UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------- X
M.M. and M.M., individually : and on behalf of G.M., and G.M., : MEMORANDUM DECISION AND : ORDER Plaintiffs, : : 21-cv-3693 (BMC) - against - :
NEW YORK CITY DEPARTMENT OF : EDUCATION; NEW YORK CITY BOARD : OF EDUCATION; and MEISHA PORTER, : in her official capacity as Chancellor of the : New York City Department of Education, :
Defendants. :
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COGAN, District Judge.
The parties have cross-moved for judgment on the pleadings in this Individuals with
Disabilities Education Improvement Act (“IDEA”) case, in which plaintiffs seek reimbursement
for their unilateral educational placement for the 2018-2020 school years, as well as declaratory
relief for defendants’ alleged violation of Section 504 of the Rehabilitation Act and a
compensatory education award. An Impartial Hearing Officer (“IHO”) and State Review Officer
(“SRO”) have considered and rejected plaintiffs’ arguments.
Upon review of the record and mindful of the weight I owe their educational policy
determinations, I find that certain portions of the IHO’s and SRO’s decisions were not well-
reasoned or supported by the record. Specifically, I overturn their conclusions that plaintiffs’
unilateral placement was not appropriate. In essence, the unilateral placement got reasonably
close to the placement recommended in plaintiffs’ individualized education plan (“IEP”),
considering that defendants could neither offer nor recommend anything remotely similar to the
requirements of the IEP. Therefore, I grant plaintiffs’ request for tuition reimbursement for the
2018-2020 school years. I uphold the IHO’s and SRO’s decisions denying plaintiffs’ Section
504 claim and motion for compensatory education.
BACKGROUND
I. Educational
Plaintiffs bring this action on behalf of their minor child, G.M., alleging that defendants
were required to fund G.M.’s education at the Nord Anglia International School (“NAIS”) for the
2018-2019 and 2019-2020 school years because the Department failed to provide her with a free
appropriate public education (“FAPE”).
Defendants’ Committee on Special Education (“CSE”) classifies G.M. as a student with
autism; she has also been diagnosed with an autism spectrum disorder and ADHD. She comes
from an English/Spanish bilingual home and her primary language is Spanish. Her school
district convened an IEP review in 2017, and the CSE recommended that G.M. attend a 6:1+1 1
“bilingual Spanish Special Class in a New York State Approved Non-Public School – Day, with
the related services of occupational therapy and speech-language therapy.” The district further
recommended that G.M. attend a bilingual Spanish district-run “Special Class 12:1+1” in District
75 as an interim measure until defendants could secure such a placement. Defendants did not
recommend a permanent placement prior to the 2017-18, 2018-2019, or 2019-2020 school years.
They did recommend an interim placement at an English-language District 75 public school just
before the start of the 2017 school year, but the parties agree that that school would not have
provided G.M. with a FAPE. The parents notified defendants that they were unilaterally placing
her in a private school and would seek tuition reimbursement.
1 A ratio of 6 students to 1 teacher, with 1 aide.
2
For the 2017-2018 year, the parents sent G.M. to NAIS, where she was a kindergartener
(in NAIS terms, a Year I student). 2 G.M. repeated Year I at NAIS for the 2018-2019 school
year. On May 1, 2019, the CSE convened to develop another IEP for G.M., which culminated in
an IEP that recommended essentially the same placement and related services as the 2017 IEP.
The parents notified defendants of their intention to re-enroll G.M. in NAIS for the 2019-2020
school year and seek reimbursement, as defendants again failed to place G.M. in an appropriate
school. G.M. was a Year II student at NAIS for the 2019-2020 school year.
The parties agree that NAIS did not provide G.M. with the exact services that the CSE
recommended for her (namely, speech-language therapy and occupational therapy), nor did it
offer Spanish-only or bilingual instruction. They dispute whether NAIS provides “special”
education. Defendants argue that NAIS provides “personalized learning,” which includes
“differentiated activities,” but that their educational program “is separate and distinct from
special education.” Plaintiffs contend that NAIS was an appropriate educational placement, even
though the school did not formally provide Spanish-language instruction or the IEP’s related
services, because it provided G.M. with a functionally equivalent education. Similarly, although
plaintiffs recognize that NAIS is a general education program (as opposed to a formal special
education program), they argue that it was nevertheless an appropriate, “specially designed”
education.
