the district showing that, during the preceding 2023-24 school year, the district had conducted a vocational assessment indicating that the student had completed two years of high school, was then in her third year, and was on target to complete the requirements for a Regents diploma (Dist. Ex. 6 at p. 10). Specifically, with respect to math, the district's evidence indicated that the student needed to pass the algebra I Regents exam (id.). During the impartial hearing, the district did not refute the testimonial evidence that by 12th grade the student had met the math requirements toward graduation or that the student had achieved a low-pass of the algebra I Regents exam. While the district or the IHO were free to question the witnesses further convey any concerns regarding the quantity of evidence, the evidence in the hearing record from both parties, as it stands, tips slightly in favor of the parent with respect to math and, as a whole, does not detract from the fact that the student was receiving specially designed instruction to meet her needs and was making progress in necessary skills.
Based on the foregoing, the evidence shows that MBYA Prep provided the student with specially designed instruction designed to meet her unique educational needs and there is a reasonable basis to overturn the IHO's finding that MBYA Prep was not an appropriate unilateral placement for the student for the 2024-25 school year.
B. Equitable Considerations
Having found that the unilateral placement was appropriate, I next turn to whether equitable considerations warrant an award or reduction of the parent's requested relief.
The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).
On appeal, the parent asserts that she cooperated with the district throughout the CSE process and that equitable considerations weigh in favor of granting her requested relief. The district does not contend that the parent did not cooperate with the district and the parties' only dispute with respect to equitable considerations is whether funding should be reduced for the religious instruction portion of the MBYA Prep school day. The district argues that any award for the tuition at MBYA Prep should be reduced by 20.18 percent, which is the amount of the student's program that was described as being religious in nature.
1. Religious Instruction
The current trend in case law on the issue of public funding for religious instruction permits district funding of nonpublic school tuition without reduction for aspects of religious instruction (see Application of a Student with a Disability, Appeal No. 23-133 [laying out the relevant caselaw through the Supreme Court's decision in Carson v Makin, 596 U.S. 767 (2022)]).
In Carson, the Supreme Court annulled a Maine law that gave parents tuition assistance to enroll their children at a public or private nonreligious school of their choosing because their town did not operate its own public high school (596 U.S. at 789). The program in Maine allowed parents who live in school districts that did not have their own high school or did not have a contract with a school in another district, to send their student to a public or private high school of their selection (id. at 773). The student's home district then forwards tuition to the chosen public or private school (id.). However, the Maine law creating the program barred funds from going to any private religious school (id.). The parents in the Carson case lived in school districts that did not operate public high schools, and challenged the tuition assistance program requirements which they felt would not award them assistance to send their children to religious private schools (id.). The parents sued the Maine education commissioner in federal district court, alleging that the "nonsectarian" requirement violated the Free Exercise Clause and the Establishment Clause of the First Amendment (id.). Ultimately, the Supreme Court found the law to be unconstitutional on the grounds that it violated the Free Exercise Clause of the First Amendment by excluding religious private schools from receiving funding (id. at 789).
More recently, in a case where Orthodox Jewish parents sued California school officials over a statutory requirement that nonpublic schools (NPS) must be "nonsectarian" to apply for certification to provide special education services to disabled students, claiming it violated free exercise and equal protection, the Ninth Circuit Court of Appeals explained that when the parent plaintiffs asked that a public benefit—state funding of nonpublic school placements for disabled students—not be restricted to those seeking placement in nonsectarian schools, they plausibly alleged that California's nonsectarian NPS requirement burdened their free exercise of religion. This was because it conditioned public funding for their children's school on that school's nonreligious character and "presented a 'tendency to coerce' them 'into acting contrary to their religious beliefs'" (Loffman v. California Dep't of Educ., 119 F.4th 1147, 1169 [9th Cir. 2024]). In that case, the court held that the statute failed the neutrality test, the government was required to overcome strict scrutiny, and the government's alleged compelling interest in maintaining neutrality toward religion was insufficient to overcome such scrutiny (Loffman, 119 F.4th at 1170-71).
