UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------X SCHOOL FOR LANGUAGE AND COMMUNICATION DEVELOPMENT, et al.,
Plaintiffs, ORDER 02-CV-0269(JS)(JO) - against -
NEW YORK STATE DEPARTMENT OF EDUCATION, et al.,
Defendants. ------------------------------------X Appearances: For Plaintiffs: James M. Wicks, Esq. David A. Scheffel, Esq. Farrell Fritz, P.C. 1320 Reckson Plaza Uniondale, New York 11556
For Intervenor Robert L. Schonfeld, Esq. Plaintiffs Lynn Moritt Hock Hamroff & Horowitz LLP & Michael Koufakis 400 Garden City Plaza & Consuelo Choinski Garden City, New York 11530
For Defendant: Susan M. Connolly, Esq. Assistant Attorney General New York State Office of the Attorney General 300 Motor Parkway, Suite 205 Hauppauge, New York 11788
SEYBERT, District Judge,
INTRODUCTION
This action was commenced over four years ago by the
School for Language and Communication Development (“SLCD”), its
founder and executive director Dr. Ellenmorris Tiegerman-Farber
(“Tiegerman”) and five parents of disabled children who attend(ed)
SLCD. The action was brought against the New York State Education
Department (“NYSED”); Richard P. Mills, the New York State
Commissioner of Education; Lawrence Gloeckler, the Deputy
Commissioner for Vocational and Educational Services for
Individuals with Disabilities; Rebecca Cort, the Statewide
Coordinator of the Office of Special Education Quality Assurance;
Steven Berman, the Regional Supervisor of NYSED and Vesid Special
Education Quality Assurance (collectively, the “Defendants”). The
Plaintiffs alleged that Defendants, inter alia, violated their
rights guaranteed by the Individuals with Disabilities Education
Act ("IDEA"), 20 U.S.C. § 1400, et seq., by adopting a policy that
had the effect of imposing an arbitrary “cap” on the number school-
age children eligible to attend SLCD.
The Complaint has been amended twice and additional
parents of SLCD students have joined the litigation; in addition,
parents of two SLCD students have separately intervened. The
Parties have appeared before this Court on several occasions, most
recently in June of this year, when they reached an agreement to
keep certain students enrolled at SLCD for the upcoming school
year. Presently pending before the Court are Plaintiffs’
(including the intervenor Plaintiffs) and Defendants’ summary
judgment motions concerning the issue at the heart of this case:
whether NYSED’s policy violates the IDEA. For the reasons
explained below, the Court finds that NYSED’s policy is not in
contravention of the statute.
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BACKGROUND
SLCD is a private school that is located in Glen Cove,
New York. (Pls.’ R. 56.1 Statement ¶ 1.) Teigerman is its founder
and executive director. SLCD provides programs and services to
both pre-school (pre-Kindergarten) and school-age children with
severe language and communication disorders. (Pls.’ 56.1 ¶ 2.)
SLCD was permanently chartered by the State of New York Board of
Regents in 1985. (Defs.’ R. 56.1 Statement ¶ 3.1) SLCD’s charter
was most recently amended on Febrauary 8, 2005 to grant SLCD
provisional authority to, inter alia, educate children from ages 5-
21 and operate grades 7-12. (Sheffel Reply Aff., Ex. 56.)
NYSED is a state educational agency within the meaning of
the IDEA; as such, it is charged with ensuring proper compliance
with the IDEA. (Pls.’ ¶¶ 6, 7.) NYSED grants programmatic
approval to private institutions, such as SLCD, that provide
special education to children with disabilities. (Defs.’ 56.1 ¶ 5;
Pls.’ 56.1 Counter-Statement to Defendants’ R. 56.1 Statement ¶ 5.)
Programmatic approval is different from a certificate of
1 Plaintiffs aptly point out that Defendants’ Rule 56.1 Statement is utterly non-compliant with this Court’s Individual Rules. For example, in many instances, Defendants state a factual proposition, and then generally cite to a deposition transcript that is over one-hundred-sixty pages long; in addition, Defendants cite generally to an “Exhibit D,” which is not actually one document, but a collection of documents that is hundreds of pages long and is not even in chronological order. Rule 56.1 requires a party to provide pinpoint citations; this Court is not required to look for the proverbial “needle in a haystack.”