Plaintiffs describe several aspects of G.M.’s education to demonstrate it met her needs.
NAIS uses the English National Curriculum, which is a skills-based program that utilizes
pedagogical techniques such as “repetition of previously learned skills.” NAIS provides
“differentiated education,” which means that the curricula are tailored to students’ unique
2 The 2017-2018 school year is not at issue here, as the parties entered into a settlement agreement in which defendants agreed to retroactively fund G.M.’s tuition for that year.
3
functioning levels. The school uses two behavioral plans that plaintiffs claim “have proven to be
effective for educating students with disabilities at NAIS.” The plans include multisensory
instruction and fine motor skills training.
For the 2018-2019 school year, G.M. was in a class of 12 students. One other student in
her class was diagnosed with autism. Ms. Wright taught the class and Ms. De Leon, who was
fluent in Spanish, served as the learning assistant. Ms. Wright is an experienced teacher from the
United Kingdom, but is not certified in New York State. G.M. received social skills instruction
from the Head of Inclusion (Mr. Hitchen), who is similarly qualified in the United Kingdom but
not New York State. Both Ms. Wright and Mr. Hitchen have special education experience.
For the 2019-2020 school year, G.M. was in a class of 11 students, which was broken up
into smaller groups of four students or fewer. Like the prior year, one other student in her class
was diagnosed with autism. Ms. Moffat (also certified in the United Kingdom but not New
York) taught the class and Ms. Choi served as the learning assistant. Spanish language support
was provided by Ms. Moffat (who speaks Spanish) and another teacher (a native Spanish
speaker), with additional support from Ms. De Leon, who was stationed in the next room. Mr.
Hitchen taught a class that focused on “emotional intelligence and social skills.” Ms. Moffat
also kept a Google Home device for translation “in the rare instances no support from a Spanish
speaking staff member was available.”
II. Procedural
Plaintiffs filed due process claims against the school district for failing to provide a FAPE
for the 2018-2020 school years, seeking tuition reimbursement for that period. The IHO found
that although the district failed to provide G.M. with a FAPE (as defendants have conceded),
plaintiffs did not demonstrate that NAIS was an appropriate placement. Therefore, the IHO
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denied the reimbursement request. Specifically, the IHO found that NAIS was not appropriate
because it did not provide G.M. with a bilingual program, special education, or the related
services in her IEP. The IHO also found that plaintiffs failed to demonstrate that defendants
violated Section 504 and, because plaintiffs unilaterally placed G.M. in a private school,
plaintiffs were not entitled to compensatory education with respect to the IEP’s related services.
The SRO affirmed the IHO’s decision on the same grounds, finding that NAIS did not
provide an educational experience that was sufficiently tailored to G.M.’s Spanish and special
education needs, and rejected plaintiffs’ reimbursement, Section 504, and compensatory
education arguments. Both the IHO and SRO recognized that G.M. made academic progress at
NAIS, but nevertheless found that plaintiffs had not established it was an appropriate placement.
Plaintiffs appealed those decisions to this Court and have moved for judgment on the
pleadings, seeking to overturn the IHO’s and SRO’s decisions. Defendants have cross-moved
for judgment on the pleadings, asking the Court to uphold those decisions.
DISCUSSION
I. Tuition Reimbursement
A. Legal Framework
New York parents who “believe an IEP is insufficient under the IDEA . . . may challenge
it in an ‘impartial due process hearing,’ before an [IHO] appointed by the local board of
education.” Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003). When
parents challenge an IEP and unilaterally place their children in private school, the IHO applies
the Burlington/Carter test to determine whether tuition reimbursement is appropriate: “(1) the
DOE must establish that the student’s IEP actually provided a FAPE; should the DOE fail to
meet that burden, the parents are entitled to reimbursement if (2) they establish that their
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unilateral placement was appropriate and (3) the equities favor them.” M.W. ex rel. S.W. v. New
York City Dep’t of Educ., 725 F.3d 131, 135 (2d Cir. 2013) (citing Sch. Comm. of Town of
Burlington v. Dep’t of Educ., 471 U.S. 359 (1985), and Florence Sch. Dist. Four v. Carter, 510
U.S. 7 (1993)). “[A] parent or person in parental relation seeking tuition reimbursement for a
unilateral parental placement shall have the burden of persuasion and burden of production on
the appropriateness of such placement.” N.Y. Educ. Law § 4404(1).
