UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ----------------------------------x CHRISTIAN KILLORAN, on behalf of his son, A.K., CHRISTIAN KILLORAN, and TERRIE KILLORAN,
Plaintiffs, MEMORANDUM & ORDER 19-CV-3298(JS)(SIL) -against-
WESTHAMPTON BEACH SCHOOL DISTRICT, MICHAEL RADDAY as Superintendent, SUZANNE M. MENSCH, JAMES HULME, JOYCE L. DONNESON, GEORGE R. KAST, JR., and HALSEY C. STEVENS, as Board of Education Members,
Defendants. ----------------------------------x For Plaintiffs: Christian Killoran, Esq., pro se Terrie Killoran, pro se 132-13 Main Street Westhampton, New York 11978
For Defendants: Anne C. Leahey, Esq. Anne Leahey Law, LLC 17 Dumplin Hill Lane Huntington, New York 11743
Scott J. Kreppein, Esq. Jaclyn L. DarConte, Esq. DEVITT SPELLMAN BARRETT, LLP 50 Route 111 Smithtown, New York 11787
SEYBERT, District Judge:
Pro se plaintiffs Christian Killoran (“Mr. K”) and
Terrie Killoran (“Mrs. K”) (together, the “Plaintiffs”) commenced
this action on behalf of their son, A.K., against defendants
Westhampton Beach School District, (“Westhampton” or the
1
“District”), Michael Radday, (“the Superintendent”), Suzanne M.
Mensch, James Hulme, Halsey C. Stevens, Joyce L. Donneson and
George R. Kast, Jr., (together, the “School Board,” and
collectively with Westhampton and the Superintendent,
“Defendants”). Currently pending before the Court is Plaintiffs’
motion for summary judgment (hereafter, the “Motion”) (see ECF No.
39 (including Plaintiffs’ Support Memo; see also Reply, ECF No.
42) seeking review of the April 17, 2019 administrative decision
of state review officer (“SRO”) Sarah L. Harrington (“SRO
Harrington”) upholding the February 20, 2019 determination of
independent hearing officer (“IHO”) Leah L. Murphy (“IHO Murphy”)
that the May 2018 individualized education program (“IEP”) the
District developed for A.K. was sufficient to provide A.K. with a
free and appropriate education (“FAPE”) in the least restrictive
environment (“LRE”) pursuant to the Individuals with Disabilities
Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. For the following
reasons, Plaintiffs’ Motion is DENIED.
BACKGROUND
I. Statutory Framework for IDEA Cases
The purpose of the IDEA is “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 prepare them for employment
and independent living.” 20 U.S.C. § 1400(d)(1)(A). Under the
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IDEA, states receiving federal funds are required to comply with
extensive procedural requirements to ensure that all children with
disabilities receive a FAPE. See Bd. of Educ. v. Rowley, 458 U.S.
176, 180-81, (1982). “The particular educational needs of a
disabled child and the services required to meet those needs must
be set forth at least annually in a written IEP.” Walczak v. Fla.
Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998) (citation
omitted).
In New York, the state has assigned responsibility for
developing IEPs to local Committees on Special Education (“CSEs”).
See R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167, 175 (2d Cir. 2012)
(citing N.Y. Educ. Law § 4402(1)(b)(1)). “CSEs are comprised of
members appointed by the local school district’s board of
education, and must include the student’s parent(s), a regular or
special education teacher, a school board representative, a parent
representative, and others.” Id. (citing N.Y. Educ. Law §
4402(1)(b)(1)(a)). “The CSE must examine the student’s level of
achievement and specific needs and determine an appropriate
educational program.” Id. (citing Gagliardo v. Arlington Cent.
Sch. Dist., 489 F.3d 105, 107-08 (2d Cir. 2007)). The IDEA sets
forth procedural and substantive requirements for IEPs, see 20
U.S.C. § 1414, but “does not itself articulate any specific level
of educational benefits that must be provided through an IEP.”
Walczak, 142 F.3d at 130.
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If a parent believes that his school district has failed
to provide his child with a FAPE due to an inadequate IEP, the
parent may file a complaint with the state educational agency and
request an impartial due process hearing before an IHO. See id.
at 123; see also N.Y. Educ. Law § 4404(1). Either party may appeal
an adverse administrative decision to the appropriate state
agency. See id.; see N.Y. Educ. Law § 4404(2). “Only after these
administrative remedies have been exhausted may an aggrieved party
appeal to a federal or state court, which may then grant
appropriate relief.” M.R. v. S. Orangetown Cent. Sch. Dist., No.
10-CV-1800, 2011 WL 6307563, at *12 (S.D.N.Y. Dec. 16, 2011)
(citing 20 U.S.C. § 1415(i)(2)(A)). “When such an action is
brought in federal district court, the court reviews the records
of all of the prior administrative hearings and must hear
additional evidence if so requested by either of the parties.”
M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 225 (2d Cir. 2012)
(citing 20 U.S.C. § 1415(i)(2)(c)).
The Second Circuit has held that where, as here,
plaintiffs seek judicial review of an SRO’s determination that an
IEP was proper, the plaintiffs bear the burden of proof. See id.
at 225 n.3 (“Because the State Review Officers in the cases at bar
concluded that the IEPs were proper, and the courts are bound to
exhibit deference to that decision, the burden of demonstrating
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that the respective Review Officers erred is properly understood
to fall on the plaintiffs.”).
II. Factual Background 1
This action is one in a series of civil rights litigation
brought by Plaintiffs against Westhampton concerning the education
of Plaintiffs’ son, A.K., who has Down Syndrome and a full-scale
IQ of 47, classifies as a student with an intellectual disability,
and was sixteen years old at the time of the subject administrative
hearing. (See Compl., ECF No. 1; Nov. 7, 2018 Hr’g Tr. (“Nov. 7
Tr.”), ECF No. 32-6, at 170; May 2018 IEP, ECF No. 32-19, at 1.)
The Court assumes familiarity with the background of this case,
which is chronicled in its various prior Orders. 2 See, e.g.,
Killoran v. Westhampton Beach UFSD, No. 19-CV-6663, 2020 WL
1 The following facts are taken from the Complaint, the parties’ submissions and the underlying administrative record (see ECF Nos. 32-1 through 32-24), and are undisputed unless otherwise noted. Unless otherwise noted, for ease of reference, the Court cites to the Electronic Case Filing System (“ECF”) pagination.
2 Plaintiffs have filed numerous administrative proceedings and multiple federal actions against the District regarding A.K.’s education. (See, e.g.: Case Nos. 15-CV-4743, 17-CV-0866, 17-CV- 3553, 18-CV-3389, 19-CV-5078, 19-CV-6663, 20-CV-0269, 20-CV-4121, 20-CV-4763, 21-CV-1281, and 21-CV-3264.) Here, the Court confines its analysis solely to the proceedings relevant to the issues presented in Plaintiffs’ Motion. Additionally, as the Court’s prior orders have noted, since Mr. K is an attorney, his pleadings are not entitled to the “special consideration which the courts customarily grant to pro se parties.” Bazadier v. McAlary, 464 F. App’x 11, 12 (2d Cir. 2012) (internal quotation marks and citation omitted).
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4740498, at *1-3 (E.D.N.Y. June 24, 2020), report and
recommendation adopted by 2020 WL 4743189 (E.D. N.Y. July 27,
2020). The instant action arises out of Defendants’ development
of A.K.’s IEP and placement for the 2018-2019 school year. (See
Compl.)
