D.C. ex rel. E.B. v. New York City Department of Education
950 F. Supp. 2d 494
S.D.N.Y.2013Background
- D.C. sues on behalf of her son E.B. under IDEA and Section 504 against NYC Department of Education and Chancellor Walcott.
- E.B. has autism, developmental disorders, and a severe seafood allergy; he attends the Rebecca School, a private school, for the 2010-2011 year.
- As of May 2010, no IEP existed for 2010-2011; a CSE met to craft an IEP recommending a 6:1:1 class and seafood-free environment.
- D.C. entered into a Rebecca School enrollment contract for 2010-2011 with a $92,100 tuition; contract allowed termination if a Department-recommended placement was found.
- D.C. unilateral placement at Rebecca School occurred after a June 2010 FNR proposed P188 placement and a late tour of P188 revealed concerns about seafood in the environment.
- IHO found the IEP and P188 placement could provide a FAPE and Rebecca School was appropriate; SRO affirmed only the FAPE finding and did not reach placement or equities.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the IEP adequate and appropriate under Burlington doctrine? | D.C. argues IEP failed to ensure seafood-free environment and appropriate supports. | Department contends IEP was adequate and could be implemented by proposed placement. | IEP inadequate; private placement appropriate; reimbursement warranted |
| Could P188 provide a seafood-free environment to implement the IEP? | P188 could not guarantee seafood-free environment at time of placement decision. | P188 could implement seafood protections; retrospective testimony improper. | P188 could not reasonably provide seafood-free environment at decision time; improper placement |
| Is the private Rebecca School placement appropriate to E.B.’s needs? | Rebecca School offers better, individualized support and DIR-focused methods suitable for E.B. | Rebecca School not disqualified; it could meet E.B.’s needs with proper supports. | Rebecca School found appropriate; supports and progress shown |
| Do equities favor reimbursement for private placement under Burlington/Gagliardo? | Equities favor reimbursement given cooperation and timing of unilateral placement. | Cooperation questionable; timing to unilateral placement undermines reimbursement. | Equities favor reimbursement; award of tuition and costs |
| Does Section 504 claim survive given the IDEA outcome? | Denial of FAPE under Section 504 entitles damages independent of IDEA. | Section 504 claim requires independent showing of discrimination; facts insufficient. | Section 504 claim denied; disputes remain |
Key Cases Cited
- Gagliardo II v. Arlington Central Sch. Dist., 489 F.3d 105 (2d Cir. 2007) (two-step Burlington framework for IDEA reimbursement)
- Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119 (2d Cir. 1998) (FAPE standards and least restrictive environment)
- Bd. of Educ. v. Rowley, 458 U.S. 176 (U.S. 1982) (ISEP and educational benefit standard)
- Burlington Sch. Comm. v. Dep’t of Educ., 471 U.S. 359 (U.S. 1985) (two-part test for private school reimbursement; equity factors)
- R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167 (2d Cir. 2012) (limits on retrospective testimony implementing IEPs)
- M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217 (2d Cir. 2012) (courts’ deference and appraisal of administrative decisions)
- Frank G. v. Bd. of Educ., 459 F.3d 356 (2d Cir. 2006) (private placement adequacy and supports required)
- S.W. v. N.Y.C. Dep’t of Educ., 646 F. Supp. 2d 346 (S.D.N.Y. 2009) (equitable relief in private school tuition context)