IHO appeals are heard by an SRO. C.F. ex rel. R.F. v. New York City Dep’t of Educ.,
746 F.3d 68, 73 (2d Cir. 2014). Parties may subsequently challenge SRO determinations in
federal court. 20 U.S.C. § 1415(i)(2). When a party challenges an SRO decision, “the district
court shall receive the records of the administrative proceedings . . . and, basing its decision on
the preponderance of the evidence, shall grant such relief as the court determines is appropriate.”
Id.
Federal courts reviewing SRO decisions conduct an independent review of the record,
while affording appropriate deference to the IHO and SRO decisions:
[T]he role of the federal courts in reviewing state educational decisions under the IDEA is circumscribed. A reviewing court must engage in an independent review of the administrative record and make a determination based on a preponderance of the evidence. Such review, however, is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review. To the contrary, federal courts reviewing administrative decisions must give ‘due weight’ to these proceedings, mindful that the judiciary generally lacks the specialized knowledge and experience necessary to resolve persistent and difficult questions of educational policy. While federal courts do not simply rubber stamp administrative decisions, they are expected to give due weight to these proceedings. A.K. v. Westhampton Beach Sch. Dist., No. 17-cv-866, 2021 WL 6776236, at *11 (E.D.N.Y.
Dec. 22, 2021) (cleaned up), aff’d sub nom., Killoran v. Westhampton Beach Sch. Dist., No. 22-
cv-204, 2023 WL 4503278 (2d Cir. July 13, 2023). As the Supreme Court has held, a district
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court’s review is “by no means an invitation to the courts to substitute their own notions of sound
educational policy for those of the school authorities which they review.” Bd. of Educ. of
Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley, 458 U.S. 176, 206 (1982).
However, the deference owed to the IHO and SRO decisions is not absolute, and the extent to
which courts must defer to their decisions “will hinge on the kinds of considerations that
normally determine whether any particular judgment is persuasive, for example whether the
decision being reviewed is well-reasoned, and whether it was based on substantially greater
familiarity with the evidence and the witnesses than the reviewing court.” M.H. v. N.Y.C. Dep’t
of Educ., 685 F.3d 217, 244 (2d Cir. 2012).
“The issue turns on whether a placement – public or private – is reasonably calculated to
enable the child to receive educational benefits.” Gagliardo v. Arlington Cent. Sch. Dist., 489
F.3d 105, 112 (2d Cir. 2007). As the Second Circuit has reasoned:
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. Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364-65 (2d Cir. 2006) (cleaned up).
B. Appropriateness of Unilateral Placement
Plaintiffs contend that the IHO and SRO did not properly consider G.M.’s progress at
NAIS and that, if they had, they would have deemed it an appropriate placement. The IHO and
SRO both held that, although G.M.’s progress at NAIS provided some indication that her
placement had been beneficial, it was not sufficient to render the placement appropriate.
A district court decision can overturn the SRO’s non-reimbursement determination where
the SRO did not consider such improvements. For instance, in Frank G., the Court noted that the
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SRO did not have the opportunity to consider evidence that the student’s test scores and grades
had improved, including a “phenomenal” score on the student’s standardized testing. Id. at 362.
Here, by contrast, G.M.’s academic record was fully before the IHO and SRO. This is
important, as “[a]n assessment of educational progress is a type of judgment for which the
district court should defer to the SRO’s educational experience, particularly where, as was the
case here, the district court’s decision was based solely on the record that was before the SRO.”
M.S. ex rel. S.S. v. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96, 105
(2d Cir. 2000), abrogated on other grounds, Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49
(2005).
Both the IHO and the SRO analyzed G.M.’s academic progress. This includes her report
cards, qualitative progress reports, and oral testimony by her teachers. Although both the IHO
and the SRO recognized that these metrics demonstrated some degree of academic progress, they
found that such progress did not outweigh other considerations that cautioned against a finding
of appropriateness. See Gagliardo, 489 F.3d at 115 (“a child’s progress is relevant to the court’s
review . . . [but] does not itself demonstrate that a private placement was appropriate”).
