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 20-CV-4763(JS)(SIL) -against-
WESTHAMPTON BEACH SCHOOL DISTRICT; SUZANNE MENSCH and JOYCE DONNESSON, as Board of Education Members; MICHAEL RADDAY, as Superintendent; MARY ANN AMBROSINI, as Director of Pupil Personnel and CSE Chairperson,
Defendants. ----------------------------------x For Plaintiffs: Christian Killoran, Esq., Pro Se 132-13 Main Street Westhampton Beach, New York 11978
For Defendants: Anne C. Leahey, Esq. Anne Leahey Law, LLC 17 Dumplin Hill Lane Huntington, New York 11743
SEYBERT, District Judge:
Pro se plaintiffs Christian Killoran (“Mr. K” or “the
parent”) and Terrie Killoran (“Mrs. K”) (together, “the
Plaintiffs”), individually and as parents to A.K., a child with
Down Syndrome, commenced this action against defendants
Westhampton Beach School District, (“Westhampton” or the
“District”), Suzanne M. Mensch, and Joyce L. Donnesson (together,
1
the “School Board”), Michael Radday, (“the Superintendent”), Mary
Ann Ambrosini, (“Director of Pupil Personnel,” and collectively
with Westhampton, the School Board, and the Superintendent, the
“Defendants”). Plaintiffs’ Complaint seeks review of the
September 16, 2020 administrative decision of state review officer
(“SRO”) Justyn P. Bates (“SRO Bates”) reversing the August 7, 2020
determination of independent hearing officer (“IHO”) Kenneth S.
Ritzenberg (“IHO Ritzenberg”) that the District provided 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 2019-2020
academic year but denying Plaintiffs compensatory education.
(Complaint (“Compl.”), ECF No. 1.) It also purports to allege
violations of the Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12101 et seq., and Section 504 of the Rehabilitation Act
(“Rehabilitation Act”), 29 U.S.C. § 701 et seq. (Id.)
Currently pending before the Court is Plaintiffs’ motion
for partial summary judgment (hereafter, the “Motion”) (ECF No.
15) with respect to the SRO’s denial of compensatory education.
After careful consideration, for the reasons stated herein,
Plaintiffs’ Motion is DENIED.
[Remainder of page intentionally left blank.]
2
BACKGROUND
This action is one in a series of civil rights litigation
brought by Plaintiffs against Westhampton concerning the education
of Plaintiffs’ son, A.K.; it arises out of Defendants’ development
of A.K.’s individualized education plan (“IEP”) and placement for
the 2019-2020 academic year. (See Compl.) The Court assumes
familiarity with the background of this case, which is chronicled
in its various prior Orders. See, e.g., Killoran v. Westhampton
Beach UFSD, No. 19-CV-6663, 2020 WL 4740498, at *1-3 (E.D.N.Y.
June 24, 2020), report and recommendation adopted, 2020 WL 4743189
(E.D. N.Y. July 27, 2020). Thus, the Court confines its analysis
to the relevant issues presented in Plaintiffs’ Motion.
I. Statutory Framework of 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
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
3
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, local committees on special education (“CSE”) are
responsible for determining whether a child should be classified
as eligible for educational services under [the] IDEA and, if so,
for developing an appropriate IEP for that child.” S.H. v. N.Y.C.
Dep’t of Educ., No. 09-CV-6072, 2011 WL 609885, at *1 (S.D.N.Y.
Feb. 18, 2011) (citing Walczak, 142 F.3d at 123). 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. The education provided must “be
sufficient to confer some educational benefit upon the handicapped
child,” Rowley, 458 U.S. at 200, but it need not “provide[ ]
everything that might be thought desirable by loving parents,”
Walczak, 142 F.3d at 132 (internal quotation marks omitted).
“Parents who believe that their school district has
failed to provide their child with a [FAPE]--due to an inadequate
IEP or otherwise--may file a complaint with the state educational
agency and request an impartial due process hearing before a
hearing officer.” S.H., 2011 WL 609885, at *1 (citing Walczak,
142 F.3d at 123). Either party may appeal an adverse decision to
the appropriate state agency. Id. “Only after these
administrative remedies have been exhausted may an aggrieved party
4
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)). “One of the matters that must
be administratively exhausted in order to be reviewed in a federal
court is the issue of remedies, including whether a child should
receive compensatory education.” Id.
