E.M. v. New York City Department of Education
758 F.3d 442
| 2d Cir. | 2014Background
- E.M., a low-income mother, unilaterally enrolled her severely autistic daughter N.M. at a private learning center (RFTS) for 2008–2009 after rejecting the NYC DOE’s proposed IEP placing N.M. in a 6:1:1 special class that provided limited 1:1 services.
- E.M. signed an enrollment contract stating she and her husband assume "complete financial responsibility" for tuition (~$85,000/year); RFTS received no tuition payment and apparently agreed to forbear while E.M. sought DOE funding.
- E.M. requested an impartial hearing under the IDEA claiming the DOE denied N.M. a FAPE and sought direct retrospective payment of tuition to RFTS.
- The IHO denied relief for lack of standing, finding E.M. had not paid and was not obligated to pay tuition; the SRO agreed on standing and then upheld the IEP’s substantive adequacy, relying in part on retrospective testimony that teachers would provide de facto 1:1 care.
- The district court found E.M. had Article III standing and deferred to the SRO’s substantive ruling; E.M. appealed. The Second Circuit considered standing and whether the SRO improperly relied on evidence extrinsic/retrospective to the written IEP.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing to seek direct retroactive payment of private-school tuition | E.M. argues she has standing both because denial of a FAPE is an injury and because her signed enrollment contract obligates her to pay (or at least exposes her to liability) | DOE contends standing requires a financial injury; E.M. paid nothing and is not obligated to pay, so direct payment would not redress any concrete injury | Court held E.M. has standing: her written contract (or at minimum an implied obligation/"loan" arrangement) exposes her to possible liability, which is a cognizable injury redressable by direct payment |
| Proper basis for evaluating whether an IEP provided a FAPE | E.M. argues the 6:1:1 IEP was substantively inadequate given N.M.’s need for full-day 1:1 services | DOE and SRO relied on hearing testimony that teachers/paraprofessionals would provide additional 1:1 support beyond what the IEP listed | Court held SRO erred: under Second Circuit precedent, evaluators may not rely on retrospective testimony that modifies written IEP terms; IEP must be judged prospectively as written |
| Whether extrinsic testimony about how a placement "would have" been implemented can cure an IEP deficiency | E.M. argues retrospective assurances cannot cure a deficient IEP | DOE argues such testimony explains how the offered placement would operate and supports adequacy | Court held retrospective testimony that effectively modifies the IEP (e.g., promises of 1:1 beyond the IEP) is impermissible under R.E. |
| Remedy and remand | E.M. seeks direct retroactive payment to RFTS if IEP is found inadequate | DOE contends direct payment must be contingent on plaintiff showing a legal obligation to pay | Court remanded for further proceedings (district court may decide merits or remand to state officers) after vacating district-court judgment; left equitable factors for district court to consider if merits favor E.M. |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing requires injury in fact, causation, redressability)
- Sch. Comm. of Town of Burlington v. Dep’t of Educ., 471 U.S. 359 (parents may unilaterally place child in private school and seek reimbursement if public placement violated IDEA and private placement appropriate)
- Florence Cnty. Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7 (Burlington framework applies; private placement may be reimbursed)
- Winkelman ex rel. Winkelman v. Parma City Sch. Dist., 550 U.S. 516 (parents have IDEA-based rights and standing)
- Forest Grove Sch. Dist. v. T.A., 557 U.S. 230 (IDEA remedies and Burlington framework preserved after statutory amendments)
- R.E. v. New York City Dep’t of Educ., 694 F.3d 167 (2d Cir.) (IEP must be evaluated prospectively; retrospective testimony cannot be used to alter written IEP terms)
- Emery v. Roanoke City Sch. Bd., 432 F.3d 294 (4th Cir.) (no standing to seek reimbursement when plaintiff incurred no out-of-pocket loss and requested relief would be a windfall)
- S.W. v. New York City Dep’t of Educ., 646 F. Supp. 2d 346 (S.D.N.Y.) (district court recognized standing based on statutory right to education at public expense even where parent had not paid tuition)
- Mr. & Mrs. A. ex rel. D.A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403 (S.D.N.Y.) (direct retroactive payment may be appropriate where parents lack resources to front tuition and private school agreed to enroll without advance payment)