Specifically, the SRO agreed with the IHO’s finding that there was insufficient evidence of
specialized education that was tailored to G.M., including her special education and Spanish-
language needs.
The SRO considered several educational benefits produced by NAIS’s pedagogical
methods, including its small class size and “inclusion model,” which the SRO described as a
method that “focuses on assessing individual student needs without a strict delineation between
general education needs and special education needs.” But the SRO nevertheless determined that
those “environmental advantages and amenities” were of the variety that would benefit any
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student. In other words, the SRO felt they were not “specially designed to meet the unique needs
of” the student. See Frank G., 459 F.3d at 365. On this point, defendants argue that “even where
there is evidence of success, courts should not disturb a state’s denial of IDEA reimbursement
where . . . the chief benefits of the chosen school are the kind of educational and environmental
advantages and amenities that might be preferred by parents of any child, disabled or not.”
Gagliardo, 489 F.3d at 115.
Chief among the ISO’s and SRO’s concerns was NAIS’s failure to provide Spanish-
language classes, or at least bilingual (English and Spanish) classes, despite the fact that G.M.’s
IEP called for placement in a Spanish special class with speech-language therapy. The IHO and
SRO considered the Spanish assistance that G.M. received, including her Spanish-speaking
teacher and aide, and determined that the assistance was not sufficient to satisfy her language
needs, since her general education classes were still taught monolingually in English.
The IHO and SRO similarly found that NAIS was not an appropriate placement because
it did not provide G.M. with her IEP’s related services of speech-language and occupational
therapy, which they thought necessary to help with her language delays and difficulties with
functional tasks, such as handwriting.
Plaintiffs argue that the IHO and SRO erred by holding that NAIS was not an appropriate
placement vis-à-vis G.M.’s IEP. They emphasize that the standard for determining the
appropriateness of a parent’s unilateral placement is more relaxed than when determining
whether a district has provided the student with a FAPE. The Circuit has made that clear:
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.
9
Frank G., 459 F.3d at 365 (cleaned up). Plaintiffs claim that the IHO and SRO held plaintiffs to
an improperly strict standard by requiring them to have placed G.M. in a program that was
virtually identical to the one envisioned by her IEP.
Plaintiffs overstate the point, but not by much. Both the IHO and SRO cited Frank G. for
the above proposition and considered (at least nominally) the possibility that NAIS provided
services that partially addressed G.M.’s needs, despite the fact that the educational program was
not formally consistent with her IEP, ultimately deciding that those attributes were not sufficient
to establish the appropriateness of the unilateral placement. Thus, their decisions leave open the
possibility that they would have found a placement appropriate even if it deviated from the IEP
to some degree, albeit a lesser degree than NAIS’s deviation from G.M.’s IEP. However, they
required too precise of a fit, especially given the circumstances of this case.
Namely, the IHO and SRO did not afford proper weight to defendants’ failure to
recommend any placement whatsoever that would have satisfied G.M.’s IEP. In so doing, the
IHO and SRO ignored a fundamental unfairness at the core of this case. Defendants
acknowledge that G.M. was entitled to special education in a Spanish nonpublic school with
certain related services. Defendants could not find a school for G.M. that came close to
satisfying those conditions, so her parents found one that satisfied many, but not all, of those
conditions. Assuming no school existed that could satisfy G.M.’s educational needs as laid out
in her IEP – a reasonable assumption, given that defendants never recommended a satisfactory
program, even after G.M. had spent two years at NAIS – what were plaintiffs to do? Under the
IHO’s and SRO’s rulings, plaintiffs could not receive tuition reimbursement for any school G.M.
attended, as, according to defendants, there was simply no school sufficiently similar to her IEP
to permit reimbursement. And, because she had just finished preschool when she received and
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challenged the 2017 IEP, she could not stay at her current school (i.e., she needed to find an
elementary school to start kindergarten). The SRO recognized the futility of the latter approach,
as defendants offered her no suitable school at which she could “stay put.”