II. Factual Background 1
On September 5, 2019, unsatisfied with the CSE’s IEP for
A.K. for the 2019-2020 academic year, Mr. K filed a due process
complaint alleging that the District failed to provide A.K. with
a FAPE. (Sept. 5, 2019 Due Process Complaint (“DPC”), ECF No. 16-
3, at 4-6.) Following a prehearing conference, on or about October
15, 2019, the parent submitted an undated amended due process
complaint. (Amended Due Process Complaint (“ADPC”), ECF No. 16-
3, at 7-34.) Both due process complaints indicated that Mr. K was
objecting to three CSE meetings conducted in June, July, and August
2019, respectively, and the resultant IEP for the 2019-2020
academic year. (See DPC; ADPC.) Without conducting an impartial
hearing, in a November 15, 2019 decision, IHO Ritzenberg granted
1 The following facts are taken from the Complaint, the parties’ submissions and the underlying administrative record (see ECF No. 16 through ECF No. 16-5), and are undisputed unless otherwise noted. For ease of reference, the Court cites to the Electronic Case Filing System (“ECF”) pagination.
5
the District’s motion to dismiss the ADPC based upon res judicata,
sufficiency of the due process complaint notice, and jurisdiction
of the IHO. (September 16, 2020 SRO Bates Decision (“SRO
Decision”), ECF No. 16, at 8.)
Mr. K appealed the IHO’s dismissal to the N.Y.S.
Education Department’s Office of State Review (“OSR”) solely with
respect to the res judicata determination. (Id.) In a decision
dated December 26, 2019, SRO Bates found that IHO Ritzenberg had
“prematurely dismissed the parent’s claims without an evidentiary
hearing.” (Id.) Though SRO Bates acknowledged the similarity of
the parent’s claims to those raised previously and resolved for
the 2018-19 academic year, he pointed out that the parent’s current
claims related to the 2019-20 academic year; therefore, he remanded
the matter to the IHO for further adjudication on the issue of the
appropriateness of A.K.’s IEP specifically for the 2019-20
academic year. (Id.) Nevertheless, SRO Bates recognized:
[I]n considering the parent’s claim relevant to the 2019-20 school year, it was “important to take into account prior school year determinations and the extent to which [A.K.]’s needs have changed, the progress [A.K.] has made since his previous IEP was developed, and the extent to which the [D]istrict’s available continuum of programs ha[s] changed during the intervening period, if at all.”
(Id.) SRO Bates directed the District to be prepared to defend
against the parent’s alleged claims “by presenting evidence
6
regarding why the CSE made the recommendation that it did and
whether [A.K.]’s needs and progress remained constant such that a
placement recommendation similar to prior school years continued
to be appropriate for the 2019-20 school year.” (Id. at 9
(citation omitted).)
A. IHO Decision on Remand
On remand, IHO Ritzenberg limited the evidentiary
hearing to factual matters related to whether A.K.’s condition had
changed since the prior administrative decisions for the 2018-19
academic year “to merit consideration of a different placement,”
or if the District’s offerings had changed since the prior year so
that it could now accommodate A.K. 2 (Aug. 7, 2020 IHO Ritzenberg
Decision (“IHO Decision”), ECF No. 16, at 43.) In an August 7,
2020 decision, IHO Ritzenberg granted the District’s motion to
dismiss the ADPC in its entirety finding that the educational
program and services recommended by the District’s CSE for A.K.
for the 2019-2020 academic year were appropriate. (Id. at 70—72.)
2 In the prior February 20, 2019 administrative decision, referenced by IHO Ritzenberg, IHO Leah L. Murphy (“IHO Murphy”) found that A.K. was provided a FAPE for the 2018-19 academic year. (See SRO Decision at 10, n.8.) This decision was affirmed on appeal to SRO Sarah L. Harrington (id.), and upheld by this Court on October 11, 2021. Killoran v. Westhampton Beach Sch. Dist., 19-CV-3298, 2021 WL 4776720 (E.D.N.Y. Oct. 11, 2021).