A. The May 2018 IEP
On March 5, April 9, and May 22, 2018, the District’s
CSE convened to review A.K.’s progress and to develop an IEP for
the 2018-2019 academic year. (See IHO 2019 Decision, ECF No. 32-
2, at 24. 3) CSE members included: Dr. Angela Austin (“Dr. Austin”),
CSE Chairperson and Director of Pupil Personnel Services; Theresa
Gannon (hereafter, the “special education teacher”); Joanne
Williams (hereafter, the “District special education teacher”);
Margaret Brogan (hereafter, the “occupational therapist”); Eileen
Catala (hereafter, the “physical therapist”); Connor Davis
(hereafter, the “adaptive physical education teacher”); Elizabeth
Martrano (hereafter, the “high school psychologist”); Eileen
Tyznar (hereafter, the “education consultant”); Mrs. K., A.K.’s
mother; and, Mr. K., A.K.’s father. (See Mar. 5, 2018 CSE Minutes
(“March 2018 CSE”), ECF No. 32-15, at 2.) In developing A.K.’s
IEP, the CSE reviewed documents, including: A.K.’s prior IEP;
3 In his February 20, 2019 decision, IHO Murphy included a comprehensive review of the Parents’ multiple prior challenges to A.K.’s IEPs. (See IHO 2019 Decision, Procedural Background, at 7- 20.) 6
progress reports and annual reviews from A.K.’s occupational
therapist (“OT”) and physical therapist (“PT”); a 2016
psychological evaluation; a 2016 speech and language evaluation
report; a 2016 psychoeducational evaluation; and a 2014 assistive
technology evaluation. (See id. at 1.) Additionally, A.K.’s
service providers, including his OT, PT, special education
teacher, and adaptive physical education teacher reported on
A.K.’s functioning. (See id.) A.K.’s present levels of
performance and goals were discussed at the CSE meetings with
significant input from his Parents and special education teacher.
(Id.)
The March 2018 CSE 4 discussed placement options,
including pushing A.K. into general education classes and the
extent to which the curriculum would need to be modified to meet
his needs, and the Parents’ preferred placement, i.e., creating a
“hybrid program.” (See March 2018 CSE at 55-69.) Dr. Austin
opined that the Parents’ proposed “hybrid program” would be
socially and emotionally isolating, while A.K.’s special education
4 The March 2018 CSE meeting was held upon SRO Krolak’s directive, instructing the District to complete the placement process for A.K. for the 2017-2018 school year. (See June 28, 2018 IHO Murphy Order, ECF No. 32-14, at 12.) Because the District did not have a high school level “alternatively assessed program” that would address A.K.’s functional needs, the CSE recommended A.K.’s placement for the 2017-2018 school year be in a 12:1+1 class located in the Middle Country School District. (See id. at 16.) A 12:1+1 classroom is a classroom with twelve students, one special education teacher, and one teacher’s aide. 7
teacher disagreed, stating her belief that A.K. would thrive from
seeing his brother in the hallway or seeing some of the children
with whom had had grown up. (Id. at 27-30, 188.) As to placing
A.K. in a general education class, the District’s special education
teacher pointed out that A.K. was reading at a first-grade level
and that “[t]here is no way to really adapt a high school Common
Core curriculum that is Regents track to the first-grade level.”
(Id. at 190.) She stated that it would be “educationally unsound”
to modify the regular education curriculum to A.K.’s level. (Id.)
The high school psychologist agreed with the District’s concerns
of placing A.K. into a Regents track class at the high school.
(See id. at 199.)
Jennifer Harrison (“Ms. Harrison”), Director of Pupil
Personnel Services at the Middle Country School District,
discussed the alternate assessment program at the Middle Country
School District, which the Parents had visited. (See id. at 85.)
She described the program at one of that district’s high schools
as a secondary “life skills” program with a current enrollment of
approximately 45 students. (Id.) The program consisted of a nine-
period day, in a high school building with approximately 1,600
students. (Id. at 86.) Ms. Harrison explained that the students
in the “life skills” program see multiple teachers during the day
and have access to mainstream electives where appropriate. (Id.)
Program students participate in a work-study program for three
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periods a day within the community, and eat in the cafeteria with
their typical peers. (See id.) She explained that the program
instruction is not based on the New York State Common Core
curriculum but, rather, is IEP-based and includes functional
academics, reading, writing, mathematics, and mainstream
electives. (See id. at 93.) She stated that, having observed
A.K., A.K. appeared to be very similar to some of the students
currently in the program. (See id. at 94.)
The CSE reconvened on April 9, 2018 to review A.K.’s
2017-18 draft IEP for the present levels of performance and goals.
(April 9, 2018 CSE Minutes (“April 2018 CSE”), ECF No. 32-18, at
9.) Mr. K stated that Plaintiffs had never agreed to the IEP, and
that he believed that the goals were not aligned with the general
education curriculum. (See id. at 11-13.) To that end, Mr. K
handed out guidance documents from the U.S. Department of Education
and the N.Y.S. Department of Education, which Dr. Austin agreed to
review. (See id. at 14-20.) Mr. K also wanted to discuss whether
the general education curriculum could be modified to meet A.K.’s
academic goals. (See id.) In response, Dr. Austin pointed out
that A.K. was an ungraded student whose expectations follow the
alternate assessment, not the Regents level curriculum. (See id.
at 17-18.) Dr. Austin noted that this was the first time the
Parents, who had worked specifically on the language of the goals
at the prior CSE meeting, raised concern that the goals should be,
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not just “functional” but, aligned with the “grade-level general
education content standards.” (See id. at 34-36.) Mr. K did not
disagree that A.K. needed functional goals, but believed it was
“imperative” that A.K. be “afforded access to the general education
curriculum,” and “that the general education curriculum [be
modified] to meet [his] unique and individualized education
goals.” (Id. at 81-93.)
On May 22, 2018, the CSE reconvened for A.K.’s annual
review and to decide upon a placement for A.K. for the 2018-2019
school year. (See May 22, 2018 CSE Minutes (“May 2018 CSE”), ECF
No. 32-17.) At that time, A.K.’s services were being delivered
individually both at Westhampton Beach High School and in his home
for two hours with a special education teacher. (See id. at 4.)
The Parents’ preferred “hybrid program” was the central topic of
the meeting. (See May 2018 CSE.) Dr. Austin maintained that the
ninth-grade general education curriculum was an inappropriate
reference to meet A.K.’s needs. (See id. at 174-76.) While she
agreed that mainstreaming A.K. for lunch and electives was
appropriate, Dr. Austin maintained that A.K.’s academics should be
delivered in a small special class to which A.K.’s Parents had
previously agreed. (See id.).
Ultimately, the CSE found that A.K. remained eligible
for special education and related services as a student with an
intellectual disability and recommended a 12:1+1 special class
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placement for the 2018-2019 school year, “to focus on functional
academics and vocational skills,” adapted physical education,
related services, including speech-language therapy, OT, PT, and
parent counseling and training, and special instruction (delivered
in the home). (May 2018 IEP at 16-18). The May 2018 IEP also
included: strategies to address A.K.’s “management needs; annual
goals; supplementary aids and services, program modifications, and
accommodations; assistive technology devices or services; and
supports for school personnel on behalf of [A.K.]”. (Apr. 17,
2019 SRO Harrington Decision (“SRO 2019 Decision”), ECF No. 32-1
at 3 (citing May 2018 IEP).) A.K.’s May 2018 IEP provides that
A.K. will not participate in regular education in all academic
areas, speech, OT, PT, and adaptive PE; however, A.K. will
participate in regular education in all special areas and lunch.
(See May 2018 IEP at 19.) As to placement, the May 2018 CSE
recommended that A.K. attend an out-of-district public school,
which was the same out-of-district public school location
recommended at the March 2018 CSE meeting for A.K.’s 2017-2018
IEP. (See SRO 2019 Decision at 4; May 2018 IEP at 20.)