The parties agree that G.M. needed special education (the 2017 IEP) and could not
receive that education without finding a new school. Defendants admitted that they could not
find a school that would provide that education. Then, once plaintiffs found a new school – as
the parties agree plaintiffs had to – plaintiffs supposedly relinquished G.M.’s entitlement to her
FAPE. To deny plaintiffs recovery would allow defendants to benefit from their failure to
provide G.M. with an appropriate placement. Instead of requiring defendants to provide G.M.’s
FAPE, they could simply fail to find a suitable program and shirk their responsibilities under the
IDEA altogether.
That is precisely the outcome the IHO and SRO permitted. Although I must not
substitute my “own views on educational policy 3 for those of the school authorities,” it is my
responsibility to independently verify their determinations. See W.A. v. Hendrick Hudson Cent.
Sch. Dist., 927 F.3d 126, 143 (2d Cir. 2019); see also Mr. P v. W. Hartford Bd. of Educ., 885
F.3d 735, 748 (2d Cir. 2018) (courts must not “rubber stamp administrative decisions”). Even
when the SRO and IHO agree that a placement is inappropriate, as is the case here, their
decisions do not merit deference if they are not well-reasoned or are unsupported by the record.
S.B. v. New York City Dep’t of Educ., No. 15-cv-1869, 2017 WL 4326502, at *9 (E.D.N.Y.
Sept. 28, 2017).
3 Under the circumstances, it is not readily apparent that the IHO’s and SRO’s decisions about whether NAIS came close enough to satisfying G.M.’s IEP is a “policy” decision. Nor is it clear that defendants’ failure to find an appropriate placement for G.M. reflected a policy decision, or really a decision of any kind. It was more a reality necessitated by the lack of educational options available to her. However, assuming arguendo that those constitute policy decisions, I find they were not well-reasoned and, therefore, do not defer to them.
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The closest defendants came to finding a school for G.M. was their recommendation of
an interim placement in a District 75 public school that, by all accounts, was not nearly able to
provide G.M. with the education she required. When considering that defendants never found an
appropriate private placement, it is clear that NAIS’s deviations from G.M.’s IEP are not
substantial enough to render the unilateral placement inappropriate. Thus, although the IHO and
SRO decisions were detailed and evince a meaningful engagement with the record, their
conclusions about appropriateness were not well-reasoned because they did not adequately
consider plaintiffs’ lack of options.
With respect to NAIS’s language services, the record makes clear that the school ensured
G.M. had access to resources crafted to fit her bilingual needs, including translation technology
and Spanish-speaking teachers and aides, such that G.M. always had access to assistance in
Spanish. Although those services are not identical to Spanish or bilingual instruction, they were
sufficiently tailored to achieve the same outcome as those services: that G.M. would not fall
behind because of her Spanish-language dominance. Additionally, the district’s recommended
placement at a District 75 public school was not in a Spanish-language or bilingual classroom.
Thus, defendants tacitly agree that, at least as an interim placement, a Spanish-only or bilingual
class was not a necessity for G.M.’s education.
With respect to special education, the IHO and SRO recognized that NAIS’s inclusion
model and small class size allowed it to tailor educational programs to each student’s specific
needs. Although they characterized the benefits as the type that would benefit all students, that’s
reading Gagliardo too narrowly. It is undebatable that an educational program that considers
each student’s needs and modifies instruction appropriately would benefit all students: who
wouldn’t want their child’s school to cater to their specific needs? If that were enough to render
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a unilateral placement inappropriate, then no unilateral placement could ever be deemed
appropriate. What matters is not that NAIS had a general policy of tailoring instruction to
students’ individual needs, but the ways in which it did so for G.M. The IHO and SRO
recognized several of these accommodations, including her differentiated instruction,
individualized feedback, and time spent with a specialist focused on emotional and educational
support tailored to her special education needs. But they erred in writing those off as general
benefits, especially considering that defendants never recommended an appropriate private
placement and there is nothing in the record to suggest the District 75 public placement could
have provided nearly as tailored of an approach.
For the same reasons, the fact that G.M. did not receive the related services exactly as
they were outlined in her IEP (occupational therapy and speech-language therapy) does not make
NAIS inappropriate. The record reflects that NAIS tailored G.M.’s individualized education
with these needs in mind, including through her small-group instruction in phonics, language
modeling, handwriting, and fine motor skills. Further, G.M.’s progress in language and
occupational tasks demonstrates that her education was “reasonably calculated to enable [her] to
receive educational progress, such that the placement [was] likely to produce progress, not
regression. See T.K., 810 F.3d at 877 (cleaned up). In effect, despite their claims to the
contrary, the IHO and SRO made the same error as in T.K. v. New York City Dep’t of Educ.,
810 F.3d 869, 878 (2d Cir. 2016): “believing that the failure to include multiple services that
were properly recommended in an IEP necessarily renders a private placement inappropriate,
both the SRO and the IHO ultimately concluded that [NAIS] was not an appropriate placement.”