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authorization from the Board of Regents. It refers to NYSED’s
funding authorization of grades that can be taught, and the number
of students that may be enrolled at a school.2 The direct result
of being an institution that lacks programmatic approval is that
the NYSED will not reimburse school districts for students that are
enrolled beyond your cap number, or outside your instructional
level authorization. (See Defs.’ 56.1 ¶ 5; Pls.’ 56.1 ¶¶ 27-34.)
The practical result is that school districts will not recommend
your school, irrespective of its ability to take additional
students on. (Id. ¶¶ 27-34.)
NYSED has authorized SLCD to serve pre-school children
with disabilities who have significant developmental delays and
children without disabilities. (Pl.’s 56.1 ¶ 3.) NYSED has also
authorized SLCD to serve school-age children in grades Kindergarten
through Third (K-3) who are severely speech and language impaired,
and who may also have additional handicapping conditions. (Id. ¶
4.) In addition, through several waivers, NYSED has authorized
SLCD to continue servicing currently enrolled students up to and
including 9th grade. (Id. ¶¶ 24-26; Stipulation dated 6/26/2006.)
SLCD is permitted to service these students if there is no
appropriate alternative recommendation made by a Committee on
Special Education (“CSE”). The CSE is responsible for evaluating
2 Of course, families could pay for the school without any state funding.
4
children with disabilities and recommending a placement for them
based upon their individual needs. (Pls.’ 56.1 ¶ 8.) The CSEs
develop a plan, called an Individualized Education Program (“IEP”),
for each child; the IEP sets forth the specific special education
program and services to be provided for a learning disabled
student.
Notwithstanding the foregoing waivers (which allow SLCD
relief from any cap), the current enrollment caps at SLCD are as
follows: 66 full-time school-age; 24 full-time pre-school; and 81
part-time pre-school. (Pls.’ 56.1 ¶ 9.)
The 1996 “Moratorium”
In July 1996, the New York State Legislature imposed a 7-
year moratorium on the approval of any new or expanded programs for
pre-school students with disabilities. (Pls.’ 56.1 ¶.) The
legislature created an exception where school districts “document
a critical need for a new or expanded program in a setting which
includes only preschool children with disabilities, to meet the
projected demand for services for preschool children in the least
restrictive environment.” N.Y. Educ. Law § 44109(a)(iii). Schools
seeking to rely upon the exception are required to submit such
documentation to the attention of NYSED. (Pls.’ 56.1 ¶ 14.)
Approximately four months later, Lawrence Gloeckler, the
Deputy Commissioner for Vocational and Educational Services for
Individuals with Disabilities (“Gloeckler”), issued a NYSED
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“department memoranda” entitled “Procedures for Program Application
and Expansion of In-State Private Schools and Center-Based
Preschool Programs for Students with Disabilities.” (Sheffel Aff.
Ex. 5.) The memoranda provides, in relevant part:
Applications for approval of private school programs or center-based preschool programs or applications from an approved private school or center-based preschool program seeking to expand its existing program for students with disabilities will be considered only when there is a demonstrated need for the expansion of such services in that particular region of the State. Private day schools or center-based preschool programs should submit a letter of intent with supporting documentation to the appropriate regional special education office of the Office of Vocational and Educational Services for Individuals with Disabilities . . . . Private residential schools should submit such letter and documentation to the Residential Placement System (RPS) Unit . . . . This letter and documentation must include a description of the program the agency intends to open or expand and all required information noted below. Applications which do not address each of these factors will not be considered for approval.
Id. (emphasis added).
The aim of the procedures is apparent, and is effectively
conceded by NYSED. NYSED believes that too many children are being
educated in overly restrictive environments, i.e., facilities such
as SLCD that serve primarily or exclusively students with
disabilities. (See Id. at 2; Defs.’ Mem. of Law in Opp. to Pls.’