Although, the Supreme Court has not directly addressed the issue of tuition reimbursement for time spent in religious instruction at a unilateral placement, there are some principles that can be applied to this situation. The Supreme Court has directly held that the IDEA is a neutral program that distributes benefits to any child qualifying with a disability without regard to whether the school the child attends is sectarian or non-sectarian (Zobrest v. Calatina Foothills Sch. Dist., 509 U.S. 1, 10 [1993]). In the specific context of tuition reimbursement, some district courts in other states have found that full tuition reimbursement is appropriate under the Establishment Clause (Matthew J. v. Mass. Dep't of Educ., 989 F. Supp. 380 [D. Mass. 1998]; Christen G. v. Lower Merion Sch. Dist., 919 F. Supp. 793 [E.D. Pa. 1996], see Edison Twp. Bd. of Educ. v. F.S., 2017 WL 6627415, at *7 [D.N.J. Oct. 27, 2017] [noting that reimbursement of the funds was to the parents, not a religious school, and that "the sectarian nature of an appropriate school does not preclude reimbursement"], adopted at, 2017 WL 6626316 [D.N.J. Dec. 27, 2017]; R.S. v. Somerville Bd. of Educ., 2011 WL 32521, at *10 [D.N.J. Jan. 5, 2011] [finding that, if an appropriate unilateral placement is sectarian, "neither the IDEA nor the Establishment Clause is violated when the court orders reimbursement to the parents" but noting that a district placement might violate the Establishment Clause]; L.M. v. Evesham Twp. Bd. of Educ., 256 F. Supp. 2d 290, 303 [D.N.J. 2003] [noting that application of the endorsement test would not bar reimbursement of tuition for a unilateral placement in a sectarian school under the Establishment Clause];[10]see also Bd. of Educ. of Paxton-Buckley-Loda Unit Sch. Dist. No. 10 v. Jeff S., 184 F. Supp. 2d 790, 804 [C.D. Ill. 2002]; Doolittle v. Meridian Joint Sch. Dist. No. 2, 128 Idaho 805, 812-13 [1996]).
Among those district courts that have examined the issue with more analysis, it has been held that the tuition reimbursement for the full cost of a school year, "[did] not violate the second prong of Lemon" as it "[did] not in any way advance religion" and that "[t]he only matter advanced is the determination by Congress that a disabled child shall receive a free appropriate public education" which the district was obligated to provide yet "did not do so" (Christen G., 919 F. Supp. at 818, citing Lemon v. Kurtzman, 403 U.S. 602 [1971]).[11] Focusing on the indirect aid and individual choice factors discussed in prior Supreme Court cases, another district court granted full tuition reimbursement to parents for four school years under the IDEA, determining that the Establishment Clause would not be violated by full reimbursement because the placement was "necessary as a last resort" due to the district's denial of a FAPE, "the aid would go to pay for the student's education in a placement the court f[ound] was otherwise appropriate under the IDEA," and the "funds would be paid without regard to [the school's] sectarian orientation" and directly to the parents individually (Matthew J. v. Mass. Dep't of Educ., 989 F. Supp. 380, 392-93 [D. Mass. 1998], citing Witters v. Washington Dep't of Services for the Blind, 474 U.S. 481, 488 [1986]).
The district argues that federal law forbids States from paying for any "religious worship, instruction, or proselytization" (Answer ¶ 13, citing 34 CFR 76.532). The district's argument is flawed in several respects. First, the party seeking equitable relief for the denial of a FAPE and who incurred the liability for the student's unilateral placement as a result is the parent and she is neither the State nor a subgrantee within the meaning of 34 CFR 76.532. Instead, it was the subgrantee, namely the district, which caused the denial of a FAPE and left the parent to fix it with a self-help remedy and bear the risk that she might not succeed in her Burlington/Carter claims. Accordingly, the regulation does not apply to the facts of this case. Furthermore, the Supreme Court has held the federal regulation in question is not a separate limitation on the IDEA but is merely coextensive with the requirements of the Establishment Clause (Zobrest v Catalina Foothills Sch. Dist., 509 U.S. 1, 7 n.7 [1993]).