7
In the IHO Decision, IHO Ritzenberg highlighted the
parent’s challenge to A.K.’s classification as a “severely
disabled student,” an issue not raised in either of his due process
complaints. (Id. at 46-47.) According to the IHO, the parent
failed “to submit a single salient fact regarding whether [A.K.]’s
needs have changed, the progress [A.K.] has made since his previous
IEP was developed and the extent to which the District’s available
continuum of programs have changed during the intervening period,
if at all since IHO Murphy’s determination.” (Id.) (internal
quotations omitted). The IHO found that the parent’s arguments
appeared to be an appeal of IHO Murphy’s prior decision with
respect to the 2018-19 academic year, which IHO Ritzenberg had no
authority to review and which, in fact, had already been appealed
and upheld by an SRO. (Id. at 47.)
On the other hand, the IHO noted that the District argued
that it offered A.K. a FAPE for the 2019-20 academic year on the
basis that his needs had not changed since the previous IEP was
developed, and that there had not been any modifications to the
District’s curriculum during the 2019-20 academic year that would
enable it to provide a suitable program for A.K. in the District.
(Id. at 49.) However, IHO Ritzenberg pointed out that, although
the District submitted an IEP dated December 18, 2019 for A.K.
from the 2019-20 academic year, neither party chose to submit the
8
IEP from the prior academic year, “which could arguably demonstrate
that [A.K.]’s needs have or have not changed.” (Id. at 51.)
The IHO concluded that the District had met its burden
of demonstrating that there were no changes to A.K.’s needs or
conditions, or to the District’s programs since IHO Murphy’s 2019
Decision, but that the parent failed to provide “any factual
allegations whatsoever that A.K.’s needs have changed from the
2018-19 school year.” (Id. at 70-71.) Alternatively, the IHO
found that “[e]ven if the substantive issues [ ] were to be
determined on the factual evidence [submitted], . . . [he] would
find. . . that the District had provided A.K. with a FAPE in the
LRE.” (Id. at 71.)
B. SRO Decision
Once more, Mr. K administratively appealed the IHO
Decision to the OSR, asserting that IHO Ritzenberg erred in finding
that the District offered A.K. a FAPE for the 2019-20 academic
year. (SRO Decision at 6.) He requested that the IHO Decision be
overturned and that his “claims be sustained or alternatively
remanded for proper adjudication.” (Id. at 16.) More
specifically, Mr. K objected to the “IHO’s adoption of legal
conclusions from prior matters involving [A.K.] and his
instructions to limit the scope of the impartial hearing to the
question of whether [A.K.’s] needs or the District’s offerings had
changed since the last proceeding.” (Id. at 22.) Additionally,
9
he again challenged the IHO’s description of A.K. as “severely
disabled.” 3 (Id.)
In his September 16, 2020, lengthy and detailed
decision, SRO Bates found that although the IHO’s adoption of legal
principles from prior matters between the parties was not legal
error, the IHO inappropriately shifted the burden of production
from the District to the parent regarding whether the District
offered A.K. a FAPE for the 2019-20 academic year. (Id. at 22-
23, 26.) The SRO noted that in his remand instructions, he had
directed the District to present evidence “regarding why the CSE
made the recommendation that it did and whether [A.K.]’s needs and
progress remained constant such that a placement recommendation
similar to prior school years continued to be appropriate for the
2019-20 school year.” (Id. at 26 (emphasis eliminated).) Though
the IHO acknowledged that neither party submitted any facts
demonstrating whether A.K.’s needs had changed from his prior 2018-
19 IEP, the SRO noted that “the IHO erroneously faulted the parent
for gaps in the evidentiary record rather that the [D]istrict.” 4
3 The SRO rejected the parent’s claim that the IHO should have considered whether A.K. is a “severely disabled student” noting, among other reasons, that the parent had not raised this issue in either of his due process complaints, and, in fact, acknowledged that A.K. was “classified as an alternately assessed special education student.” (Id. at 22-24.) 4 Although the District acknowledged at the hearing that the parent was challenging three CSE meetings held in June, July and August 2019 for A.K.’s annual review, it failed to enter any 10
(Id. at 28.) SRO Bates concluded that the District had failed to
meet its evidentiary burden to defend the IEP and program that it
recommended for A.K. for the 2019-20 academic year and, therefore,
denied A.K. a FAPE. (Id. at 27-29.)
As to the parent’s requested relief, SRO Bates noted
that both due process complaints requested compensatory education
and that the District be required to create a hybrid program for
A.K. (Id. at 29.) However, in his request for review, the parent
did not request any specific relief but merely asked that “the IHO
decision be overturned and his claims sustained.” (Id.)