Mot. for Partial S.J.) When explaining the type of written
documentation that an applicant for expansion must obtain from the
school district, Gloeckler states that the documentation should
include a “projected number of students . . . whose educational
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needs would be appropriately met by the program and for whom
appropriate less restrictive public facilities or private schools
are not available. This number should include only students for
whom there is documentation of efforts to place the students in
less restrictive public facilities or consideration of such
placements. . . .” (Id. at 3 (emphasis added).)
In January 2000, SLCD submitted an application for
expansion to NYSED. SLCD sought to expand the existing program to
include grades 4-6. (Pls.’ 56.1 ¶ 18.) The NYSED declined to
review the application because SLCD did not submit documentation
demonstrating a “local need” for expansion. (Id. ¶ 19.) In March
2002, SLCD submitted another application to NYSED. It is worth
noting that at this point, SLCD had already commenced the instant
action against the above-captioned Defendants. The March 2002
application sought authorization to expand the program to include
grades 6-9. (Id. ¶ 20.) NYSED did not respond to the March 2002
letter. (Id. ¶ 21.) In May 2002, SLCD sent NYSED a letter
requesting an expansion to accommodate students that had been
placed on the New York City waiting list because SLCD had not been
approved for expansion to serve these children (Id. ¶ 22.) SLCD
was advised to direct the correspondence to NYSED’s counsel.
Impact On The Students
NYSED has taken several steps to enforce the enrollment
caps at SLCD. In November 2000, NYSED informed the New York City
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Board of Education (“NYCBOE”) and all local school districts on
Long Island that it would not reimburse them for any children that
they place at SLCD with an admission date from November 28, 2000
forward until SLCD reduced its enrollment to the enrollment cap
level. (Id. ¶ 27.) In March 2001, NYSED continued to inform
school districts that they would not be reimbursed for any
recommendations that CSE’s and CPSE’s (Committees on Preschool
Education) made to place new children at SLCD for the 2001-02
school year. (Pls.’ 56.1 ¶ 28.) In October 2001, the NYCBOE
informed CSE chairpersons that the SLCD students that had been
permitted to remain at SLCD in grades 4 and 5 had to be recommended
for new placements. (Id. ¶ 29.)
In September 2002, NYSED required school districts to
secure documentation that there were no other programs in its
district for a disabled child before approving a waiver to attend
SLCD. (Id. ¶ 30.) In 2004, NYSED instructed the Central Based
Support Team (“CBST”) - the New York City agency that evaluates and
approves IEPs - that CSE’s may not recommend SLCD for children ages
4-7 for the 2004-05 school year. (Id. ¶ 31.) As a result of the
directive, SLCD was expected to lose 43 previously enrolled
children. However, as a result of waivers, they did not lose the
students. (Id. ¶ 34.)
Over the last six years NYSED has agreed to several
waivers to SLCD’s enrollment cap. The waivers have allowed
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children to remain at SLCD. In August 2000, NYSED granted SLCD
conditional programmatic approval to extend its capacity to 72
students and to serve currently enrolled students with disabilities
in grade 4 for the 2000-2001 school year. (Id. ¶ 24.) These were
students who were “aging up” or “aging out” of SLCD’s prior grade
approval (K-3) from NYSED. Similar waivers were executed in: 2001,
to allow service for students in grades 4-5; 2002, to allow service
for students in grades 4-6; 2003, to allow service for students in
grades 4-7; 2004, to allow service for students in grades 4-8;3
2005, to allow service for students in grades 4-8; and 2006, to
allow service for students in grades 4-9.4
In addition, it is not disputed that NYSED allows for
schools to request a variance in order to educate specific disabled
children. (Pls.’ 56.1 Counter-Statement ¶ 18.) According to an
NYSED representative, “there are primarily two reasons to request
child specific variance. One has to do with the very unique needs
of a specific child and the lack of an alternative, appropriate
program. The other is related to a child that the local school
3 On July 12, 2004, this Court granted Plaintiffs’ request for temporary injunctive relief, permitting SLCD to be considered an appropriate placement for certain “aging up” students for the 2004-05 school year. The Parties then resolved all issues, avoiding the need for any preliminary injunction hearing. 4 The Parties appeared before this Court on June 1, 2006 concerning Plaintiffs’ application for temporary injunctive relief. Similar to the July 2004 request, the issue was resolved by the Parties, resulting in the 2006 waiver.