The district also asserts that the New York State Constitution prohibits district payment for the portion of the school day attributed to religious instruction in that it states that: "[n]either the state nor any subdivision thereof, shall use its property or credit or any public money, or authorize or permit either to be used, directly or indirectly, in aid or maintenance, other than for examination or inspection, of any school or institution of learning wholly or in part under the control or direction of any religious denomination, or in which any denominational tenet or doctrine is taught, but the legislature may provide for the transportation of children to and from any school or institution of learning" (N.Y. Const. art. XI, § 3). Notwithstanding this language, the State Constitution also provides that: "nothing in this constitution contained shall prevent the legislature from providing for the . . . education and support of" individuals with disabilities "as it may deem proper" (N.Y. Const. art. VII, § 8[2]; see Application of the Bd. of Educ., Appeal No. 03-062; Application of the Bd. of Educ., Appeal No. 96-036).
In this matter, it is uncontroverted that the district failed to offer the student a FAPE for the 2024-25 school year. Based on this, the parent had no choice but to seek remedial relief, and the parent, under the IDEA, had the right to place the student at a school of her choosing and seek funding for it, provided that it was appropriate to meet the student's needs. In this instance, as noted above, the hearing record supports a finding that MBYA Prep was an appropriate unilateral placement for the student for the 2024-25 school year.[12] Thus, direct funding for the cost of the student's attendance at MBYA Prep is not precluded by the Establishment Clause of the First Amendment, by any federal or State regulation, or by the State's Constitution. The IDEA has the secular purpose of ensuring that all children with disabilities are offered a FAPE. In its Burlington and Carter decisions, the Supreme Court provided the remedy of tuition reimbursement to the parents of children who were entitled to receive a FAPE but did not receive it. The remedy is available to all parents who otherwise meet the criteria set forth in those decisions, regardless of whether the expenses which they incur arise from placement of their children in other public schools or in private schools. Accordingly, absent another equitable ground for reduction, the parent is entitled to reimbursement and/or direct funding for the full cost of the student's tuition.
2. Excessive Services
Notwithstanding the above, the district also presents an argument that the portion of the school day during which the student received religious instruction exceeded the level required under the IDEA for a FAPE. Among the factors that may warrant a reduction in tuition under equitable considerations is whether the frequency of the services or the rate for the services were excessive (see E.M., 758 F.3d at 461 [noting that whether the amount of the private school tuition was reasonable is one factor relevant to equitable considerations]). An IHO may consider evidence regarding the reasonableness of the costs of the program or whether any segregable costs exceeded the level that the student required to receive a FAPE (see L.K. v. New York City Dep't of Educ., 2016 WL 899321, at *7 [S.D.N.Y. Mar. 1, 2016], aff'd in part, 674 Fed. App'x 100). More specifically, while parents are entitled to reimbursement for the cost of an appropriate private placement when a district has failed to offer their child a FAPE, it does not follow that they may take advantage of deficiencies in the district's offered placement to obtain all those services they might wish to provide for their child at the expense of the public fisc, as such results do not achieve the purpose of the IDEA. To the contrary, "[r]eimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71 [emphasis added]; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148). Accordingly, while a parent should not be denied reimbursement for an appropriate program due to the fact that the program provides benefits in addition to those required for the student to receive educational benefits, a reduction from full reimbursement may be considered where a unilateral placement provides services beyond those required to address a student's educational needs (L.K., 674 Fed. App'x at 101; see C.B. v. Garden Grove Unified Sch. Dist., 635 F. 3d 1155, 1160 [9th Cir. 2011] [indicating that "[e]quity surely would permit a reduction from full reimbursement if [a unilateral private placement] provides too much (services beyond required educational needs), or if it provides some things that do not meet educational needs at all (such as purely recreational options), or if it is overpriced"]; Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1161 [5th Cir. 1986] ["The Burlington rule is not so narrow as to permit reimbursement only when the [unilateral] placement chosen by the parent is found to be the exact proper placement required under the Act. Conversely, when [the student] was at the [unilateral placement], he may have received more 'benefit' than the EAHCA [the predecessor statute to the IDEA] requires"]).