Because the IHO and SRO did not properly consider defendants’ failure to provide G.M.
with an appropriate placement and plaintiffs’ lack of any better option, I decline to defer to their
13
decisions regarding the appropriateness of plaintiffs’ unilateral placement. Having conducted an
independent review of the record, I am convinced that NAIS was specially designed to meet
G.M.’s unique needs, and her academic progress confirms that the design was successful.
Therefore, I overturn the IHO’s and SRO’s determinations and conclude that NAIS was
appropriate.
C. Equities
Because the IHO and SRO found the unilateral placement inappropriate, they did not
reach the issue of whether the equities would favor reimbursement. Defendants acknowledge
that there is no “equitable bar to relief.” That is putting things lightly. Far from barring relief,
the equities plainly favor reimbursement.
Plaintiffs’ placement of G.M. at NAIS “reflects a good-faith effort to find an appropriate
placement for their daughter, not just a mere preference for a private school environment.” See
id. at 879. It appears that plaintiffs were cooperative with the district in developing the 2017 IEP
for G.M. and only opted to place her in private school when, a week before the start of a new
school year, the district informed them that there was no appropriate placement for G.M. See
C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 (2d Cir. 2014). Plaintiffs again
participated in developing the 2019 IEP, despite defendants’ failure to place G.M. in either 2018
or 2019. They also provided appropriate notice to defendants of their intention to keep G.M. at
NAIS and seek reimbursement. See W.M. v. Lakeland Cent. Sch. Dist., 783 F. Supp. 2d 497,
504-05 (S.D.N.Y. 2011). That G.M.’s three older siblings all received IEPs and attended public
schools further indicates that the parents engaged in the IEP process in good faith and only
placed G.M. at NAIS because the district was unable to find an appropriate placement.
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Defendants’ repeated failure to place G.M. in an appropriate school is critical to the
equities analysis. Had the district placed G.M. in a school that was close to meeting her FAPE
and the parents decided to place her in a private school regardless, then perhaps equity would
require a reduction in the reimbursement amount. But here, where the institutions tasked with
providing G.M. her FAPE failed to do so, the equities do not merely favor reimbursement: they
demand it.
That is not to say that defendants’ failure to offer G.M. an appropriate placement gave
plaintiffs carte blanche to place G.M. at any school of their choosing and demand
reimbursement. Rather, they needed to select a school with an “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.” Frank G., 459 F.3d at 365. As
discussed above, NAIS meets the mark. Therefore, plaintiffs have satisfied the
Burlington/Carter framework for their unilateral placement and defendants are required to
reimburse plaintiffs for G.M.’s education at NAIS for the 2018-2020 school years.
II. Section 504
To establish a prima facie violation of Section 504 of the Rehabilitation Act, 29 U.S.C.
794(a), plaintiffs must show that G.M. (1) is a “disabled person” under the Rehabilitation Act;
(2) is “otherwise qualified” for the program; (3) is excluded from benefits solely because of her
disability; and (4) the program or special service in question receives federal funding. C.L.,744
F.3d at 840-41. Plaintiffs also must establish “proof of bad faith or gross misjudgment,” id. at
841, and that the violation resulted from “deliberate indifference” to a disabled person’s rights
under the Rehabilitation Act. Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98,
115 (2d Cir. 2001).
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Plaintiffs’ claim under Section 504 fails because they offer no evidence from which I
could conclude that defendants exercised bad faith, gross misjudgment, or deliberate indifference
toward G.M. and her educational needs. Plaintiffs assert that defendants’ failure to establish
more Spanish-language schools amounts to bad faith, but they do not “point to any concrete
evidence to support the assertion,” so “no reasonable factfinder could find bad faith or gross
misjudgment.” See C.L., 744 F.3d at 841.