9
district has determined is appropriate for retention in a specific
grade.” Requests for successive variances was described by the
NYSED representatives as “highly unusual.” (Sheffel Reply Aff. Ex.
58 at 2.)
The Lawsuit
Plaintiffs commenced this action in January 2002. They
claim that the enrollment caps, November 1996 “moratorium,” and
actions taken by NYSED to enforce existing enrollment caps violate
their rights guaranteed by the IDEA. Aside from disputing the
merits of Plaintiffs’ claims, Defendants argue that the Court lacks
jurisdiction because Plaintiffs have not sufficiently exhausted
their claims before pursuing the instant suit.
STANDARD OF REVIEW
“Summary judgment is appropriate where there is no
genuine dispute concerning any material facts, and where the moving
party is entitled to judgment as a matter of law.” Harvis Trien &
Beck, P.C. v. Fed. Home Loan Mortgage Corp (In re Blackwood
Assocs., L.P.), 153 F.3d 61, 67 (2d Cir. 1998)(citing Fed. R. Civ.
P. 56(c)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322,
106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 91 L. Ed. 2d 202
(1986).
“The burden of showing the absence of any genuine dispute
as to a material fact rests on the party seeking summary
10
judgment."” McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir.
1997); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90
S. Ct. 1598, 26 L. Ed. 2d 142 (1970). “In assessing the record to
determine whether there is a genuine issue to be tried as to any
material fact, the court is required to resolve all ambiguities and
draw all permissible factual inferences in favor of the party
against whom summary judgment is sought.” McLee, 109 F.3d at 134.
DISCUSSION
“Congress enacted the IDEA to promote the education of
children with disabilities, ‘to ensure that all children with
disabilities have available to them a free appropriate public
education that emphasizes special education and related services
designed to meet their unique needs and . . . to ensure that the
rights of children with disabilities and parents of such children
are protected.’” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d
356, 363 (2d Cir. 2006) (quoting 20 U.S.C. § 1400(d)(1)). “The
free appropriate public education mandated by federal law must
include special education and related services tailored to meet the
unique needs of a particular child, and be reasonably calculated to
enable the child to receive educational benefits.” Walczak v.
Florida Union Free School Dist., 142 F.3d 119, 122 (2d Cir. 1998)
(internal quotations, citations omitted).
“Because the law expresses a strong preference for
children with disabilities to be educated, ‘to the maximum extent
11
appropriate,’ together with their non-disabled peers, special
education and related services must be provided in the least
restrictive setting consistent with a child's needs.” Id. (quoting
20 U.S.C. § 1412(5)). “Only ‘when the nature or severity’ of a
child's disability is such ‘that education in regular classes with
the use of supplementary aids and services cannot be achieved
satisfactorily’ should a child be segregated. Id. In providing a
free appropriate education (“FAPE”), local school districts must
establish an IEP for each child with a disability. 20 U.S.C.
§ 1414(b),(d).
A state is entitled to receive federal funding pursuant to the IDEA if it has in effect policies and procedures designed to ensure, among other things that children with disabilities are identified and evaluated, that a free, appropriate public education is available to all children with disabilities, that the state is working towards providing full educational opportunity to all children with disabilities, and that children with disabilities and their parents are afforded the procedural safeguards provided under the Act.
Taylor v. Vermont Dep’t of Educ., 313 F.3d 768, 776 (2d Cir. 2002).
The policies and procedures adhered to by New York are set forth in
large part in New York Education Law § 4402, which provides for the
establishment of CSEs, and the development of IEPs. See N.Y. Educ.
