UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK U.S. DISTRICT COURT -----------------------------------------------------------X EASTERN DISTRICT OF NEW YORK C.K. and K.K., individually and on behalf of A.K., LONG ISLAND OFFICE MEMORANDUM Plaintiffs, AND ORDER
- against - Civil Action No. 22-2265 (GRB)(SIL) BALDWIN UNION FREE SCHOOL DISTRICT,
Defendant. -----------------------------------------------------------------X GARY R. BROWN, United States District Judge:
Plaintiffs C.K. and K.K. (“Parents”), individually and on behalf of their child, A.K.,
(collectively “plaintiffs”) brought suit against defendant Baldwin Union Free School District
(“defendant” or the “District”) pursuant to the Individuals with Disabilities Education Act
(“IDEA”), 20 U.S.C. § 1400 et seq., regarding the provision of a free appropriate public education
(“FAPE”) and unilateral placement of A.K. Docket Entry (“DE”) 1. Both sides now move for
judgment on the pleadings. Since the District’s Individualized Education Plan (“IEP”) offered
A.K. a FAPE for the 2019-2020 and 2020-2021 school years, Plaintiffs are not entitled to a tuition
reimbursement for those school years. Therefore, plaintiffs’ motion for judgment on the pleadings
is DENIED, and defendant's motion is GRANTED.
Procedural Background
Plaintiffs requested a hearing before an Impartial Hearing Officer (“IHO”). DE 1-4. On
September 24, 2021, an IHO concluded that the District had not provided A.K. with a FAPE for
the 2019-2020 and 2020-2021 school years. Id. Upon the District’s appeal, however, a State
Review Officer (“SRO”) reversed and found that the District had, in fact, offered A.K. a FAPE
during the 2019-2020 and 2020-2021 school years. DE 1-3. The Parents commenced the instant
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action by filing a complaint on April 21, 2022. DE 1. The parties then filed the instant cross-
motions for judgment on the pleadings on December 16, 2022. DE 14-1; DE 14-3.
Factual Background
The following facts are relevant for the purposes of these motions. A.K. is classified as a
student with emotional disturbance and has been diagnosed with attention deficit hyper-activity
disorder (“ADHD”), oppositional defiant disorder (“ODD”), major depressive disorder (“MDD”),
and social anxiety disorder (“SAD”). DE 1-5. A.K. attended a District public school for
kindergarten, a non-public school for first through fourth grade, and a different non-public school
for fifth grade. Id. A.K. returned to the District middle school for the 2017-2018 school year. Id.
Prior to the 2017-2018 school year, a Committee on Special Education (“CSE”) was convened and
found the student to be eligible for special education, and therefore entitled to the benefits of the
IDEA Act, including a FAPE. Id. For these purposes, the Court considers only the years at issue
identified by the IHO and SRO, 2019-2020 and 2020-2021, during which the Parents unilaterally
placed A.K. at Fusion Academy (“Fusion”), a private. 1:1 institution that has not been approved
by the State Commissioner of Education as a special education school See id.
2019-2020 (Eighth Grade)
The CSE held two meetings to develop A.K.’s IEP during the 2019-2020 school year. DE
1-4. The first meeting took place on June 20, 2019, prior to the start of A.K.’s eighth grade year.
Id. At this meeting, the CSE reviewed an evaluation done by a private neuropsychologist hired by
A.K.’s parents, Dr. Marks. Id. Dr. Marks’ report described A.K. as an “intellectually gifted
youngster” who has difficulty adhering to established rules. Id. Dr. Marks recommended that the
student be placed in “a private academic setting designed to address the needs of emotionally
fragile and dysregulated youth.” Id. Dr. Marks also indicated that the student reported feeling
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“under-stimulated” which “conspires with his mood/anxiety and ADHD symptoms” and causes
him to “give up on school and creates an obstacle to ‘fulfilling peer relationships.’” DE 1-4 at 13.
During his testimony, Dr. Marks conceded that he did not speak to anyone from the middle school
or review the curriculum prior to rendering his opinion. Id.