B. Administrative Proceedings
Unsatisfied with the CSE’s developed IEP for the 2018-
2019 academic year, on September 14, 2018, Plaintiffs filed a due
process complaint alleging that Westhampton had failed to provide
A.K. with a FAPE as required by the IDEA. (See Compl. ¶¶ 20-22;
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SRO 2019 Decision at 6). They alleged that Westhampton had failed
to: (1) “conduct a meaningful analysis regarding whether it could
employ its special education resources toward addressing the
unique and individualized needs of A.K.”; and (2) develop an IEP
that was “appropriately ambitious[.]” (Compl. ¶¶ 21-22.)
1. IHO Decision
Thereafter, an impartial hearing was convened, taking
place over seven non-consecutive days between November 7, 2018 and
January 8, 2019. (See IHO 2019 Decision at 1.) On February 20,
2019, IHO Murphy issued a 72-page detailed decision in favor of
Westhampton finding that the District had offered A.K. a FAPE in
the LRE for the 2018-2019 school year, and dismissed Plaintiffs’
claims. 5 (See id. at 50-76.) The IHO 2019 Decision upheld: (1)
the May 2018 IEP, which recommended that A.K. be placed in a
special class with a student-teacher ratio of 12:1+1 and with a
focus on functional academics and vocational skills (also
described as a “life skills” program) (see id. at 5, 50-72); and
5 Prior to filing their September 2018 due process complaint, Plaintiffs had filed two due process complaints -- one in March 2018 and another in June 2018 -- alleging that the District had failed to provide A.K. with a FAPE for the 2017-2018 and 2018-2019 school years. (See SRO 2019 Decision at 3 n.2, 4.) With the parties’ agreement, IHO Murphy, consolidated the September 2018 due process complaint with a related remanded matter from Plaintiffs’ March and June 2018 due process complaints. (See IHO 2019 Decision at 4 n.1.) The central issue of the consolidated matter was whether the District failed to offer A.K. a FAPE for the 2018-2019 school year. (See SRO 2019 Decision at 7.)
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(2) the placement of A.K. in an out-of-district location that had
the “life skills” program, since Westhampton did not have that
recommended program (see id. at 57).
Elucidating her decision, IHO Murphy referred to
numerous prior administrative decisions finding that Westhampton
was not legally mandated to educate A.K. in the District or to
create a program within the District, if his needs could not be
met with the use of supplementary aids and services. (See id. at
51.) IHO Murphy highlighted that, for the prior three years, the
Parents had not disputed A.K.’s needs or the severity of his
disability justifying his removal from general education. (See
id. at 52.) Yet, now and solely to support their position that
A.K. be educated within the District, the Parents were challenging
A.K.’s removal from the general education environment. 6 (See id.)
IHO Murphy found the Parents’ challenge to be an “unavailing
attempt to relitigate the same issue under a new legal theory.”
(Id.) She explained: (1) the decision that A.K. was a student
with a severe disability, as defined in the Commissioner’s
Regulations, was made “long before the 2018/2019 school year” (id.
at 61); (2) the Parents have not previously challenged that
6 The IHO noted the “intense animosity” between the parties as demonstrated by Mr. K threatening to petition the Department of Education to request the removal of Dr. Austin from her job for her failure to create the Parents’ requested “hybrid program.” (IHO 2019 Decision at 46.) 13
decision, nor had they included this contention in their due
process complaint (id.); and (3) thus, “[t]he inquiry here is the
same as in every other request for due process -- a procedural and
substantive review of the student’s IEP and whether the District
has complied with the requirements of the IDEA” (id. at 52). In
sum, IHO Murphy rejected the Parents’ request that the District
implement the proposed “hybrid program,” and concluded that “the
District . . . sustained its burden to prove[] that A.K. was
offered a [FAPE] in the least restrictive environment to meet his
needs” for the 2018-2019 school year. (Id. at 23, 50.)
2. SRO Decision
Plaintiffs administratively appealed the IHO 2019
Decision to the N.Y.S. Education Department’s Office of State
Review, asserting that the IHO erred when she found that the
District offered A.K. a FAPE for the 2018-2019 school year. (See
Compl. ¶ 31.) On April 17, 2019, following a thorough examination
of the record and of the IHO 2019 Decision, SRO Harrington
dismissed with prejudice Plaintiffs’ appeal because: (1)
Plaintiffs “fail[ed] to comply with the practice regulations
governing appeals to the Office of State Review[ ]”; and (2) IHO
Murphy’s decision was supported by the evidence. (SRO 2019
Decision at 27-32, 50; Compl. ¶ 34.)
More specifically, the Plaintiffs’ appeal was dismissed
upon procedural grounds due to Plaintiffs’ lack of compliance with
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practice requirements in the form and content of their request for
review. (See SRO 2019 Decision at 31 (noting the Parents had been
cautioned about their continued failure to comply with practice
regulations in their four prior appeals).) The SRO also explained
that the Parents’ decision to “reframe some of the issues presented
on appeal in the request for review makes it difficult -- if not
impossible at times -- to discern the IHO’s specific ‘findings,
conclusions, and orders to which exceptions are taken’ . . . .”
(Id. at 29 (“Perhaps even more egregious, however, is the parent’s
failure in the request for review . . . to ‘clearly specify the
reasons for challenging the [IHO’s] decision.’ . . . Instead, the
parent points to the district’s alleged failures or errors as a
basis for the appeal.” (citations omitted; brackets in
original))); see also id. (further noting the Parents’ complete
failure to provide citations to the record on appeal and identify
the relevant page numbers in the hearing decision, transcript, and
exhibits).) Nonetheless, the SRO evaluated the merits of
Plaintiffs’ appeal.
In assessing the merits of the Parents’ arguments, the
SRO agreed with the IHO’s conclusion that the evidence in the
hearing record demonstrated that A.K.’s May 2018 IEP provided him
with a FAPE. SRO Harrington examined the issues as stated in
Plaintiffs’ Request for Review, i.e.:
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whether the [D]istrict denied the student a FAPE by failing to consider the student’s alternate assessment testing results in developing the present levels of performance, by failing to provide the student with access to the general education curriculum, by failing to align the student’s annual goals with grade-level learning standards, and by recommending a 12:1+1 special class placement life skills program located within an out-of- district public school as the student’s [LRE].
(Id. at 32 (citing Request for Review).) Considering these issues
in light of the record evidence, the SRO found that: (1) the result
of the three successive CSE meetings, and the discussions held
therein, were sufficient to support the May 2018 CSE decision
recommending an out-of-district public school placement for
implementing A.K.’s IEP, which was appropriate; and (2) the
District was not required to create a program to meet its LRE
obligations. (See id. at 48.) Accordingly, finding no reason to
disturb the IHO’s conclusion that the 12:1+1 special class
placement in a “life skills” program located in an out-of-district
public school offered A.K. a FAPE in the LRE for the 2018-19 school
year, the SRO dismissed the Parents’ appeal. (Id. at 50.)
B. The Instant Action
On June 5, 2019, Plaintiffs commenced this action
seeking review of the SRO 2019 Decision pursuant to the IDEA, which
provides that an SRO’s final decision may be challenged in federal
court. (See Compl. ¶ 35); see also 20 U.S.C. § 20 U.S.C. §
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1415(i)(2)(A). Additionally, Plaintiffs asserted claims under
Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C.
§ 12101 et seq.; Section 504 of the Rehabilitation Act of 1973
(“Rehabilitation Act”), 29 U.S.C. § 701 et seq.; and 42 U.S.C. §
1983 (“Section 1983”). (See Compl.) On September 26, 2019,
Defendants moved to dismiss Plaintiffs’ IDEA claims for lack of
subject matter jurisdiction, and Plaintiffs’ claims under the ADA,
Rehabilitation Act, and Section 1983 for lack of subject matter
jurisdiction and for failure to state a claim (hereafter, the
“Dismissal Motion”). (See Defs. Mot. to Dismiss, ECF No. 16.)