Law § 4402(1)(b). Apart from the legislation set forth in New
York’s Education Law, NYSED possesses the authority to enact
policies to ensure compliance with the IDEA, provided such policies
are consistent with its objectives and guidelines.
By accepting federal funding, New York enters into a
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“partnership” with federal and local governments and agencies to
ensure that the goals of the IDEA are met. “The Act does not usurp
the state’s traditional role in setting educational policy,
however. . . . It seems plain that [] Congress drew the procedural
and substantive contours of education for disabled children, but
left the shading and tinting of the details largely to the states.
States are responsible for filling in the numerous interstices
within the federal Act through their own statutes and regulations.”
Taylor v. Vermont Dept. of Educ., 313 F.3d 768, 777 (2d Cir. 2002)
(internal quotations, citations omitted).
This case is somewhat different from the traditional case
where a student’s family challenges a state’s specific placement
determination. However, the ultimate two-prong inquiry remains the
same: (1) whether the state has complied with the IDEA’s procedural
requirements; and (2) whether the state provides a program that is
“reasonably calculated to enable the child to receive educational
benefits.” Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381
(2d Cir. 2003) (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 206-
07, 102 S. Ct. 3034, 73 L. Ed. 2d 690 (1982)). This Circuit has
instructed that the requirement that a child “receive educational
benefits” does not carry with it a mandate that the state “maximize
the potential of handicapped children.” Walczak, 142 F.3d at 130.
The IDEA requires that districts give students a “basic floor of
opportunity . . . consisting of access to specialized institutions
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and related services which are designed to provide educational
benefit.” Rowley, 458 U.S. at 201. While all parents
understandably want the very best for their child, that is not
always a feasible fiscal burden to impose upon the state. See
Antonaccio v. Bd. of Educ. of Arlington Cent. Sch. Dist., 281 F.
Supp. 2d 710, 725-26 (S.D.N.Y. 2003).
I. Exhaustion
Defendants argue that this Court lacks subject matter
jurisdiction over the IDEA claims because Plaintiffs have not
exhausted their administrative remedies. Under New York’s
framework of administrative review, parents of disabled students
who wish to challenge a CSE’s placement of their child for the
upcoming school year may appeal the determination to an Impartial
Hearing Officer (“IHO”). The IHO’s determination may be appealed
to a State Review Officer. If ultimately unsuccessful at the state
level, parents may seek review in federal court. See 20 U.S.C.
§ 1415. The Second Circuit has recognized that, ordinarily, a
plaintiff must seek administrative review before proceeding with a
federal action. See Hope v. Cortines, 69 F.3d 687 (2d Cir. 1995);
Garro v. State of Conn., 23 F.3d 734, 737 (2d Cir. 1994); Heldman
v. Sobol, 962 F.2d 148, 158 (2d Cir. 1992) (“Normally, actions
brought under IDEA must adhere to the exhaustion requirement”).
There are, however, circumstances where exhaustion of
administrative remedies is unnecessary. This occurs in three
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situations where: “(1) it would be futile to use the due process
procedures; (2) an agency has adopted a policy or pursued a
practice of general applicability that is contrary to the law; (3)
it is improbable that adequate relief can be obtained by pursuing
administrative remedies.” Mrs. W. v. Tirozzi, 832 F.2d 748, 756
(2d Cir. 1987) (internal quotations, citations omitted). “The
futility exception is particularly relevant in actions . . . that
allege systemic violations of the procedural rights accorded by
IDEA.” Heldman, 962 F.2d at 158-59.
The Court finds that this case fits comfortably within at
least two of the exceptions. To be sure, Plaintiffs are
challenging a systemic violation of their procedural rights
guaranteed by the IDEA. See id. They claim that NYSED’s
“moratorium” and caps are part of a policy that results in far-
reaching interference with disabled students’ ability to obtain a
FAPE. In other words, they are contesting the “framework and
procedures for assessing and placing students in appropriate
educational programs,” thus rendering exhaustion futile. J.S. v.