A.K.’s seventh grade social studies teacher testified that the student interacted well with
his peers and had recently received a grade of 100 on a group project. Id. He also noted, however,
that A.K. was having trouble completing homework for the class. Id. A.K.’s seventh grade English
language arts teacher, Ms. Thompson, testified that the student was “doing very well, had friends
in his class, was always respectful, would engage in class discussion, and do his work.” Id. She
noted the same concern as the social studies teacher though, citing the student’s failure to complete
his homework for the class. Id. The student’s participation in the chess club and robotics club
during the prior school year was also noted. DE 1-4 at 14.
The June 2019 CSE created an IEP with specific guidelines and goals for A.K.’s eighth
grade year. Id. Pursuant to the IEP, A.K. was to receive supplementary aids, services, and program
modifications that included: one session per week of group counseling, relaxed homework
modifications, parent counseling and training, refocusing and redirection, the use of graphic
organizers, and presentation choices for long-term projects in ELA, science, and social studies. Id.
Two social-emotional goals were set forth in the 2019-2020 IEP. Id.
A.K. attended Baldwin Union Free Middle School for the 2019-2020 school year and was
enrolled in honors classes for social studies, mathematics, and science. Id. A.K’s report card for
the first marking period of the 2019-2020 school year reflected the following final averages: ELA,
70; social studies, 81; mathematics, 96; science, 96; Italian 1, 92; health, 55; and physical
education, 80. As a final overall average for the first marking period, the student achieved an 82.
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Id. And since 2018, A.K. had also been attending supplemental math and English classes at Fusion
Academy. DE 14-5 at 30; DE 14-3 at 14.
The second CSE meeting took place on October 24, 2019, and included a review of the
current IEP and a review of a private psychological evaluation of the student requested by the
parents. DE 1-3. While testimony from A.K.’s teachers and progress report reflected that he was
thriving in science, mathematics, and Italian 2, the student was struggling to participate and
complete required work in ELA and health. Id. The CSE modified the student’s IEP to include
the following: encouraging the student to seek extra help “in areas he found challenging,” and
providing access to a computer to type class work and exams. Id.
The private psychiatrist who evaluated A.K. testified that A.K.’s issues were “less
academic and more emotional.” Id. On that basis, the parents and their attorney disagreed with
the CSE’s revised IEP recommendations and asserted that A.K. should be placed full-time at
Fusion Academy to address both his academic and social-emotional needs. Id. However,
representatives of the District reported that A.K. was not visiting the school nurse’s office for
somatic complaints as frequently as he had the previous year. DE 1-7 at 22. Dr. Galanter, a private
psychiatrist, admitted that while A.K. was unhappy at the District middle school, his in-school
behavior had improved significantly since the previous year. Id.
A.K.’s final overall averages in each class during the 2019-2020 school year were as
follows: ELA, 77; social studies, 84; mathematics, 98; science, 97; Italian, 89; health, 73; and
physical education, 83. Id. In addition, A.K. achieved both social-emotional goals set forth in the
2019-2020 IEP. Id.
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2020-2021 (Ninth Grade)
The CSE held a meeting for the 2020-2021 school year on June 9, 2020. Id. The CSE
focused largely on the student’s social-emotional progress and considered reports from A.K.’s
parents, teachers, a private psychologist, and a District social worker. Id. The psychologist noted
that the student was struggling with major depressive disorder and that he had an “emotional
reaction to school,” but that he was responding to the implementation of coping skills at home. Id.
The District social worker, who provided in-school services to the student, detailed A.K.’s
immense academic and emotional growth since the sixth grade. Id. At the meeting, the social
worker described the student’s successful integration into the large public-school setting and his
active participation in counseling. Id. The social worker stated that although A.K. has minimal
social interaction and he prefers to be alone, he has the ability and support system in place to
develop stronger peer connections. Id.
Based on these considerations, the CSE recommended that A.K. attend Baldwin High
School, the District high school, where he was accepted into the engineering program. Id. The
CSE created an IEP which included the following recommendations: continuation of counseling,
annual goals that focus on “resilience and social interactions,” modifications for homework,
implementation of due dates for project components to assist with long-term project completion,
additional bi-weekly 1 updates to parents to assist the student’s work completion, and quarterly
team meetings. Id. At the conclusion of the meeting, the parents again indicated that they believed
that the District high school was not the right placement for A.K., and Fusion would be best for
1 “‘Bi-weekly’ has evolved – somewhat inconveniently – to mean both something that occurs once every two weeks or twice per week (though the latter concept is subsumed by semi-weekly). Here, obviously, the Court uses this to reflect the former and more popular usage.” See Birthwright v. Advance Stores Co., Inc., No. CV 22-0593 (GRB)(ST), 2023 WL 5718633, at *1 (E.D.N.Y. Sept. 5, 2023).