Plaintiffs claim that defendants did not permit them to present evidence pertaining to the
Section 504 claim, since the IHO only had jurisdiction over their IDEA cause of action. This
accusation is irrelevant, as neither plaintiffs’ motion for judgment on the pleadings nor their
reply points to any evidence of bad faith, gross misjudgment, or deliberate indifference. Thus,
even if plaintiffs are right that they were deprived of the opportunity to argue their Section 504
claim before the IHO and SRO, they had the chance to supplement the record on their Section
504 claim before this Court, thereby alleviating any prejudice. They declined that opportunity
(they never sought to supplement the record) and, as already stated, their briefing papers merely
assert bad faith without even alluding to any evidence of the same. 4
Because plaintiffs have not presented any evidence that defendants acted in bad faith or
with gross misjudgment, there is no basis to hold that defendants violated the Rehabilitation Act.
III. Compensatory Education
Finally, plaintiffs claim they are entitled to compensatory education pursuant to the
pendency provisions of IDEA. They argue they should receive compensation in connection with
4 “In any action brought under this paragraph the court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate.” 20 U.S.C. § 1415(i)(2)(C) (emphasis added); see also Mavis v. Sobol, 839 F. Supp. 968, 979 (N.D.N.Y. 1993) (permitting plaintiffs to supplement the record to present additional evidence that was not before the hearing officer); M.B. v. New York City Dep’t of Educ., No. 14-cv-3455, 2015 WL 6472824, at *2 (S.D.N.Y. Oct. 27, 2015) (“The taking of additional evidence is a mater . . . left to the discretion of the trial court.”).
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the related services indicated by the 2017 IEP (speech-language and occupational therapy), as
that was G.M.’s last agreed-upon placement and defendants were required to maintain that
placement during the pendency of the IEP challenge.
“To determine a child’s then-current educational placement, a court typically looks to: (1)
the placement described in the child’s most recently implemented IEP; (2) the operative
placement actually functioning at the time when the stay put provision of the IDEA was invoked;
or (3) the placement at the time of the previously implemented IEP.” Doe v. E. Lyme Bd. of
Educ., 790 F.3d 440, 452 (2d Cir. 2015) (cleaned up). In cases where there has been no IEP
implemented, courts focus on the operative placement to determine a student’s then-current
educational placement, as the other methods of determining a student’s then-current educational
placement assume the existence of an implemented IEP. See, e.g., Avaras v. Clarkstown Cent.
Sch. Dist., No. 15-cv-9679, 2018 WL 4103494, at *6 (S.D.N.Y. Aug. 28, 2018).
According to plaintiffs, the services listed in the 2017 IEP reflect the last agreed-upon
placement. Although plaintiffs challenged defendants’ failure to place G.M. in a specific school,
they otherwise agreed with the services outlined in the IEP. Therefore, they argue that
defendants were required to provide those agreed-upon services during the duration of this
action. Plaintiffs also claim that the IHO and SRO erred in holding that plaintiffs can only
recover compensatory education if they satisfy the Burlington/Carter test, as claims for funding
pursuant to pendency placement are evaluated independently from claims for tuition
reimbursement premised upon an inadequate IEP. See Mackey ex rel. Thomas M. v. Bd. of
Educ. For Arlington Cent. Sch. Dist., 386 F.3d 158, 161 (2d Cir. 2004).
Defendants respond that the 2017 IEP does not reflect the last agreed-upon placement,
since plaintiffs challenged it. The SRO premised its decision to deny compensatory education on
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defendants’ proffered grounds, holding that the IEP entitled G.M. to the related services in her
IEP only if she was also placed in a Spanish special class. Because G.M. was unilaterally placed
in a non-Spanish, non-special school, the SRO reasoned that she gave up her right to those other
services, lest she take and leave portions of the IEP on an “a la carte” basis. Alternatively, if the
IEP reflected the placement last agreed upon by the parties, defendants maintain that they are not
required to provide the related services to plaintiffs, who seek certain portions of the IEP’s listed
services while ignoring others.