Here, the district also asserts that the portion of the school day attributed to religious instruction was in excess of what the district would have been required to deliver to the student as part of a FAPE. However, the district does not provide any support for the proposition that the subject matter of a particular class period could cause the class to be treated as a segregable special education service for these purposes, rather than as the type of feature that is "inextricably linked to the substitution" of a private program for a public one (Bd. of Educ. of City Sch. Dist. of City of New York v. Gustafson, 2002 WL 313798, at *7 [S.D.N.Y. Feb. 27, 2002] [finding features such as small class size or greater personal attention were not segregable]). With regard to the degree to which the services are segregable, the authority relating to excessive services applies most frequently when the services are delivered in a separate location or by a provider not affiliated with the main tuition-based program and/or where the costs of the services are itemized or separately billed (see, e.g., Application of a Student with a Disability, 23-130; Application of a Student with a Disability, Appeal No. 21-086; Application of a Student with a Disability, Appeal No. 14-071).
In this instance, the sole factor pointed to by the district is the student's class schedule which specifically identifies prayer and religious studies as accounting for 20.18 percent of the student's school day (Parent Ex. F). According to the principal, 20.18 percent identified on the student's schedule included prayer time and religious studies courses (Tr. pp. 36-38; Parent Ex. F). However, with respect to the nonprayer portion, identified as religious studies, the principal also indicated that there was an educational benefit to those classes, noting that the students take notes, the classes are text-based, and "a regular subject" (Tr. pp. 36-38).
While the district argues for a reduction based solely on the amount of time spent in classes identified as religious studies, there is no indication in the hearing record that costs for any of the student's classes equates to funding for any other class. Additionally, as the hearing record provides no concrete information as to the school's method for financing its activities, there is no reasoned way to know what portion of the student's tuition, if any, was actually used to pay for the portions of the school day devoted to religious instruction. Even if the proportion of the student's schedule devoted to "religious studies" could plausibly be calculated based solely on the student's schedule, this would raise still more questions regarding the incorporation of religion in other aspects of the day and/or the educational benefits that the student may have received through the periods devoted to "religious studies" beyond the religious aspect. Rather, "the situation does not permit a fair approximation of the value of the services received" compared to the program overall and, therefore, equity supports full reimbursement (Gustafson, 2002 WL 313798, at *7).
Accordingly, the parent is entitled to reimbursement or direct funding for the full cost of the student's tuition.
VII. Conclusion
Based on the foregoing, the evidence in the hearing record leads to the conclusion that the IHO erred in finding that MBYA Prep was inappropriate unilateral placement, and instead the evidence shows that the private school provided specially designed instruction to address the student's unique needs under the totality of the circumstances. Additionally, having reviewed the evidence in the hearing record, there is no basis to conclude that federal regulation or the Establishment Clause bars the district from funding the religious portion of the student's education program at MBYA Prep and the evidence in the hearing record does not support the district's reasoning that the fact that the student also spent time "religious instruction" required a reduction in the funding of the costs of the student's tuition at MBYA Prep for the 2024-25 school year as equitable relief.
I have considered the parties' remaining contentions and find them to be without merit.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that the IHO's decision dated March 5, 2025 is modified by reversing those portions that found MBYA Prep was not an appropriate unilateral placement for the student for the 2024-25 school year and denied relief; and
IT IS FURTHER ORDERED that the district shall fund the total cost of the student's tuition at MBYA Prep for the 2024-25 school year including reimbursement paid to the parent for tuition payments that the parent made toward the tuition costs at MBYA Prep.
Footnotes
[1] The student's eligibility for special education as a student with a learning disability is not in dispute (see 34 CFR 300.8[c][10]; 8 NYCRR 200.1[zz][6]).
[2] The assistant principal of the assigned school notified the parent, on September 10, 2024, that the school could not accommodate 10 periods per week of ICT services in ELA, social studies, and sciences but could accommodate five periods per week in those subjects (Parent Ex. C).
[3] MBYA Prep has not been approved by the Commissioner of Education as a school with which districts may contract to instruct students with disabilities (see 8 NYCRR 200.1[d], 200.7).
[4] The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 580 U.S. at 402).
[5] Inconsistent with the description of the student in the present levels of performance, the IEP lists the student's instructional/functional levels in math as fifth grade, without further explanation (Dist. Ex. 1 at p. 19).