The Court adopted the Report and Recommendation of Judge Steven I.
Locke, which recommended: (1) denying Defendants’ Dismissal Motion
for lack of subject matter jurisdiction; and (2) granting
Defendants’ motion for judgment on the pleadings as to Plaintiffs’
ADA, Rehabilitation Act, and Section 1983 claims. See Killoran v.
Westhampton Beach Sch. Dist., No. 19-CV-3298, 2020 WL 4743189
(E.D.N.Y. July 27, 2020), adopting report and recommendation, 2020
WL 4740498 (June 24, 2020). This Court further stated that
“Plaintiffs’ claim for judicial review of the SRO decision pursuant
to the IDEA will proceed.” Id. On August 11, 2020, Plaintiffs
filed the instant Motion seeking to overturn the administrative
decisions, which the Defendants oppose. (See Opp’n, ECF No. 40.)
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DISCUSSION
I. Standard of Review
A district court’s role in “‘reviewing state educational
decisions under the IDEA is circumscribed.’” T.Y. & K.Y. ex rel.
T.Y. v. N.Y. City Dep’t of Educ., 584 F.3d 412, 417 (2d Cir. 2009)
(quoting Gagliardo, 489 F.3d at 112). “Although the district court
must engage in an independent review of the administrative record
and make a determination based on a ‘preponderance of the
evidence,’ Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120
(2d Cir. 1997), the Supreme Court has cautioned that such 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.’” Gagliardo, 489 F. 3d at 112-13
(quoting Rowley, 458 U.S. at 206). Indeed, the Court “‘must give
due weight to the administrative proceedings, mindful that the
judiciary generally lacks the specialized knowledge and experience
necessary to resolve persistent and difficult questions of
educational policy.’” T.Y., 584 F.3d at 417 (quoting A.C. ex rel.
M.C. v. Bd. of Educ., 553 F.3d 165, 171 (2d Cir. 2009)).
The Court also acknowledges that IDEA claims can often
be resolved upon summary judgment motion because, although the
Court is empowered to hear new evidence if necessary, the Court
has the benefit of the administrative record, and it must afford
a certain degree of deference to the administrative findings.
18
T.Y., 584 F.3d at 418. In fact, “[u]nlike with an ordinary summary
judgment motion, the existence of a disputed issue of material
fact will not necessarily defeat a motion for summary judgment in
the IDEA context.” J.S. v. Scarsdale Union Free Sch. Dist., 826
F. Supp. 2d 635, 658 (S.D.N.Y. 2011) (citations omitted).
“Instead, summary judgment in IDEA cases such as this is ‘in
substance an appeal from an administrative determination, not a
summary judgment.’” Id. (quoting Lillbask ex rel. Mauclaire v.
Conn. Dep’t of Educ., 397 F.3d 77, 83 n.3 (2d Cir. 2005)).
II. Issues for Judicial Review
In moving for summary judgment, Plaintiffs claim that
Westhampton “failed to perform any of the ‘essential dynamics’
necessary to ensure the facilitation of a FAPE that was
‘appropriately ambitious.’” (Support Memo at 2.) Specifically,
Plaintiffs argue that the District failed to: develop A.K.’s
present levels of performance from appropriate assessments; afford
A.K. with access to the general education curriculum; align A.K.’s
goals with grade-level learning standards; and place A.K. in the
LRE. (Id. at 2-11.) In opposition, Defendants contend that this
Court lacks subject matter jurisdiction over Plaintiffs’ IDEA
claim due to Plaintiffs’ failure to exhaust administrative
remedies. (Opp’n at 8-15.) Defendants further argue that even if
the Court finds it has subject matter jurisdiction over Plaintiffs’
claim, summary judgement should be denied because Plaintiffs have
19
failed to meet their burden and show by a preponderance of the
evidence that the IHO and SRO erred in dismissing Plaintiffs’
claim. (See id. at 15-29.) For the reasons set forth herein,
Plaintiffs’ Motion is DENIED.
A. Subject Matter Jurisdiction
As a threshold matter, Defendants contend that the SRO
dismissed Plaintiffs’ administrative appeal with prejudice, in
part, for failure to comply with the form requirements of 8
N.Y.C.R.R. Part 279; as a result, the instant appeal should be
dismissed for lack of subject matter jurisdiction. (See id. at 8-
15.) The Court disagrees.
It is well settled that the IDEA requires that an
aggrieved party exhaust all available administrative remedies
prior to appealing a case to federal court. See 20 U.S.C. §
1415(i)(2)(A). In New York, exhaustion requires engaging in both
an initial IHO hearing and an appeal to the SRO. See R.S. v.
Bedford Cent. Sch. Dist., 899 F. Supp. 2d 285, 288 (S.D.N.Y. 2012).
Hence, “disputes related to the education of disabled children”
are channeled “into an administrative process that c[an] apply
administrators’ expertise in the area and promptly resolve
grievances.” Cave v. East Meadow Union Free School Dist., 514
F.3d 240, 245-46 (2d Cir. 2008) (quoting Polera v. Bd. of Educ.,
288 F.3d 478, 487 (2d Cir. 2002)). A party’s failure to exhaust
administrative remedies deprives the party of the right to appeal
20
a case in federal court because it “deprives the court of subject
matter jurisdiction.” Cave, 514 F.3d at 246 (citing Polera, 288
F.3d at 483.)
Notably, the Court has already rejected Defendants’
argument that the Court lacks subject matter jurisdiction over
Plaintiffs’ claim for failure to exhaust administrative remedies.
See Killoran, 2020 WL 4740498, at *4 (recommending denying
District’s motion to dismiss Parents’ IDEA claim for lack of
subject matter jurisdiction where Plaintiffs’ administrative
appeal was dismissed in part because of their failure to comply
with practice regulations), report and recommendation adopted by
2020 WL 4743189. The Court stated, “[w]hereas courts in this
Circuit have deemed plaintiffs’ procedural errors, ‘such as
failure to timely serve or file a petition for SRO review[,]’ a
failure to exhaust administrative remedies, procedural violations
of ‘form requirements’ do not similarly constitute an exhaustion
failure.” Id. at *5 (citing J.E. v. Chappaqua Cent. Sch. Dist.,
No. 14-CV-3295, 2015 WL 4934535, at *4 (S.D.N.Y. Aug. 17, 2015)
(noting that SRO “judgments rendered solely on the basis of easily
corrected procedural errors or mere technicalities are generally
disfavored” and rejecting argument that plaintiffs had failed to
exhaust administrative remedies where the SRO had dismissed their
appeal for procedural violations of form requirements) (cleaned
up)).