Attica Cent. Schs., 386 F.3d 107, 114 (2d Cir. 2004). Moreover, if
each student brought separate complaints, “there would have been a
high probability of inconsistent results.” Id. This factor also
counsels against exhaustion. Accordingly, the Court DENIES
Defendants’ motion to the extent it relies upon Plaintiffs’ failure
to exhaust remedies.
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II. The Enrollment Limitations & The Moratorium
While the Parties argue back and forth concerning the
appropriate label, the results of NYSED’s enrollment limits and the
moratorium are not seriously disputed. If NYSED enforced the
limits (rather than execute waivers over the past several years),
SLCD would not be a viable placement for students above third
grade. Plaintiffs argue that the imposition of caps runs afoul of
the IDEA for several reasons.
A. Procedural Arguments
Plaintiffs assert that the enrollment cap deprives
parents of meaningful participation in their child’s placement
decision in violation of § 1414(d)(1)(B) of the IDEA. See 20
U.S.C. § 1414(d)(1)(B) (describing the composition of “the
Individualized education program team” as including “the parents of
a child with a disability”). They contend that NYSED is violating
the procedures of the IDEA “by eliminating available placement
options and by directing CSEs and CPSEs not to place children at
SLCD. . . . [O]nce a school like SLCD reaches its enrollment cap,
it is off limits. It does not matter what a parent says to
demonstrate that SLCD is the appropriate placement for her child.”
(Pls.’ Mem. of Law in Support of Mot. for Partial S.J. at 11.)
Plaintiffs argue that the Sixth Circuit’s decision in
Deal v. Hamilton County Board of Education, 392 F.3d 840 (6th Cir.
2004), is on point. In Deal, the parents of an autistic child
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challenged the school system’s denial of funding for an at-home,
one-on-one applied behavior analysis (“ABA”) program for their
child. Id. at 845-46. One of the key issues underlying the
parents’ appeal was whether the school system had a predetermined
policy of refusing placement in any ABA program. The Deal Court
found that the school system’s policy violated the IDEA:
The evidence reveals that the School System, and its representatives, had pre-decided not to offer Zachary intensive ABA services regardless of any evidence concerning Zachary's individual needs and the effectiveness of his private program. This predetermination amounted to a procedural violation of the IDEA. Because it effectively deprived Zachary's parents of meaningful participation in the IEP process, the predetermination caused substantive harm and therefore deprived Zachary of a FAPE.
Id. at 857.
If there were some evidence indicating that SLCD was the
only place where the students joined in this case could obtain a
FAPE, then the Court would agree that Deal might be controlling.
The IDEA requires that a parent be meaningfully involved in the
development of the IEP for their child; the objective of any IEP is
to ensure that the child receives a FAPE. In Deal, the issue was
whether the parents would be capable of obtaining a particular type
of service that was arguably necessary to address their child’s
needs. Because the school system had an unwritten policy
foreclosing any request for such schooling, the court found that
the parents were deprived of meaningful participation in the
development of the IEP. Plaintiffs in this case do not argue that,
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absent attending SLCD, they would be unable to obtain a FAPE for
their child. (Pls.’ Mem. of Law at 11 (“This predetermination -
the exclusion of SLCD as a placement option - is not reasonably
calculated to allow a child to receive educational benefits”).)
Meaningful participation does not require deferral to parent
choice. See Walczak, 142 F.3d at 132 (“What the statute guarantees
is an ‘appropriate’ education, ‘not one that provides everything
that might be thought desirable by loving parents.’” (quoting
Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d
Cir. 1989))); Viola v. Arlington Central School Dist., 414 F. Supp.
2d 366, 384 (S.D.N.Y. 2006). Absent some showing that NYSED’s
enrollment caps result in parents being unable to obtain a FAPE for
their child, the Court will not find that parents are being
deprived of meaningful participation in the IEP development
process.
Furthermore, the enrollment caps are not unyielding.