Therefore, SRO Bates concluded that the parent had abandoned his
request for an order requiring the District to hire an expert to
supervise the implementation of a hybrid program, and further noted
that it has been previously decided that the District is not
required to create such a program for A.K. (Id. at note 40.)
Thus, the only potential relief that SRO Bates considered was
compensatory education, which he found was not warranted. (Id. at
29.)
Specifically, SRO Bates acknowledged that an award of
compensatory education should “aim to place the student in the
position he or she would have been in had the [D]istrict complied
with its obligations under the IDEA.” (Id. at 30 (citing
record. (Id. at 27.) 11
Newington, 546 F.3d at 123).) However, he noted that A.K. had
been receiving special education and related services through his
pendency placement pursuant to an agreement between the parties.
(Id.) In accordance with that agreement, A.K. was receiving
related services daily in the morning at an in-district school and
instruction from a special education teacher in the afternoons at
home or in the local public library. (Id.) SRO Bates reasoned
that “[b]ased on [A.K.]’s receipt of pendency services in a 1:1
setting, he “received his special education services in arguably,
the most supportive and intensive settings available on the
continuum of special education placements.” (Id. at 31.) He
further stated that the hybrid nature of the pendency services
permitted A.K. to receive related services in the school setting.
(Id.) Additionally, SRO Bates found that the hearing record
reflected that during the 2019-20 academic year, A.K. “worked on
approximately 21 annual goals and reportedly made gradual or
satisfactory progress towards most of his IEP goals and achieved
several short-term objectives by April and May 2020.” (Id.)
Moreover, A.K. received educational consultant services, and his
parents participated in monthly parent counseling and training.
(Id.) Based upon the hearing record and the parent’s failure to
identify the specific relief sought in the request for review, it
was “altogether unclear” what compensatory education services
“could place [A.K.] in the position that he would have been but
12
for the denial of a FAPE.” (Id.) Therefore, SRO Bates concluded
that “given the nature of the parent’s claims and the services
owed to [A.K.] pursuant to pendency during the 2019-20 school year,
there [was] no basis in the hearing record for an award of
compensatory education services.” (Id. at 31-32.)
C. The Instant Action
On October 5, 2020, Plaintiffs commenced this action
seeking review of the SRO’s Decision denying compensatory
education. (See Compl.) Additionally, Plaintiffs asserted claims
under the ADA and the Rehabilitation Act. (Id.) On January 13,
2021, Plaintiffs filed the instant Motion with respect to the SRO’s
denial of compensatory education. On February 11, 2021, Defendants
filed their opposition to the Motion. (Opp’n, ECF No. 17.) On
February 22, 2021, Plaintiffs filed a reply brief in further
support of their Motion. (Reply, ECF No. 18.)
DISCUSSION
I. Legal 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.C. Dep’t of Educ., 584 F.3d 412, 417 (2d Cir. 2009)
(quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105,
112 (2d Cir. 2007). “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.
13
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.
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
14
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. Subject Matter Jurisdiction
As a threshold matter, Defendants contend that this
Court lacks subject matter jurisdiction over Plaintiffs’ appeal of
the SRO’s denial of compensatory education because Plaintiffs
failed to “specifically request compensatory education or set
forth the specific educational services required to compensate
[A.K.] for an educational deprivation” in their request for review.
(See Opp’n at 13-16.) 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
15
a case in federal court because it “deprives the court of subject
matter jurisdiction.” Id. at 246 (citing Polera, 288 F.3d at 483.)
Under New York state regulations, when an aggrieved
party seeks review by an SRO, he must file a request for review
which must “clearly specify the reasons for challenging the [IHO]’s
decision, identify the findings, conclusions and orders to which
exceptions are taken, . . . , and shall indicate what relief should
be granted by the [SRO].” N.Y. Comp. Codes R. & Regs. tit. 8, §
279.4(a) (2017). Any issue not so identified shall be deemed
abandoned and will not be addressed by the SRO. Id. § 279.8(c)(4).
Here, in his request for review, the parent claimed that
the IHO “erred in concluding that ‘back-end’ compensatory
education would not be an appropriate remedy for the violations
committed by the respondent district.” (Request for Review, ECF
No. 16, at 88.) As discussed, the parent requested that “IHO
Ritzenberg’s decision be overturned” and that the parent’s claims
be “sustained or alternatively remanded for appropriate
adjudication.” (Id. at 90.)