The Second Circuit has made clear that the stay-put rule generally does not entitle
students to invoke the IDEA’s stay-put provision after a unilateral placement:
[W]hat the parent cannot do is determine that the child’s pendency placement would be better provided somewhere else, enroll the child in a new school, and then invoke the stay-put provision to force the school district to pay for the new school’s services on a pendency basis. To hold otherwise would turn the stay-put provision on its head, by effectively eliminating the school district’s authority to determine how pendency services should be provided.” Ventura de Paulino v. New York City Dep’t of Educ., 959 F.3d 519, 534 (2d Cir. 2020). 5
Defendants characterize plaintiffs as attempting to invoke the stay-put provision after a unilateral
private placement, in violation of Ventura. That is, assuming the 2017 IEP was G.M.’s last
agreed-upon placement, plaintiffs gave it up by placing her at NAIS.
“The idea of the ‘last agreed upon’ placement rests on the common-sense notion that a
presumptively appropriate, interim placement for all interested parties is one that was previously
acceptable to the parents and to the school district and, at least at one point, provided the child
with an appropriate education.” Neske v. New York City Dep’t of Educ., No. 19-cv-2933, 2019
5 There is a potential exception to this rule when “the school providing the child’s pendency services is no longer available and the school district either refuses or fails to provide pendency services to the child.” Ventura, 959 F.3d at 534 n.65 (emphasis in original). However, those circumstances are not present here and plaintiffs have not raised any argument that the exception otherwise applies.
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WL 5865245, at *3 (S.D.N.Y. Nov. 7, 2019), aff’d, 824 F. App’x 81 (2d Cir. 2020). Here, the
parties agree that G.M. was never placed in a school that could have provided her a FAPE, nor
did defendants recommend one to her. However, there was an agreement as to a “presumptively
appropriate” placement, which was the educational placement described in the IEP. See C.F.,
746 F.3d at 79 (“we have interpreted the term ‘educational placement’ to refer to the general
educational program – such as the classes, individualized attention and additional services a child
will receive – rather than the ‘bricks and mortar’ of the specific school.”) (cleaned up).
Therefore, G.M.’s pendency placement was her 2017 IEP. 6
By unilaterally placing G.M. at NAIS, plaintiffs gave up the right to require defendants to
provide the related services in her IEP as a pendency placement (i.e., the right to invoke the stay-
put provision). See Ventura, 959 F.3d at 534. To hold otherwise after finding plaintiffs’
unilateral placement appropriate would be inconsistent. As the IHO noted, plaintiffs
simultaneously argue that G.M. received an appropriate education at NAIS, meaning it
sufficiently met her IEP needs, and that she is entitled to related services, meaning G.M. was
deprived of them at NAIS. Both statements cannot be true at once. As I have already held,
NAIS was appropriate, despite failing to formally provide the related services indicated in
G.M.’s IEP. Therefore, G.M. was not deprived of the benefit of those services. Rather, she
received them in a different form at NAIS, through her specialized education.
As Ventura makes clear, plaintiffs had the right to unilaterally place G.M. upon deciding
that defendants’ placement was inappropriate. They are entitled to reimbursement for NAIS
because it was appropriate, but they cannot force defendants to provide the related services from
6 This determination is bolstered by the fact that if the 2017 IEP were not G.M.’s pendency placement, she would have no pendency placement at all, which is “an impossible result.” See Gabel ex rel. L.G. v. Bd. of Educ. of Hyde Park Cent. Sch. Dist., 368 F. Supp. 2d 313, 325 (S.D.N.Y. 2005).
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her IEP at a private school of their choosing. That would deprive defendants of their
“preexisting and independent authority to determine how to provide the most-recently-agreed-
upon educational program.” Id. (emphasis in original). 7 Therefore, plaintiffs are not entitled to
compensatory education for the related services in G.M.’s IEP.
CONCLUSION
Plaintiffs’ motion for judgment on the pleadings is granted with respect to tuition
reimbursement; defendants’ motion is denied with respect to the same. Plaintiffs’ motion for
judgment on the pleadings is denied with respect to the Section 504 claim and compensatory
education; defendants’ motion is granted with respect to the same.
SO ORDERED.
U.S.D.J.
Dated: Brooklyn, New York August 22, 2024
7 Plaintiffs have not argued that defendants’ placement was not made in “good faith,” regardless of its appropriateness. See Ventura, 959 F.3d at 534. Therefore, the logic that “it is up to the school district, not the parent, to decide how to provide [an] educational program until the IEP dispute is resolved” applies. See id.
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