NYSED will allow expansion of SLCD’s maximum enrollment
authorization, as well as an expansion of the authorized enrollment
at any school, upon a demonstration of regional need. SLCD’s
position is that it need not make such a showing; all that should
matter is its capacity to educate additional children. The Court
disagrees. NYSED is permitted “to exercise general supervisory
responsibilities to ensure proper administration of the IDEA.”
A.A. v. Bd. of Educ., Cen. Islip Union Free Sch. Dist., 255 F.
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Supp. 2d 119, 124 (E.D.N.Y. 2003). Setting enrollment caps at
schools in the furtherance of the IDEA’s objectives is within the
ambit of its supervisory power. See Rowley, 458 U.S. at 207 (“In
assuring that the requirements of the Act have been met, courts
must be careful to avoid imposing their view of preferable
educational methods upon the States.”); Taylor, 313 F.3d at 776.
Here, NYSED has made a policy determination consistent with the
IDEA’s “least restrictive environment” objectives. However, “CSEs
are [still] free to create an IEP for a child that delineates the
services that will provide appropriate education in the least
restrictive environment. If an appropriate program exists, the
child’s services should be provided through it. If no appropriate
program exists, and therefore the child’s educational needs would
go unserved as a result, then regional need may exist.” Where
regional need exists expansion is available under NYSED’s policy.
Moreover, child specific variances are available for particularized
circumstances where continued education at SLCD is necessary to
ensure that a child receives a FAPE.
NYSED has adopted a policy that is not inconsistent with
the IDEA’s objectives. Accordingly, the Court finds that NYSED’s
enrollment limitations do not violate the procedural requirements
of the IDEA.
B. Substantive Arguments
Plaintiffs proffer several reasons why NYSED’s enrollment
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limitations operate to deprive disabled students of a FAPE. Many
of their arguments in substance mirror their procedural objections.
Plaintiffs’ chief complaint is that, but for the limitations, CSEs
would recommend SLCD for placement of disabled students. The
Plaintiff Parents insist that the absence of SLCD as an option
deprives them of their rights to a FAPE. The problem with the
argument, however, is that there is no showing, or even any
indication, that the exclusion of SLCD de facto results in
Plaintiffs not receiving a FAPE. In their Memorandum of Law in
support of the instant motion, Plaintiffs do not point to any
specific instance where a child has been placed, or would have been
placed in a program that does not give the student a FAPE.5
Plaintiffs also rely upon policy letters (“Policy
Letters”) issued by the United States Department of Education’s
Office of Special Education Programs (“OSEP”) as evidence that
NYSED’s enrollment policies substantively violate the IDEA.
(Sheffel Aff., Ex. 41.) The policy letters were issued to the
Rhode Island Department of Education (“RIDE”) concerning an
“Improvements Plan” developed by RIDE’s Office of Special Needs.
The Improvement Plan responded to areas of need identified by
5 Doubtless, this is the result of the many waivers that were executed between NYSED and SLCD throughout the course of this litigation. If there is an instance where a child is displaced from SLCD and the parent believes that such a displacement results in the child not receiving a FAPE, then the parents may challenge the CSE determination.
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RIDE’s Continuous Improvement Mentoring Process (“CIMP”). One of
the areas of potential non-compliance identified by OSEP concerned
RIDE’s aim to reduce the number of disabled students receiving
special services.
RIDE’s Improvement Plan proposed to reduce the
“percentage of students in each disability category . . . to be
equal or less than the national average.” (Id. At 4.) The Policy
Letter explained:
[W]hile it is not inconsistent with [the IDEA] to include a numerical goal to increase the percentages of children with disabilities appropriately placed in less restrictive settings, the State must continue to monitor to ensure that placement decisions for all children are made in conformity with the least restrictive environment requirements of [the IDEA] and not based upon a numerical goal. OSEP would not base a finding of noncompliance on the State’s failure to meet, but rather on a failure to comply with the procedures specified in [the IDEA]. A goal of increasing the percentage of children with disabilities appropriately served in less restrictive settings can be a way for the state to measure whether it is improving services for children with disabilities, however the State must continue to monitor to ensure that placement decisions for all children are made in conformance with the [least restrictive environment] requirements of [the IDEA] and not based upon a numerical goal. Therefore, this section of the Improvement Plan must be revised to describe how Rhode Island will achieve its goal . . . while continuing to make the full continuum of alternative placements (instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions) available and ensuring that each individual child is placed in a setting that meets his or her identified needs consistent with [the IDEA’s] requirements.