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his social-emotional health. Id. The CSE ultimately refused to recommend the placement, stating
that Fusion is not an approved setting, and the District was able to offer the student a FAPE. Id.
Statutory Framework
“The IDEA seeks to provide all children with disabilities ‘a free appropriate public
education that emphasizes special education and related services.’” H.W. v. New York State Educ.
Dep't, No. CV 13-3873 (SIL), 2015 WL 1509509, at *1 (E.D.N.Y. Mar. 31, 2015) (quoting C.L.
v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 831 (2d Cir. 2014)). A FAPE “consists of
special education and related services tailored to meet the unique needs of a particular child, which
are reasonably calculated to enable the child to receive educational benefits, and provided in
conformity with an individualized educational program, or IEP.” Id. (quoting Reyes ex. rel. R.P.
v. New York City Dep't of Educ., 760 F.3d 211, 214 (2d Cir. 2014)); see also C.F. ex. rel. R.F. v.
New York City Dep't of Educ., 746 F.3d 68, 72 (2d Cir. 2014).
The law provides specific guidelines for the creation, implementation, and content of an
IEP. First, “IEPs must include a comprehensive statement of the educational needs of the
handicapped child and specially designed instruction and related services to be employed to meet
those needs.” C.F. ex. rel. R.F., 746 F.3d at 72 (purgandum 2). In addition, the IEP must be “likely
to produce progress, not regression, and must afford the student with an opportunity greater than
mere trivial advancement.” H.W., 2015 WL 1509509, at *1 (quoting T.P. ex rel. S.P. v.
Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 254 (2d Cir. 2009) (purgandum)). Furthermore,
an “IEP must be reviewed at least annually and revised to reflect the child's need.” Id. (citing 20
U.S.C. § 1414(d)(2)-(4)).
2 See Farmers Property and Casualty Insur. Co. v. Fallon, et al., No. 21-CV-6022 (GRB)(ARL), 2023 WL 4975977, at *3 n.6 (E.D.N.Y. Aug. 3, 2023) (discussing use of “purgandum” to indicate the removal of superfluous marks for the ease of reading).
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In New York, the responsibility for developing IEPs falls to the local CSEs, which 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. (citations omitted). The CSE must consider the following
four factors in developing an IEP for a particular student: “(1) academic achievement and learning
characteristics, (2) social development, (3) physical development, and (4) managerial or behavioral
needs.” H.W., 2015 WL 1509509, at *2 (citing N.Y. Comp. Codes R. & Regs (“NYCCRR”) tit.
8, § 200.1(ww)(3)(i)).
A parent dissatisfied with an IEP may challenge it in an impartial due process
hearing, before an IHO appointed by the local board of education. M.H. v. New York City Dep't
of Educ., 685 F.3d 217, 224 (2d Cir. 2012) (citing Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d
377, 379 (2d Cir. 2003)). “The parents may also unilaterally ‘enroll the child in a private school
and seek reimbursement for the cost of private school education from the local educational
agency.’” H.W., 2015 WL 1509509, at *2 (citing C.L., 744 F.3d at 831).
At the due process hearing, the school district bears the burden of proof, persuasion, and
production to demonstrate the appropriateness of the IEP, although a parent “seeking tuition
reimbursement for a unilateral parental placement shall have the burden of persuasion and burden
of production on the appropriateness of such placement.” M.H., 685 F.3d at 225 (quoting N.Y.
EDUC. LAW § 4404(1)(c)). The IHO's decision may be appealed to a SRO, an officer of the New
York State Department of Education. Id. Following such review, “either ‘party aggrieved’ by the
findings of the SRO ‘shall have the right to bring a civil action’ in either state or federal
court.” M.H., 685 F.3d at 225 (citing 20 U.S.C. § 1415(i)(2)(A)).
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Discussion
Standard of Review
A motion for judgment on the pleadings should be granted if it is clear from the pleadings
that “the moving party is entitled to judgment as a matter of law.” Burns Int'l Sec. Servs., Inc. v.