[6] The schedule and course description identified Jewish history, "the Holocaust and Zionism," and "Women in Jewish History" as individual courses exploring Jewish history (Parent Exs. E at pp. 2-3; F). The course description also identified Jewish studies as encompassing three separate classes, including Chumash (religious studies), Halacha (laws of Shabbat), and Tehilim/Psalms (Parent Ex. E at pp. 4-5). Overall, according to the student's school schedule, 20.18 percent of the student's school day was spent in religious studies, which the principal described as encompassing prayer time and religious studies courses (Tr. pp. 36-38; Parent Ex. F).
[7] The principal testified that students at MBYA Prep had daily prayer periods scheduled each morning for 20 minutes and each afternoon for 10 minutes (Tr. pp. 35-36).
[8] While a relevant factor to be considered in determining whether a unilateral placement is appropriate (Gagliardo, 489 F.3d at 115, citing Berger, 348 F.3d at 522 and Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]), it is well settled that a finding of progress is not required for a determination that a student's unilateral placement is adequate (Scarsdale Union Free Sch. Dist. v. R.C., 2013 WL 563377, at *9-*10 [S.D.N.Y. Feb. 4, 2013] [noting that evidence of academic progress is not dispositive in determining whether a unilateral placement is appropriate]; see M.B. v. Minisink Valley Cent. Sch. Dist., 523 Fed. App'x 76, 78 [2d Cir. Mar. 29, 2013]; D.D-S. v. Southold Union Free Sch. Dist., 506 Fed. App'x 80, 81 [2d Cir. Dec. 26, 2012]; L.K. v. Ne. Sch. Dist., 932 F. Supp. 2d 467, 486-87 [S.D.N.Y. 2013]; C.L. v. Scarsdale Union Free Sch. Dist., 913 F. Supp. 2d 26, 34, 39 [S.D.N.Y. 2012]; G.R. v. New York City Dep't of Educ., 2009 WL 2432369, at *3 [S.D.N.Y. Aug. 7, 2009]; Omidian v. Bd. of Educ. of New Hartford Cent. Sch. Dist., 2009 WL 904077, at *22-*23 [N.D.N.Y. Mar. 31, 2009]; see also Frank G., 459 F.3d at 364).
[9] According to State regulation, with respect to mathematics, students entering grade nine for the 2008-09 school year, or thereafter, are required to obtain "three units of credit of mathematics, which shall be at a more advanced level than grade eight, shall meet commencement level learning standards as determined by the commissioner, provided that no more than two credits shall be earned for any Algebra 1, Geometry, or Algebra 2 commencement level mathematics course" (8 NYCRR 100.5[a][3][iv]).
[10] In L.M. v. Evesham Tp. Bd. Of Educ., the district court did not decide whether the parent was eligible for tuition reimbursement because the court remanded the case to determine whether the student was offered a FAPE and if the unilateral placement was appropriate (256 F. Supp. 2d at 305).
[11] The second prong of the test set forth in Lemon v. Kurtzman, which has since been abandoned, was that the government action could not have a primary effect of advancing or inhibiting religion (403 U.S. 602, 612-13; see (Kennedy v Bremerton School Dist., 597 U.S. 507, 510 [2022] [holding that the Supreme Court "long ago abandoned Lemon and its endorsement test offshoot"]).
[12] Rather than weighing the amount of time the student spent receiving religious instruction, or instruction not tied to special education or an academic curriculum, as an equitable consideration, the proportionate amount of time the student spent receiving such instruction during the school day may, in some cases, weigh as a factor regarding the appropriateness of the unilateral placement (see, e.g., Doe v. E. Lyme Bd. of Educ., 2012 WL 4344304, at *19 [D Conn Aug. 14, 2012] [finding a unilateral placement inappropriate because the school did not provide special education supports and the student spent a substantial amount of time receiving religious education], adopted as mod at, 2012 WL 4344301 [D Conn Sept. 21, 2012], aff'd in part, vacated in part, remanded sub nom. 790 F.3d 440 [2d Cir 2015]). However, here, as described above, MBYA Prep provided an appropriate program for the student and the purported religious instruction (see Parent Ex. F) did not compromise a majority of the school day.