Though the request for review appears to be procedurally
deficient under state regulations, the Court has previously found
such procedural errors are insufficient to constitute exhaustion
failure. See Killoran, 2021 WL 4776720, at *7 (citing Killoran,
2020 WL 4740498, at *4 (recommending denying District’s motion to
dismiss parents’ IDEA claim for lack of subject matter jurisdiction
16
where parents’ administrative appeal was dismissed in part because
of their failure to comply with practice regulations), report and
recommendation adopted, 2020 WL 4743189 (E.D.N.Y. July 27,
2020))). “Whereas 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.” Killoran, 2020 WL
4740498, 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)).
Moreover, in his decision, SRO Bates noted the
procedural inadequacy of the parent’s request for review which did
not set forth the specific educational services required to
compensate A.K. for the denial of a FAPE for the 2019-20 academic
year, but simply requested that “the IHO decision be overturned
and his claims sustained.” (SRO Decision at 29.) Nonetheless,
SRO Bates addressed the issue of compensatory education noting
that the parent’s due process complaints had requested this
17
specific relief. 5 (Id.) In light of SRO Bates’ substantive
analysis and determination regarding compensatory education, it
would be “illogical to conclude that Plaintiffs have failed to
exhaust their administrative remedies when their claims were fully
assessed on the merits by the SRO.” J.E., 2015 WL 4934535, at *5.
Accordingly, despite the procedural defect in the parent’s request
for review, the Court is not precluded from asserting subject
matter jurisdiction over Plaintiffs’ appeal.
III. Compensatory Education
Compensatory education is “prospective equitable relief”
that requires a school district to fund additional educational
services “as a remedy for any earlier deprivations in a child’s
education.” Somoza v. N.Y.C. Dep’t of Educ., 538 F.3d 106, 109
n.2 (2d Cir. 2008) (citation omitted). This form of relief “serves
to compensate a student who was actually educated under an
inadequate IEP and to catch-up the student to where he should have
been absent the denial of a FAPE” S.A. ex rel. M.A.K. v. N.Y.C.
Dep’t of Educ., No. 12-CV-0435, 2014 WL 1311761, at *7 (E.D.N.Y.
Mar. 30, 2014) (internal quotation marks omitted); see also P. ex
rel. Mr. and Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 122
(2d Cir. 2008) (noting that “compensatory education is an available
5 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 Defendants. See 20 U.S.C. § 1415(f)(3)(B). 18
option under the [IDEA] to make up for the denial of a [FAPE]”). 6
An award of compensatory education “must be reasonably calculated
to provide the educational benefits that likely would have accrued
from special education services the school district should have
supplied in the first place.” Doe v. E. Lyme Bd. of Educ., 790
F.3d 440, 457 (2d Cir. 2015) (quoting Reid ex rel. Reid v. Dist.
of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005)).
Plaintiffs argue that because SRO Bates “sustained”
their administrative appeal and found that the District denied
A.K. a FAPE for the 2019-20 academic year, in effect, he sustained
all of Plaintiffs’ assertions and, therefore, this Court should
find that A.K. suffered a “significant educational deprivation”
entitling him to compensatory education. (Pls. Mot. at 4-5, 15-
16.) Plaintiffs are mistaken.
It is well-settled that the finding of a FAPE violation
does not, without more, trigger an entitlement to compensatory
education. See M.C. v. Lake George Cent. Sch. Dist., No. 10-CV-
1068, 2012 WL 3886159, at *6 (N.D.N.Y. Sept. 6, 2012) (“While the
6 “Before awarding compensatory education for a student older than twenty-one, a court must find a gross violation of the student’s right to a FAPE; however, whether the same prerequisite exists to awarding compensatory education for a younger student is an open question.” S.A., 2014 WL 1311761, at *7 (citation omitted). A.K. was born on September 2, 2002, making him 17-years-old at the time of the filing of his due process complaints. (See IHO Decision at 55.) Because the Court finds that compensatory education is not warranted here, it need not reach this issue. 19
issue of whether Defendant fulfilled its obligations under the
IDEA is pertinent to an award of compensatory education, whether
to award compensatory education as a result of the failure to
comply with the IDEA is a distinct issue.”) Notably, SRO Bates’
finding of a FAPE violation was not based on any substantive
evidence related to the sufficiency of A.K.’s IEP, but rather was
based on the District’s failure to satisfy its burden of proof to
demonstrate that it offered A.K. a FAPE for the 2019-20 academic
year. (See SRO Decision at 28-29 (finding the District failed to
enter into the hearing record “any information regarding [the]
three CSE meetings . . . and the resultant IEP(s) from those
meetings” that formed the basis of Plaintiffs’ due process
complaints); see id. at 27.)