Int'l Union, 47 F.3d 14, 16 (2d Cir. 1995). In reviewing an IEP dispute, a federal court “must base
its decision on the preponderance of the evidence.” R.E. v. N.Y.C. Dep't of Educ., 694 F.3d 167,
184 (2d Cir. 2012). This procedure “requires a more critical appraisal of the agency determination
than clear-error review but nevertheless falls well short of complete de novo review,” C.F. ex rel.
R.F., 746 F.3d at 77 (quoting M.H., 685 F.3d at 244), a procedure which has been fairly
characterized as “modified de novo review.” See, e.g., H.W., 2015 WL 1509509, at *13 (citing
A.L. v. New York City Dep't of Educ., 812 F. Supp. 2d 492, 501 (S.D.N.Y. 2011)); P.K. ex rel. S.K.
v. New York City Dep't of Educ. (Region 4), 819 F. Supp. 2d 90, 103 (E.D.N.Y. 2011), aff'd, 526
F. App'x 135 (2d Cir. 2013).
“While federal courts do not simply rubber stamp administrative decisions, they are
expected to give ‘due weight’ to these proceedings, mindful that the judiciary generally “lack[s]
the ‘specialized knowledge and experience’ necessary to resolve ‘persistent and difficult questions
of educational policy.’” Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir.
1998). The amount of weight given to administrative decisions “will hinge on the kinds of
considerations that normally determine whether any particular judgment is persuasive, for example
whether the decision being reviewed is well-reasoned, and whether it was based on substantially
greater familiarity with the evidence and the witnesses than the reviewing court . . . [and the district
court's] acute awareness of institutional competence and role.” M.H., 685 F.3d at 244; accord C.F.
ex. rel. R.F., 746 F.3d at 77; H.W., 2015 WL 1509509, at *14. Where the findings of the IHO and
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the SRO conflict, the reviewing court should defer to the final decision of the SRO. A.C. and
M.C., 553 F.3d (2d Cir. 2009), so long as the SRO’s conclusions “are properly reasoned to meet
that deference.” M.H. v. NY City Dept. of Educ., 685 F.3d 217, 246 (2d Cir. 2012).
Where parents believe that a district’s IEP fails to offer their child a FAPE, “they may, at
their own financial risk, enroll the child in a private school and seek retroactive reimbursement for
the cost of the private school from the state.” Gagliardo, 489 F.3d at 111 (citations omitted). In
a tuition reimbursement case, the court engages in the three-pronged Burlington/Carter test where:
“(1) the [district] must establish that the student's IEP actually provided a FAPE; should the
[district] fail to meet that burden, the parents are entitled to reimbursement if (2) they establish
that their unilateral placement was appropriate and (3) the equities favor them.” H.W., 2015 WL
1509509, at *16 (citing Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 114 (1993)). Here,
since the District has adequately established that it provided A.K. with a FAPE, the Court need not
address the last two prongs.
To determine whether the District has provided a FAPE, the Second Circuit has set forth
the following two-part test:
The first part examines the procedural adequacy of the IEP, asking “whether the state has complied with the procedures set forth in the IDEA.” R.E. v. N.Y.C. Dep't of Educ., 694 F.3d 167, 190 (2d Cir. 2012) (quoting Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005)). Procedural violations will entitle parents to reimbursement only if they "impeded the child's right to a [FAPE], “significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a [FAPE] to the parents' child,” or “caused a deprivation of educational benefits.” 20 U.S.C. § 1415(f)(3)(E)(ii); see also R.E., 694 F.3d at 190. The second part of the test examines the substantive adequacy of the IEP by asking whether it was “reasonably calculated to enable the child to receive educational benefits.” Rowley, 458 U.S. at 207. “Substantive inadequacy automatically entitles the parents to reimbursement,” if the parents' alternative placement was appropriate and equitable considerations favor reimbursement. M.W., 725 F.3d at 143 (quoting R.E., 694 F.3d at 190).
T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 160–61 (2d Cir. 2014).