Id.
The key point undergirding the Policy Letter was that an
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individual student’s FAPE should not be sacrificed in the name of
a numerical goal. However, there is no evidence of that occurring
here. Plaintiffs do not argue that NYSED has adopted a policy that
caps the number of students authorized for particularized types of
special education. Nor do they set forth evidence establishing
that SLCD is the only appropriate venue for addressing their
specific needs. NYSED has placed an enrollment limitation at SLCD;
the enrollment capacity may be expanded upon a showing of regional
need.6 Quite simply, there is insufficient evidence for this Court
to determine that individual students’ needs are not being met
because of the enrollment limitation. Accordingly, the Policy
Letters provide little authority for the proposition that NYSED’s
policies violate the IDEA.
Furthermore, because the Court finds nothing improper
with NYSED’s enrollment limitations structure, the Court finds
nothing impermissible about NYSED enforcing its limitations by
advising CBST’s that NYSED is not an acceptable placement for
students above grade 3.7
6 In their motion, Plaintiffs do not suggest that there is something defective about the “regional need” requirement such that it would be an inappropriate criteria to adequately provide for individual students’ education needs. Thus, the Court does not pass on that issue. 7 However, Plaintiffs point out that NYSED has gone further than this by directing school districts that they will not be reimbursed for any students sent to SLCD. With respect to students appropriately placed at SLCD within the school’s permissible enrollment limits, such actions are clearly
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III. The Demonstration Of Regional Need
Plaintiffs also maintain that they can demonstrate
“regional need.” (Pls.’ Mem. of Law in Support of Mot. for Partial
S.J. at 21.) It appears that Plaintiffs may, indeed, have a
legitimate argument in this regard. NYCBOE has encouraged SLCD’s
request for expansion and the Nassau Board of Cooperative Education
Services has recognized an increased need for special education
services on Long Island. It is unclear, however, whether SLCD made
any attempt to demonstrate regional need to NYSED. Plaintiffs’
position on this motion is that the enrollment caps are per se
violative of the IDEA, and they need not make any effort to
demonstrate regional need to NYSED. They do not style this as a
challenge to NYSED’s proper or improper assessment of need, nor do
they explain in any meaningful way why regional need is not a
proper consideration in addressing the education needs of students
in New York state. Accordingly, the Court is not prepared to
address the issue.
CONCLUSION
The Court wholeheartedly endorses SLCD’s efforts to
provide services to students with special needs. Moreover, the
Court empathizes with the parents of the many children who are
aging out of the school. However, this Court’s duty in reviewing
the actions of a state agency is limited. On the record before
impermissible.
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this Court, NYSED has not adopted a policy that is procedurally or
substantively inconsistent with the IDEA. Accordingly, Plaintiffs’
(including intervenor Plaintiffs) motion for partial summary
judgment with respect to their IDEA claims is DENIED; Defendants’
motion for summary judgment with respect to Plaintiffs’ IDEA claims
on the grounds of exhaustion is DENIED. Defendants’ motion for
summary judgment with respect to Plaintiffs’ other causes of action
is DENIED, without prejudice, for failure to comply with this
Court’s rules.8
SO ORDERED
/s/ JOANNA SEYBERT Joanna Seybert, U.S.D.J. Dated: Central Islip, New York September 26, 2006
8 Defendants move to dismiss the Second Amended Complaint in its entirety. However, the averments contained in its Rule 56.1 Statement are only germane to Plaintiffs’ IDEA claims. “The burden of showing the absence of any genuine dispute as to a material fact rests on the party seeking summary judgment." McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970). Defendants have handicapped the Court by not providing a sufficient predicate for the Court to address the merits of their motion.
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