Moreover, compensatory education is not warranted here
because throughout the administrative proceedings regarding the
2019-20 academic year, A.K. was receiving his special education
and related services pursuant to a pendency agreement between the
parties. (See SRO Decision at 30.) Pursuant to that agreement,
A.K. received related services within the District daily in the
mornings and then 1:1 special education instruction at the local
library in the afternoons. (Id.; see also id. at note 41.)
Plaintiffs contend that they were “forced to abide by the ‘pendency
arrangement’” when A.K.’s FAPE rights were denied and that “a
‘pendency placement’ tolls a school district’s obligations to
20
pursue compliance with the IDEA in perpetuity.” (Pls. Mot. at 9-
10.) However, Plaintiffs misconstrue the purpose of pendency
placement.
The IDEA’s stay-put provision provides in relevant part
that “during the pendency of any proceedings conducted pursuant to
[20 U.S.C. § 1415] . . . the child shall remain in the then-current
educational placement of the child.” 20 U.S.C. § 1415(j). The
term “then-current educational placement” in the stay-put
provision typically refers to the child’s last agreed-upon
educational program before the parent requested a due process
hearing to challenge the child’s IEP. Ventura de Paulino v. N.Y.C.
Dep’t of Educ., 959 F.3d 519, 532 (2d Cir. 2020); Arlington Cent.
Sch. Dist. v. L.P., 421 F. Supp. 2d 692, 697 (S.D.N.Y. Mar. 14,
2006) (noting that the stay-put provision is applicable to pendency
placement that arises from an agreement between the parties)
(citation omitted). The stay-put provision exists to “provide
stability and consistency in the education of a student with a
disability,” Arlington, 421 F. Supp. 2d at 696, and to maintain
“the educational status quo while the parties’ dispute is being
resolved.” T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist., 752
F.3d 145, 152 (2d Cir. 2014).
Here, the pendency placement was the result of an
agreement between the parties during the administrative process
regarding the 2016-17 academic year. (Opp’n. at 27-28; SRO
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Decision at 30.) In 2019, the parties amended the pendency
agreement to allow for special education to take place in the local
library instead of A.K.’s home. (Opp’n at 27-28.) This agreement
has been referenced as A.K.’s pendency placement in numerous
administrative decisions and was most recently upheld by this
Court. See Killoran v. Westhampton Beach Sch. Dist., No. 20-CV-
4121, 2022 WL 866816, (E.D.N.Y. March 22, 2022). 7 In that case,
Mr. K sought compensatory education damages for a purported
violation of the stay-put provision of the IDEA but conceded that
until the onset of the COVID-19 pandemic, A.K. was receiving his
instruction in accordance with the pendency placement agreement.
Id. at *4. The Court found that the District’s provision of A.K.’s
special education instruction at home, in light of the library’s
closure due to the COVID-19 pandemic, was not a violation of the
stay-put provision because the District was complying with the
terms of the parties’ pendency placement agreement. Id. at *6.
Therefore, the Court dismissed Plaintiffs’ IDEA claim. Id.
Plaintiffs now contend that pendency placement is
limited to “situs” and has nothing to do with the “substantive
appropriateness” of instruction. (Pls. Mot. at 8, 17-18.)
However, SRO Bates considered the substantive adequacy of A.K.’s
7 The Court notes that Mr. K, the sole plaintiff in that action, has just appealed that decision. See Killoran, No. 20-CV-4121, Notice of Appeal, ECF No. 28 (E.D.N.Y. Mar. 29, 2022). 22
pendency education and found that A.K. “received his special
education services in arguably, the most supportive and intensive
settings available on the continuum of special education
placements.” (SRO Decision at 31.) In part, he based his decision
on the “gradual or satisfactory progress” A.K. made towards most
of his IEP goals and his achievement of several short-term
objectives. (Id. at 31 (citing A.K.’s 2019-2020 IEP Measurable
Annual Goals, ECF No. 16-4 pp. 12-18, and A.K.’s May 9, 2020
Quarterly Progress Report, ECF No. 16-4 pp. 34-56).) Further, as
SRO Bates noted, the hybrid nature of the pendency services
permitted A.K. to receive related services in the school setting
and 1:1 special education instruction. (Id.)