21
Moreover, despite dismissing Plaintiffs’ claims based
upon procedural defects, SRO Harrington, nonetheless addressed the
merits of Plaintiffs’ claims, rendering a decision “on alternative
grounds” on the substance of those claims. (SRO 2019 Decision at
50.) “It is illogical to conclude that Plaintiffs have failed to
exhaust their administrative remedies when their claims were fully
assessed on the merits by the SRO. . . . It should be of no
consequence that [the] SRO[’]s decision to dismiss on the merits
may not have been the only line of reasoning upon which [s]he based
h[er] dismissal.” J.E., 2015 WL 4934535, at * 5. Thus, in light
of SRO Harrington’s substantive analysis and determination, her
nominal dismissal of Plaintiffs’ claims on procedural grounds does
not preclude the Court from asserting subject matter jurisdiction
over Plaintiffs’ appeal. Concluding the Plaintiffs have exhausted
all administrative remedies prior to seeking judicial relief, the
Court has subject matter jurisdiction over Plaintiffs’ claims. 7
7 The Court notes that the scope of the inquiry of the IHO, and therefore also of the SRO and this Court, is limited to matters either raised in the Plaintiffs’ due process complaint or agreed to by the defendant. See 20 U.S.C. § 1415(f)(3)(B). Further, “issues that were decided by the IHO and not appealed or cross- appealed by the party against which they were decided are binding against that party, and on the SRO and this Court, as to that party.” C.H. v. Goshen Cent. Sch. Dist., No. 11-CV-6933, 2013 WL 1285387, at *9 (S.D.N.Y. Mar. 28, 2013); 8 N.Y.C.R.R. § 200.5(j)(5)(v); see also 8 N.Y.C.R.R. § 279.8(c)(4) (“any issue not identified in a party’s request for review, answer, or answer with cross-appeal shall be deemed abandoned and will not be addressed by a State Review Officer.”) Therefore, this Court will 22
B. IDEA Claim
In deciding Plaintiffs’ IDEA claim, i.e., whether A.K.’s
IEP is adequate and whether Defendants provided a FAPE for A.K.
for the 2018-2019 school year, the Court engages in a two-part
inquiry. R.E., 694 F.3d at 189–90. First, the Court determines
“whether the state has complied with the procedures set forth in
the IDEA.” Id. (quoting Cerra v. Pawling Cent. School Dist., 427
F.3d 186, 192 (2d Cir. 2005)). Second, the Court assesses the
substantive adequacy of the IEP by determining “whether the IEP
developed through the Act’s procedures ‘[is] reasonably calculated
to enable the child to receive educational benefits.’” Cerra, 427
F.3d at 192 (quoting Rowley, 458 U.S. at 206-07). “[A] school
district fulfills its substantive obligations under the IDEA if it
provides an IEP that is likely to produce progress[ion], not
regression, and if the IEP affords the student an opportunity
greater than mere trivial advancement.” Id. at 195 (cleaned up).
Deference to the state administrative agencies, which have special
expertise in making judgments concerning student progress, “is
particularly important when assessing an IEP’s substantive
adequacy.” Id.
Here, in challenging the IHO 2019 Decision and SRO 2019
Decision, Plaintiffs argue that the District failed to: (1) derive
address only those issues that were both properly raised in Plaintiffs’ due process complaint and appealed to the SRO. 23
A.K.’s present levels of performance from appropriate assessments;
(2) afford A.K. with access to the general education curriculum;
(3) align A.K.’s goals with grade-level learning standards; and
(4) place A.K. in the least restrictive learning environment. (See
Support Memo at 8-17.) The Parents failed to designate these
alleged failures as either procedural or substantive. The Court
will consider as procedural Plaintiffs’ allegation that the
District failed to consider A.K.’s alternate assessment testing
results in developing his present levels of performance, since it
concerns the sufficiency of the procedures the CSE followed in
developing A.K.’s IEP. See P.K. ex rel. S.K. v. N.Y.C. Dep’t of
Educ. (Region 4), 819 F. Supp. 2d 90, 105 (E.D.N.Y. 2011) (“A
procedural violation generally concerns the process by which the
IEP and placement offer was developed and conveyed . . . .”),
aff’d, 526 F. App’x. 135 (2d Cir. 2013). Conversely, the Court
will consider as substantive Plaintiffs’ remaining allegations,
which concern the appropriateness of the program offered to A.K.
See id. (“[O]n the other hand a substantive violation arises from
a deficiency in the programming being offered.” (citations
omitted)).
1. Procedural Adequacy
Plaintiffs contend that the District’s alleged failure
to consider A.K.’s alternate assessment testing results in
developing his present levels of performance deprived him of a
24
FAPE. (Support Memo at 8-9.) Specifically, Plaintiffs argue that
the record shows that the District failed to utilize A.K.’s
“alternate assessment testing results”, or “any other form of
conventional assessment or benchmarking” towards the discernment
of his present levels of performance, in violation of New York
state regulations. 8 (Id. at 8.)
Among other things, a student’s IEP should include his
present levels of academic achievement and functional performance.
See 20 U.S.C. § 1414(d). Specifically, in developing a child’s
IEP, the CSE must consider: “the results of the initial or most
recent evaluation; the student’s strengths; the concerns of the
parents for enhancing the education of their child; the academic,
developmental and functional needs of the student, including, as
appropriate, the results of the student’s performance on any
general State or districtwide assessment programs. . . .” 8
N.Y.C.R.R. § 200.4(d)(2) (emphasis added); see also §
200.4(f)(1)(iv) (same for annual review of IEP).
Importantly, under the IDEA, not every procedural error
in developing an IEP renders it legally inadequate. See Grim v.
Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). A
8 Notably, though Plaintiffs raise concerns with the District’s failure to include the results of A.K.’s alternative assessment test results in his IEP, the Parents have not challenged A.K.’s actual functioning levels as described in evaluations utilized in generating his IEP. (See IHO 2019 Decision at 11 n.4.) 25
procedural violation will result in the denial of an appropriate
public education only if the procedural inadequacy: “impeded the
child’s right to a [FAPE]”; “significantly impeded the parents’
opportunity to participate in the decision-making process”; or
“caused a deprivation of educational benefits.” R.E., 694 F.3d at
190 (quoting 20 U.S.C. § 1415(f)(3)(E)(ii)). Additionally,
“[m]ultiple procedural violations may cumulatively result in the
denial of a FAPE even if the violations considered individually do
not.” Id. (citation omitted).
Here, it is undisputed that the CSE that convened in
March, April and May 2018 did not consider the results of A.K.’s
2015-2016 or 2016-2017 alternate assessment testing in the
development of his present levels of performance. (See SRO 2019
Decision at 38.) Yet, in this instance, those failures do not
rise to the level of a FAPE violation. 9 See R.B. v. N.Y.C. Dep’t
of Educ., 15 F. Supp. 3d 421, 431 (S.D.N.Y. 2014) (“[T]he absence
of one single measure should not itself render an IEP invalid, so
long as the CSE team otherwise has sufficient information about
the student to determine the student’s educational needs.”
(citation and quotation marks omitted)). First, the hearing record
9 Notably, the Special Education Quality Assurance Regional Office rejected a similar complaint Plaintiffs had filed with the State regarding the District’s alleged failure to utilize A.K.’s N.Y.S. Alternate Assessment (“NYSAA”) results in the development of his 2017-2018 IEP. (See SRO 2019 Decision at 40.)
26
contains evidence that the CSE sufficiently considered numerous
evaluations, reports and observations in assessing AK’s skill
levels. For example, at the March 2018 CSE meeting, A.K.’s special
education teacher, who had administered the NYSAA, shared
2018 CSE at 23.) Second, the CSE members spent substantial time
reviewing and revising the present levels of performance in the
2017-2018 IEP with significant input from the Parents. Moreover,
both A.K.’s mother and her educational consultant indicated
agreement with those performance levels. (See April 2018 CSE at
37-190.) Further, A.K.’s special education teacher and related
service providers reviewed the IEP goals and the progress A.K. had
made during the 2017-18 school year. (See id.) Third, both the
District special education teacher and Dr. Austin testified that
the NYSAA results were of limited valuing i.e., merely informing
the District whether the student was meeting assessment
standards. 10 (See Nov. 20, 2018 Hr’g Tr., ECF No. 32-8, at 157-
158.) Finally, the hearing record reflects that the subject CSE
reviewed objective intelligence testing, including the Stanford-
Binet Test and the Wechsler Individual Achievement Test to
determine A.K.’s present levels, as well as a Vineland assessment
10 According to Dr. Austin’s testimony, A.K.’s NYSAA testing results for the 2016-2017 school year reflected that he was not meeting the standards for alternate assessment in ELA and Math. (Id. at 165-66.) 27
of his adaptive functioning. (See id. at 78, 191-92; May 2018
IEP.)