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Substantive Adequacy of FAPE 3
The IDEA requires a FAPE be “reasonably calculated to enable the child to achieve passing
marks and to advance from grade to grade.” Rowley, 458 U.S. at 200. Expanding upon Rowley,
the Supreme Court has ruled that 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.
v. Douglas Cnty. Sch. Dist. RE-1, 580 U.S. 386, 399 (2017). The “adequacy of a given IEP turns
on the unique circumstances of the child for whom it was created.” Id. at 404. An IEP must
include goals and services to enable a child to make both academic and functional progress. Id. at
399. A FAPE need not, however, “maximize the potential of handicapped children commensurate
with the opportunity provided to other children.” Rowley, 458 U.S. at 189–90. The Supreme Court
has found that Congress intended that the IDEA “open the door of public education to handicapped
children, not guarantee any particular level of services once inside.” Id. at 192.
Additionally, after considering an appropriate continuum of alternative placements, the
school district must place each disabled child in the least restrictive educational environment
(“LRE”) that is consonant with his or her needs. T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist.,
752 F.3d 145, 161 (2d Cir. 2014). To determine whether the LRE requirement is met, the Second
Circuit has set forth a two-step, “flexible, fact-specific analysis” for district courts to determine:
(1) “whether education in the regular classroom, with the use of supplemental aids and services,
can be achieved satisfactorily for a given child,” and (2) “if not, then whether the school has
mainstreamed the child to the maximum extent appropriate.” Id.
Here, the district’s FAPE for the relevant school years was substantively adequate. The
SRO reviewed A.K.’s report cards and progress reports, as well as testimony from his teachers,
3 Neither party has raised any issues concerning procedural violations, and, as such, the Court need only discuss the substantive adequacy of the FAPE.
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school support professionals, and private psychologists and psychiatrists. During the 2019-2020
school year, A.K. received adequate grades to advance to the District high school the following
year. He was accepted into the high school’s engineering program with the opportunity to take
honors and advanced placement classes. In terms of his functional progress, the SRO reviewed
testimony from A.K.’s teachers, who discussed his improved in-class behavior and successful
interactions with peers. The SRO also considered the testimony of the District social worker who
was impressed with A.K.’s major social-emotional improvement since the sixth grade, his active
participation in counseling, and his potential to foster relationships with peers. A.K. also
successfully achieved both social-emotional goals set forth in the 2019-2020 IEP.
The SRO also considered the testimony that A.K.’s intellectual giftedness in certain
subjects can lead to frustration and other emotional turmoil for the child. Although this might
suggest A.K. was not progressing in light of his full potential, the District was not required to
maximize this potential under Rowley. See M.H. v. New York City Dep't of Educ., 685 F.3d at 245
(“the ‘appropriate’ education” mandated by IDEA does not require states to “maximize the
potential of handicapped children.”) (quoting Rowley, 458 U.S. at 189–90).
Additionally, the district has satisfied the LRE requirement. In satisfaction of the first
prong, 4 A.K.’s 2019-2020 IEP included one session per week of group counseling, relaxed
homework modifications, parent counseling and training, refocusing and redirection, the use of
graphic organizers, and presentation choices for long-term projects in ELA, science, and social
studies. DE 1-4 at 14. With these aids and services, A.K. received passing marks in all his classes
and achieved both social emotional goals outlined by the IEP. Id. The 2020-2021 IEP included a
continuation of counseling services, a Chromebook for writing, and relaxed homework
4 Since the District has satisfied the first prong of the LRE requirement, the Court need not address the second prong, which determines whether the District mainstreamed A.K.
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modifications. Id. Although A.K. did not attend Baldwin High School for the 2020-2021 school
year, the SRO considered this IEP adequate in light of A.K.’s demonstrated academic and social
abilities during the 2019-2020 school year.
The SRO reviewed the appropriate legal standards and, in a well-reasoned decision,
reversed the IHO’s holding. Both the evidence and the hearing record before the Court
demonstrate that the District offered A.K. a free appropriate public education in the least restrictive
environment for the 2019-2020 and 2020-2021 school years. Based on the foregoing reasons, the
District properly provided a FAPE to A.K. in the LRE during the 2019-2020 and 2020-2021 school
years.
Conclusion
For the reasons set forth above, plaintiffs' motion for judgment on the pleadings is
DENIED, and defendant's motion is GRANTED. The Clerk of Court is respectfully directed to
enter judgment for defendant and close the case.
SO ORDERED.
Dated: September 21, 2023 Central Islip, New York
/s/ Gary R. Brown GARY R. BROWN United States District Judge
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