Based upon the record before it, which clearly
substantiates the SRO’s well-reasoned decision regarding A.K.’s
receipt of his special education services, the Court finds no
reason to disturb that decision. See M.S. ex rel. S.S. v. Bd. of
Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 (2d Cir.
2000) (“An assessment of educational progress is a type of judgment
for which the district court should defer to the SRO’s educational
experience, particularly where . . . the district court’s decision
[is] based solely on the record that was before the SRO), abrogated
in part on other grounds, Schaffer v. Weast, 546 U.S. 49 (2005);
M.M. v. N.Y.C. Dep’t of Educ., No. 15-CV-5846, 2017 WL 1194685, at
*6 (S.D.N.Y. Mar. 30, 2017) (“[O]verturning the SRO’s well-
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reasoned decision would improperly ‘substitute [the Court’s] own
notions of sound educational policy for those of the school
authorities which [it] review[s].’” (quoting M.H., 685 F.3d at
240; further citation omitted)). Indeed, the entire purpose
underlying the IDEA is remedial and compensatory education is meant
“to make up for prior deficiencies.” Reid, 401 F.3d at 522. This
Court agrees with SRO Bates’ finding that no compensatory education
was required to compensate A.K. for the denial of [a] FAPE because
any deficiencies he had suffered already had been mitigated through
his pendency placement. Therefore, A.K. was in the “position []he
would have occupied had the [D]istrict complied with its
obligations under the IDEA.” M.M., 2017 WL 1194685, at *8; see
also Reid, 401 F.3d at 518. ---- ----
Furthermore, although requesting compensatory services,
Plaintiffs fail to provide this Court with any information as to
what those services might be or how they would make A.K. whole.
In pursing such relief, Plaintiffs merely claim that they seek
reimbursement for “‘post-secondary’ education, which will be
necessary to procure after [A.K.] graduates and/or ‘ages out’ of
the defendant district, so as to ‘make up’ for the education that
the plaintiff has been deprived.” (Pls. Mot. at 19 n.18.)
However, the record evidence fails to show that compensatory
education is required in order for A.K. to “catch up” to where he
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should have been absent the denial of a FAPE. See S.A., 2014 WL
1311761 at *7.
Finally, Plaintiffs’ clam that absent an award of
compensatory education, there is no “incentive” for the District
to “ever change its ways” and that the District will “never face
any recourse whatsoever, as long as [A.K.] is receiving educational
services throughout ‘pendency.’” (Pls. Mot. at 14.) However,
Plaintiffs’ desire to punish the District would not serve the
remedy’s purpose of putting the student in the position he would
have been in had the District provided him with a FAPE. See Polera
v. Bd. of Educ., 288 F.3d 478, 486 (2d Cir. 2002) (“The purpose of
the IDEA is to provide educational services, not compensation for
personal injury, and a damages remedy--as contrasted with
reimbursement of expenses--is fundamentally inconsistent with this
goal.”) Thus, awarding compensatory education here when there is
“no discernible lost progress” is unwarranted and “would be akin
to awarding damages which is not appropriate under the IDEA.” A.S.
v. Harrison Twp. Ed. of Educ., No. 14-CV-0147, 2016 WL 1717578, at
*4 (D.N.J. Apr. 29, 2016) (affirming the ALJ’s determination that
compensatory education was unnecessary since the student “was on
the right educational path and did not require restoration”),
reconsideration denied in part, and granted in part on other
grounds, No. 14-147, 2016 WL 4414781 (D.N.J. Aug. 18, 2016)).
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In sum, finding the SRO’s Decision is supported by a
preponderance of the evidence, the Court affirms the SRO’s
determination that there is no basis for an award of compensatory
education for the denial of a FAPE for the 2019-20 academic year.
CONCLUSION
Accordingly, IT IS HEREBY ORDERED that Plaintiffs’
Motion for partial summary judgment (ECF No. 15) is DENIED.
SO ORDERED.
/s/ JOANNA SEYBERT Joanna Seybert, U.S.D.J.
Dated: March 30,2022 Central Islip, New York
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