Thus, based upon the record evidence, the Court finds
that the CSE considered sufficient evaluative information in
developing A.K.’s present levels of performance, and therefore
their failure to consider A.K.’s 2015-2016 and 2016-2017 NYSAA
test results did not render A.K.’s IEP invalid or deny A.K. a FAPE.
See D.B. v. N.Y.C. Dep’t of Educ., 966 F. Supp. 2d 315, 331
(S.D.N.Y. 2013) (finding school district’s failure to perform an
updated evaluation did not deny a FAPE where the CSE had other
“sufficient and accurate information to understand the [s]tudent’s
present levels of performance”); P.L. v. N.Y. Dep’t of Educ., 56
F. Supp. 3d 147, 160 (E.D.N.Y. 2014) (noting that failure to
conduct a vocational assessment “constituted a procedural
violation” but that failure did not result in the denial of a FAPE
where the CSE had sufficient evaluative information).
Accordingly, the Court declines to grant Plaintiffs’ Motion on the
grounds of alleged procedural inadequacy.
2. Substantive Adequacy
The Court next turns to the substantive adequacy of the
IEP and considers whether it was “reasonably calculated to enable
[A.K.] to receive educational benefits.” M.H., 685 F.3d at 242.
An IEP is substantively adequate if it “provide[s] personalized
instruction with sufficient support services to permit the child
28
to benefit educationally from that instruction.” Rowley, 458 U.S.
at 203. “Although the IDEA ‘does not . . . require states to
develop IEPs that maximize the potential of handicapped children,’
the IEP ‘must aim to enable the child to make progress.’” F.L. v.
Bd. of Educ. of the Great Neck U.F.S.D., 274 F. Supp. 3d 94, 119
(E.D.N.Y. 2017) (first quoting S.W. v. N.Y. Dep’t of Educ., 92 F.
Supp. 3d 143, 159 (S.D.N.Y. 2015); then quoting Endrew F. ex rel.
Joseph F. v. Douglas County Sch. Dist. RE-1, 137 S. Ct. 988, 999
(2017)), aff’d, 735 F. App’x 38 (2d Cir. 2018) (summary order).
Further, “as decisions on substantive adequacy implicate
educational policy judgments, administrative determinations on
these matters are entitled to a greater degree of deference by the
court.” B.K. v. N.Y.C. Dep’t of Educ., 12 F. Supp. 3d 343, 368
(E.D.N.Y. 2014) (citing M.H., 685 F.3d at 244 (“[D]eterminations
regarding the substantive adequacy of an IEP should be afforded
more weight than determinations concerning whether an IEP was
developed according to the proper procedures.”)). Accordingly, a
court “must examine the record for any objective evidence
indicating whether the child is likely to make progress or regress
under the proposed plan,” without “impermissibly meddling in state
educational methodology.” Walczak, 142 F.3d at 130 (internal
quotation marks omitted).
Having thoroughly reviewed the hearing record, for the
reasons discussed below, the Court concurs with the SRO’s
29
conclusion that A.K.’s IEP was reasonably calculated to enable
A.K. to receive educational benefits and, therefore, was
substantively adequate.
a. Access to the General Education Curriculum
Plaintiffs argue that the District denied A.K. access to
the general education curriculum based upon the District’s belief
that the general education curriculum could not be modified to
meet the needs of an “alternately assessed special education
student.” (Support Memo at 9-10) (internal quotations omitted).
The Parents’ position that the District must educate A.K. pursuant
to the general education curriculum is misguided.
The IDEA requires that a student’s IEP states “the
child’s present levels of academic achievement and functional
performance,” including “how the child’s disability affects the
child’s involvement and progress in the general education
curriculum.” 20 U.S.C. § 1414(d)(1)(A)(i)(I); see also 34 C.F.R.
§ 300.320(a)1(i); 8 N.Y.C.R.R. § 200.4(d)(2)(i). An IEP must also
describe the “special education and related services . . . that
will be provided” so that the child may “advance appropriately
toward attaining the annual goals” and, when possible, “be involved
in and make progress in the general education curriculum.” Endrew
F., 137 S. Ct. at 994 (2017) (quoting § 1414(d)(1)(A)(i)(IV)).
“[T]he preeminent requirement of [the] IDEA is that the
District individually tailor a program that is sufficiently
30
challenging for the unique needs of each child. [The] IDEA
requires an educational program reasonably calculated to enable a
child to make progress appropriate in light of the child’s
circumstances.” F.L., 735 F. App’x at 40 (quoting Endrew F., 137
S. Ct. at 1000-01). There is no “bright-line rule” determining
“what ‘appropriate’ progress” means; rather, “[t]he adequacy of a
given IEP turns on the unique circumstances of the child for whom
it was created.” Endrew F., 137 S. Ct. at 1001; see also M.H.,
685 F.3d at 245 (“The IDEA does not itself articulate any specific
level of educational benefits that must be provided through an
IEP.”) Notably, the statute ensures an “appropriate” education,
but “not one that provides everything that might be thought
desirable by loving parents.” Walczak, 142 F.3d at 132 (internal
quotation marks omitted).
Having independently reviewed the record, the Court
finds that A.K.’s IEP was sufficiently tailored to meet his
individual needs and enable him to “make progress appropriate in
light of [his] circumstances.” Endrew F., 137 S. Ct. at 1000-01.
It is undisputed that A.K. was identified as an alternately
assessed student. (See IHO 2019 Decision at 58.) 11 Dr. Austin
11 Plaintiffs appear to challenge this point on appeal; however, because this issue was not raised in their due process complaint or on appeal to the SRO, it is deemed abandoned. See supra, at note 7. As noted by IHO Murphy, the determination that A.K. is a student “with a severe disability as defined in the Commissioner’s Regulations and whose demonstrated cognitive ability prevented him 31
testified that the IQ range for students placed in the District’s
high school Regents track program is between 102 and 110. (See
Dec. 11, 2018 Hr’g Tr., ECF No. 32-10, at 124-25.) With an IQ of
49, A.K.’s placement in the Regents track program would be
inappropriate since: he scored below the first percentile when
compared with his same-aged peers (see May 2018 IEP at 1); he
scored below the first percentile in both verbal and non-verbal
assessments and in all components of an assessment of his adaptive
behavior, including communication, daily living skills, and
socialization (see id. at 2); and, in achievement testing, he
scored below the first percentile in listening comprehension, math
problem solving, mathematics, numerical operations, and reading
comprehension (id. at 2-3). Additionally, A.K.’s most recent
psychological evaluation states that he “continues to need to
develop activities of daily living skills and needs to be with
similar peers to be included in skill-appropriate activities.”
(IHO 2019 Decision at 12-13.)
During the March 2018 CSE meeting, the Parents, their
advocate, and A.K.’s then-current special education teacher, urged
Dr. Austin to educate A.K. in-district. (See March 2018 CSE at
from completing the grade level general education curriculum even with program modification and adaptations” was made long before the 2018-2019 school year and was not previously challenged by the Parents. (See IHO 2019 Decision at 61.) Moreover, there is no record evidence that this determination of severe disability as to A.K. has changed. (See id. at 62.) 32
150-202.) The District’s special education teacher questioned the
appropriateness of modifying a high school Common Core curriculum
that was Regents track to accommodate A.K., who was reading at a
“first[-]grade level.” (Id. at 189-92.) Both Dr. Austin and the
District’s special education teacher expressed concern about
modifying the curriculum to that extent while maintaining the
“integrity of the program,” and believed that doing so would be
“educationally unsound.” (Id. at 190-91.)
Discussion regarding the possible modification of the
general education curriculum to meet A.K.’s needs continued during
the April and May 2018 CSE meetings. (See April 2018 CSE at 11-
23; May 2018 CSE at 98-99.) Dr. Austin responded to the Parents’
concerns about A.K.’s access to the general education content
standards and reviewed the federal and state guidance documents
they submitted, but found that certain aspects of the general
education curriculum were “not appropriate” based upon A.K.’s
current level. (See May 2018 CSE at 99.)
The Court agrees with the SRO’s well-reasoned decision
and finds that the District’s IEP was “reasonably calculated” to
enable A.K. to receive educational benefits. See Endrew at 1001.
Notably, the IDEA does not require regular education instructors
“to modify the regular education program beyond recognition.” P.
ex rel. Mr. P. v. Newington Bd. of Educ., 512 F. Supp. 2d 89, 107,
(D. Conn. 2007) (quoting Daniel R.R. v. State Bd. of Educ., 874
33
F.2d 1036, 1048 (5th Cir. 1989)); see also Daniel R.R., 874 F.2d
at 1048-49 (“[M]ainstreaming would be pointless if we forced
instructors to modify the regular education curriculum to the
extent that the handicapped child is not required to learn any of
the skills normally taught in regular education. The child would
be receiving special education instruction in the regular
education classroom; the only advantage to such an arrangement
would be that the child is sitting next to a nonhandicapped
student.”). Therefore, the District was not required, nor would
it have been appropriate, to modify its Regents track high school
curriculum to meet A.K.’s needs. Accordingly, the Court finds
that A.K.’s removal from the general education curriculum did not
violate his right to a FAPE.
b. Annual Goals/Grade-Level Learning Standards
Plaintiffs also argue that the District failed to align
A.K.’s goals with grade-level learning standards, thereby
depriving him of a FAPE. (Support Memo at 11-17.) The Court
disagrees.
An IEP must include a written “statement of measurable
annual goals, including academic and functional goals designed to
meet the child’s needs that result from the child’s disability to
enable the child to be involved in and make progress in the general
education curriculum, and meet each of the child’s other
educational needs that result from the child’s disability.” 20
34
U.S.C. § 1414(d)(1)(A)(i)(II); see also 8 N.Y.C.R.R. §
200.4(d)(2)(iii). These annual goals must include “evaluative
criteria, evaluation procedures and schedules to be used to measure
progress toward meeting the annual goal . . . .” 8 N.Y.C.R.R. §
200.4(d)(2)(iii)(b); see also 20 U.S.C. § 1414(d)(1)(A)(i)(III).
Additionally, for alternately assessed students, state regulations
require that the IEP include “a description of the short-term
instructional objectives and/or benchmarks that are the measurable
intermediate steps between the student’s present level of
performance and the measurable annual goal.” 8 N.Y.C.R.R. §
200.4(d)(2)(iv).
Here, A.K.’s May 2018 IEP included twenty-six annual
goals with corresponding short-term objectives that “were aligned
with, and designed to address, [A.K.]’s identified needs . . . .”
(SRO 2019 Decision at 41; see May 2018 IEP at 10-15.) Each annual
goal included the requisite “evaluative criteria,” “evaluation
procedures,” and “schedules to measure progress” in accordance
with state regulations. (May 2018 IEP at 9-15; see also 8
N.Y.C.R.R. § 200.4(d)(2)(iii)(b).) The hearing record
demonstrates that the May 2018 CSE reviewed and discussed A.K.’s
progress on his then-current annual goals with input from both
Parents, who expressed agreement with the annual goals created for
the upcoming school year. (See May 2018 CSE at 37-40.)
35
To the extent Plaintiffs contend that “students [like
A.K.] who are severely cognitively disabled (aka: alternately
assessed), are supposed to have their goals aligned with grade-
level learning standards” that argument is unavailing. (Reply,
ECF No. 42, at 12 (footnote omitted); see also Support Memo at
11.) While the IDEA “requires an educational program reasonably
calculated to enable a child to make progress appropriate in light
of the child’s circumstances,” Endrew F., 137 S. Ct. at 1001, the
child’s “educational program need not include ‘grade-level
advancement’ if that kind of progress is not ‘a reasonable
prospect’ for the particular child.” F.L., 735 F. App’x at 40
(quoting Endrew F., 137 S. Ct. at 1000). Moreover, although
“[w]hen a child is fully integrated in the regular classroom, as
the [IDEA] prefers, [which] typically means . . . providing a level
of instruction reasonably calculated to permit advancement through
the regular curriculum,” “with respect to a child[, like A.K,] who
is not fully integrated in the regular classroom and not able to
achieve on grade level,” “his IEP need not aim for grade-level
advancement,” but “must be appropriately ambitious in light of his
circumstances,” and set forth “challenging objectives.” Endrew
F., 137 S. Ct. at 1000. Based upon the record evidence, the Court
finds no reason to disturb the SRO’s finding that the goals
contained in A.K.’s 2018-2019 IEP were appropriately aligned with
A.K.’s needs and fulfilled the requirements of the IDEA, and
36
federal and state regulations. See Grim, 346 F.3d at 381 (“[T]he
sufficiency of goals and strategies in an IEP is precisely the
type of issue upon which the IDEA requires deference to the
expertise of the administrative decisions”). Hence, Plaintiffs’
Motion is denied on the grounds that the District failed to align
A.K.’s goals with grade-level learning standards.
c. Least Restrictive Environment
Finally, Plaintiffs maintain that the District’s
recommendation of a 12:1+1 special class placement in a life skills
program located within an out-of-district public school was not
A.K.’s least restrictive environment (“LRE”). (See Support Memo
at 11-12.) They argue that the District pre-determined A.K.’s
educational placement without conducting a meaningful analysis
regarding its genuine ability to educate A.K. internally. 12 (Id.
at 13-17.) The record does not support that position.
The law expresses a strong preference for children with
disabilities to be educated, “to the maximum extent appropriate,”
together with their non-disabled peers. Walczak, 142 F.3d at 122
12 Similarly, Plaintiffs’ contention that the CSE failed to utilize any peer-based research in formulating A.K.’s IEP does not support their argument that the CSE’s recommended placement did not represent A.K.’s LRE. (Cf. Support Memo at 20.) There is no absolute requirement that an IEP be supported by peer-reviewed research, but only that it be supported to the “extent practicable.” See 20 U.S.C. § 1414(d)(1)(A)(i)(IV); 34 C.F.R. § 300.320(a)(4); 8 N.Y.C.R.R. § 200.4(d)(2)(v)(b).
37
(quoting 20 U.S.C. § 1412(5)(A).) To that end, special education
services “must be provided in the least restrictive setting
consistent with a child’s needs. 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. (quoting 20 U.S.C. § 1412(a)(5)). Thus,
[w]hile mainstreaming is an important objective, [courts] are mindful that the presumption in favor of mainstreaming must be weighed against the importance of providing an appropriate education to handicapped students. Therefore, under the [IDEA], “where the nature or severity of the handicap is such that education in regular classes cannot be achieved satisfactorily, mainstreaming is inappropriate.
Id. (citing Briggs v. Bd. of Educ., 882 F.2d 688, 692 (2d Cir.
1989)). New York regulations require that
[t]he placement of an individual student with a disability in the least restrictive environment shall: (1) provide the special education needed by the student; (2) provide for education of the student to the maximum extent appropriate to the needs of the student with other students who do not have disabilities; and (3) be as close as possible to the student's home.
8 N.Y.C.R.R. § 200.1(cc). State regulations further require that
school districts ensure that a continuum of alternative placements
be available to meet the needs of students with disabilities for
special education and related services. See 8 N.Y.C.R.R. § 200.6;
38
see also T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist., 752 F.3d
145, 165 (2d Cir. 2014) (stating a school district “cannot avoid
the least restrictive environment requirement just by deciding not
to operate certain types of educational environments; instead, it
must provide a continuum of alternative placements that meet the
needs of the disabled children that it serves.”). However, “a
school district need not itself operate all of the different
educational programs on this continuum of alternative placements.
The continuum may instead include free public placements at
educational programs operated by other entities, including other
public agencies or private schools.” T.M., 752 F.3d at 165 (citing
34 C.F.R. § 300.552 note (1998); further citation omitted).
To determine whether an IEP places a student in the LRE,
the Second Circuit has adopted a two-prong test: under prong one,
the court first considers whether education in the general
classroom, with the use of supplemental aids and services, can be
achieved satisfactorily for a given student; if not, under prong
two, the court then considers whether the school has mainstreamed
the student to the maximum extent appropriate (hereafter, the
“Mainstreaming Test”). See P. ex rel. Mr. and Mrs. P. v. Newington
Bd. of Educ., 546 F.3d 111, 120 (2d Cir. 2008) (explicitly
endorsing two-pronged mainstreaming test adopted by the Third,
Fifth, Ninth, Tenth, and Eleventh Circuits for determining whether
an IEP places a student in the LRE).
39
When determining the first prong of the Mainstreaming
Test, courts consider:
(1) whether the district made reasonable efforts to accommodate the child in a regular classroom; (2) the educational benefits available to the child in a regular class with appropriate supplementary aids and services, as compared to the benefits provided in a special education class; and (3) the possible negative effects of the inclusion of the child on the education of the other students in the class.
Id. (quoting Oberti v. Clementon Sch. Dist., 995 F.2d 1204, 1217-
18 (3d Cir. 1993)); see id. at 120 (noting that “this list of
factors is not exhaustive; courts facing these cases must engage
in an individualized and fact-specific inquiry into the nature of
the student’s condition and the school’s particular efforts to
accommodate it”). “If, after considering these factors, the court
determines that the school district was justified in removing the
child from the regular classroom and providing education in a
segregated, special education class, the court must consider the
second prong of the [M]ainstreaming [T]est—whether the school has
included the child in school programs with nondisabled children to
the maximum extent appropriate.” Id. (quoting Oberti, 995 F.2d at
1218). “In this regard, courts should evaluate whether the child
has been included in school programs—including non-academic
components of the school day like lunch and recess—alongside
children without disabilities to the maximum extent appropriate.”
40
J.G. ex rel. N.G. v. Kiryas Joel Union Free Sch. Dist., 777 F.
Supp. 2d 606, 640 (S.D.N.Y. 2011) (citing Newington, 546 F.3d at
120.) Having independently reviewed the hearing record, the Court
finds that the SRO properly applied Newington’s Mainstreaming Test
and correctly concluded that the District’s recommendation of
placing A.K. in an out-of-district 12:1+1 special life skills
program was in the least restrictive environment. 13
First, in determining whether A.K. can be educated
satisfactorily in a general education class with supplemental aids
and services, the objective evidence demonstrates he cannot. A.K.
has low “cognitive functioning” and significant needs in “daily
living, communication, problem solving, and functional independent
skills.” (IHO 2019 Decision at 44.) Moreover, the CSE considered
A.K.’s placement options, including “pushing [A.K.] into general
education classes and the extent to which modifications to the
curriculum would be necessary or appropriate” to meet A.K.’s needs;
it also considered the Parents’ “preferred placement option” --
creating a “hybrid program.” (SRO 2019 Decision at 47.) However,
based upon A.K.’s then-current levels of performance, the CSE
13 Plaintiffs attempt to distinguish Newington from the instant case and contend that the SRO should have applied the Sixth Circuit’s approach to determine whether A.K.’s IEP placed him in the LRE. (Reply at 17-19 (citing Roncker v. Walter, 700 F.2d 1058 (6th Cir. 1983).) However, the Second Circuit has specifically declined to adopt the Sixth Circuit’s approach. See Newington, 546 F.3d at 119 & n.3. 41
determined that these placement options were “not appropriate.”
(May 2018 CSE at 99.) Rather, informing the Parents that the
District did not have an “alternatively assessed program” at the
high school level that would address A.K.’s functional needs, the
CSE recommended an out-of-district program in the Middle Country
School District, which included those necessary components.
(April 2018 CSE at 23, 122.) In its decision-making process, the
May 2018 CSE was further guided by prior administrative decisions
regarding A.K.’s 2016-2017 and 2017-2018 academic years, i.e.,
that the 12:1+1 special class placement in a life skills program
in an out-of-district public school offered A.K. a FAPE in the
LRE. 14 (See SRO 2019 Decision at 46.) Notably, SRO Harrington
concluded that the evidence in the hearing record demonstrated
that A.K.’s needs had not changed from the previous school years
when similar recommendations were made. (See id.) Therefore, the
Court finds that the hearing record sufficiently supports the SRO’s
conclusion that the May 2018 CSE’s decision to recommend an out-
of-district public school to implement A.K.’s IEP was appropriate
and that the District was not required to create a program to meet
its LRE obligations. See T.M., 752 F.3d at 166 (stating the IDEA
does not require a school district to “create a new [ ] program
from scratch just to serve the needs of one disabled child.”)
14 Those administrative decisions were recently upheld by this Court. See A.K., 2021 WL 621236, adopted by 2021 WL 665277. 42
As to Plaintiffs’ argument that the District
predetermined A.K.’s placement, thereby violating its legal
obligation to educate A.K. “as close to home as possible”, it is
without merit. (See Support Memo at 13-17.) While parents have
a procedural right in the educational placement of their child,
“i.e., the academic program to which the student is assigned,”
they “are not . . . procedurally entitled to participate in the
decision regarding school placement,” i.e., “the specific location
to which the student is assigned.” F.L. ex rel. F.L. v. N.Y.C.
Dep’t of Educ., No. 11-CV-5131, 2012 WL 4891748, at *11 (S.D.N.Y.
Oct. 16, 2012) (citing T.Y., 584 F.3d at 420)). The Court
understands and appreciates Plaintiffs’ desire to have A.K.
educated within their home district, but the law does not require
the District to place A.K. in the District the Parents’ request; 15
it merely requires that the District make a recommendation that is
“reasonably calculated to enable [A.K.] to receive educational
benefits.” Gagliardo, 489 F. 3d at 112; see also R.E., 694 F.3d
at 191-92 (“The Department may select the specific school without
the advice of the parents so long as it conforms to the program
offered in the IEP.”). Review of the hearing record supports the
SRO’s conclusion that Westhampton did not have the 12:1+1 special
15 Of note: The District canvassed several neighboring districts to determine whether they had an appropriate placement for A.K. and facilitated a site visit for the Parents to the Middle Country School District. (See March 2018 CSE at 42, 85, 102.) 43
class program in the high school at the time of the May 2018 CSE
meeting, thereby warranting A.K.’s placement outside of his
District in order to provide his IEP, which required A.K. be placed
in a life skills program.
Finally, A.K.’s recommended placement satisfies the
second prong of the Mainstreaming Test since it includes a special
class placement for A.K. within a general education school allowing
him to attend electives and lunch with his general education peers.
See Newington, 546 F. 3d at 120. (See also May 2018 IEP.)
In sum, finding the SRO’s decision is supported by a
preponderance of the evidence and her determination of an
appropriate school program is the type of educational policy
determination to which the Court affords great deference, see
Rowley, 458 U.S. at 206, the Court affirms the SRO’s determination
that the May 2018 IEP provided A.K. a FAPE in the least restrictive
environment, as mandated by the IDEA.
CONCLUSION
Accordingly, IT IS HEREBY ORDERED that Plaintiffs’
Motion (ECF No. 39) is DENIED. The Clerk of the Court is directed
to enter judgment in Defendants’ favor and to close this case.
SO ORDERED.
/s/ JOANNA SEYBERT Joanna Seybert, U.S.D.J. Dated: October 11 , 2021 Central Islip, New York
44